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Death by medical negligence – how to make a claim

Category: Medical Negligence

Last Updated: 24th Sep 2021

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Medical Negligence Solicitor - Degree in Law (LLB)

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Losing a loved one is never easy. Despite the best efforts of healthcare professionals, it is not always possible to save someone following a serious illness or accident. It is a life-changing experience for family and friends, and it may take a long time for them to move on.

However, the feelings of distress and pain felt following someone's death can be significantly intensified if it was due to medical negligence. Where there is a strong belief that a person’s death could have been avoided, or they were let down by those responsible for their care, it can make an already emotional time even more traumatic for their loved ones.

In these unfortunate circumstances, those who depended on the deceased financially, or for services they provided for free, may be entitled to make a claim for compensation. While no amount of compensation can replace what has been lost, it can ease the financial burden on their family, and make their lives beyond this tragedy easier.

If you or someone you know has lost a loved one due to an inexcusable medical mistake and wish to make a claim, we outline below the steps you can take to secure the compensation you deserve.

Who can make a claim following a loved one’s death?

Only one claim can be brought for compensation, and whoever brings that claim must include the claims of everyone who may be entitled to compensation.

If the deceased had written a Will before their death, then the executor of the Will will usually bring the claim. In order to do this, the executor must apply for a Grant of Probate, which gives them official permission to act on behalf of the deceased’s estate.

If the deceased died intestate (without a Will) then a family member – typically a spouse, child or parent of the deceased – can apply for a Grant of Letters of Administration, which gives that person official permission to act on behalf of the deceased’s estate.

While the executor or administrator is the sole individual who brings the claim, they will do so on behalf of multiple people who are each entitled to receive compensation. Once the compensation is received, the executor or administrator is then responsible for distributing it between all of those who are entitled.

Those who may claim include the following:

  1. Those who are named as beneficiaries of the deceased’s estate in a Will or entitled under intestacy law. They are entitled to compensation for the deceased’s pre-death pain, suffering and loss of amenities (also known as general damages).

  2. Those who fall into one of the categories of people entitled to claim a bereavement award under The Fatal Accidents Act 1976.

  3. Those who were dependent on the deceased either financially or for services that the deceased provided to them at the time of the death or who had a reasonable expectation that they would become so dependent in the future.

Under the Law Reform (Miscellaneous Provisions) Act 1934, any beneficiary of a deceased’s estate can receive a proportion of the general damages that the claimant would have received for any pre-death pain, suffering or loss of amenity that the deceased suffered as a result of medical negligence.

For example, if the deceased’s misdiagnosis meant that they suffered avoidable pain prior to their death, or were unable to work or take part in hobbies due to this, then the beneficiaries can claim compensation for that.

Compensation for general damages becomes part of the residue of an estate. The residue is the remainder of a person’s estate after specific gifts, debts, funeral expenses and Inheritance Tax have been paid.

Those who were dependent on the deceased, either financially or for services, can also claim compensation, in accordance with the Fatal Accidents Act 1976.

Dependency is a matter of fact, and it relies on someone proving that they relied on the deceased, either financially or received services from them, or both. Dependents must fall into one of the following categories:

  • A surviving spouse or civil partner of the deceased

  • A former spouse or civil partner of the deceased (for at least two years)

  • Someone who cohabited with the deceased for at least two years

  • The deceased’s children, grandchildren, etc.

  • The deceased’s parents, grandparents, etc.

  • Any persons treated as a child, grandchild, parent, etc. of the deceased

For example, if a husband passes away as a result of medical negligence, his wife may have depended on his income to make their mortgage payments and maintain their family’s quality of life. The husband may have also been responsible for a number of household chores, or for driving their children to school.

In this scenario, the wife would be able to claim compensation that reflects the impact of this loss on her financially or the financial impact of the loss of the services her husband provided.

Services provided by the deceased can be far-reaching, including:

  • Walking the dog

  • DIY

  • Babysitting

  • Gardening

When the executor or administrator of the claimant’s estate brings the claim, they make the claim on behalf of everyone who falls within the circumstances above.

Bereavement Award

In addition to the above, certain relatives can also claim a fixed bereavement award if the deceased’s death was caused by medical negligence. Those who can claim are limited to:

  • The deceased’s husband, wife or civil partner

  • The parents or mother (if the parents are unmarried) of the deceased, if the deceased was under 18 and unmarried

The bereavement award is fixed. It is £15,120 for deaths on or after 1 May 2020.

Funeral Expenses

The compensation can also include a sum to reimburse the person who paid for the funeral and any other expenses associated with it.

How to make a claim after someone’s death

The executor or administrator will instruct a medical negligence firm like Gadsby Wicks to manage the claim. They will have to give their solicitor details of everyone who may be entitled to compensation, either because they are a beneficiary of the estate, they were dependent on the deceased, are entitled to a bereavement award, or all three.

The solicitors will then contact everyone to find out exactly what financial support or services they received from the deceased. The individuals are responsible for providing evidence that demonstrates their dependency – bank statements, bills, witness statements, etc.

This evidence is crucial in quantifying the amount of compensation granted to each of the deceased’s dependents.

It is important to remember that time limits also apply to claims arising out of a death. Generally the claim must be brought within three years of the death, so long as the deceased could have brought a claim at the time of their death. While there are exceptions, we highly recommend bringing a claim as soon as possible.

The claim will then be investigated like any other form of medical negligence claim. As specialist solicitors, we investigate the care or treatment that the deceased received and work with relevant medical experts to determine whether the death was directly caused by the negligence of a healthcare professional.

What if a claimant passes away before their claim is over?

Sadly, there are circumstances where a claimant does not survive to see the conclusion of their claim. Often claimants suffer serious complications due to the negligent care or treatment they received, which may shorten their life expectancy or make them more vulnerable to health emergencies. Sometimes they may die from an unrelated cause before a claim is concluded.

For example, if a misdiagnosis caused a claimant’s cancer to spread and become terminal, they may not live long enough for their claim to reach its final settlement.

In these unfortunate situations, their claim does not die with them. Section 1 of the Law Reform (Miscellaneous Provisions) Act states:

Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.

In layman’s terms, if it was possible to start or continue a claim at the date of death, then entitlement to bring or continue a claim passes onto their estate. If no claim has been started, then the three-year limitation period starts afresh.

Death can significantly affect the value of a claim:

  • There will no longer be a claim for the costs of future care, treatments or loss of earnings for the deceased

  • General damages may be reduced

Specialist support at a difficult time

At Gadsby Wicks, we understand that compensation can only go so far to help following the loss of a loved one. Although we cannot turn back the clock, we can help provide a family with the financial security to manage their future and come to terms with the death of a loved one at their own pace.

If you believe that someone you care about suffered medical negligence that contributed to their death, we are here to support you during this challenging period. Backed by over 25 years of specialist advice, our solicitors work tirelessly to secure the justice, answers and compensation you deserve.

Get in touch with our team today for more information.

Disclaimer

All content contained within this article is meant for general information only – this should not be treated as a substitute for medical advice from your doctor or another healthcare provider. If you require legal advice specific to your situation, please contact our team directly.

Gadsby Wicks is not liable for any diagnosis made from the content of this article, nor does it endorse any service or external site linked to within the article.

Always consult your GP if you are concerned about your health and wellbeing, or speak to us if you require legal advice.