Losing a loved one is always a difficult time, especially when death is unforeseen and unexpected. The law can in some cases appear rather unjust when it looks at compensation claims where life is lost due to potential medical negligence, and family members can often feel let down by both the medical profession and the legal system.
This factsheet aims to help you to understand how we may be able to help you to identify your objectives and what you aim to achieve. Most people make contact with solicitors in the first instance as it is often difficult to know where to begin to deal with such tragedy.
You will firstly need to consider whether it is an explanation and apology you wish to seek or whether it is financial compensation you are seeking.
Should you wish to make a formal complaint regarding the treatment received, complaints should be made to the Chief Executive of the Trust responsible for the hospital where the deceased received treatment. It may be that the GP service failed the deceased and, if this is the case, then a complaint should be addressed to the Practice Manager at the deceased’s GP Practice. Should the deceased have received private medical treatment, a complaint should be made direct to the consultant or surgeon responsible for the treatment at their usual place of practice. You should receive a response to a formal complaint, providing the complaint is made within six months of treatment or death of a patient, and you will usually have to prove your relationship to the deceased for data protection and confidentiality reasons. If a complaint is made after the six month period, it is usually at the discretion of the responding body to provide a response to a complaint.
You may be satisfied with the outcome of the complaint process and not wish to take any further action. Most people are happy to know that everything that could possibly have been done was done or receive an apology where treatment fell short of the required standards and the treating physician or Trust accepts that they breached their duty of care to the deceased. Some people are then able to find closure and move on and begin to deal with their loss.
In some cases, family members find it difficult to understand the reasons for their loss and wish to investigate a claim for compensation. This is even more so the case where there is question as to whether death could have been avoided. Sometimes death is a natural consequence of the treatment or the initial condition and as a result, even if the treatment could be criticised it may not mean that a claim can be made.
It is important that you seek legal advice from a medical negligence solicitor to find out if you can claim compensation or not as these cases can be very complicated and an expert opinion could be vital.
Criteria required for a compensation claim and Time limits
To succeed in a claim for compensation you have to be able to prove that the treatment the deceased received was negligent - that is, careless or incompetent and falling below a reasonable standard. Sometimes things go wrong where there has not been negligence. You also have to prove that the negligence caused a worse outcome. Sometimes there are often reasons why the mistakes made no difference to the outcome.
There is a three year time limit for starting court proceedings for compensation. The time starts from the date of death and expires one day before. If the deceased was out of time to make a claim before they died then any right to make a claim will have expired but if the deceased was still in time at the time of death then the three years will commence from the date of death.
When there is medical negligence but a limited claim
When a loved one dies, sometimes that death brings to light an otherwise unknown condition that would have led to death in any event. It can be the case that it would either have led to death in a short space of time, or would have led to death, but at some stage in the future. In other words, that there was a reduced life expectancy as a result. In such a case, a claim can still be considered for the period that they would have survived but for the negligent treatment.
We have recently dealt with a case where a failure to diagnose bowel cancer following a specific test led to a six month delay in diagnosis, during which time our client was subjected to further invasive investigations. If the cancer had been diagnosed earlier, the length of the patient’s life could have been extended with the correct cancer treatment. Therefore, although the prognosis may have been poor in any event, there may be a claim if the length of life has been shortened due to medical negligence.
How we assess the value of a claim where there is a fatality
In the event that a claim can be made, the usual claim is for:
- Bereavement which is presently limited to £11,800 (£10,000 if death occurred prior to 1st January 2008), and only available to certain categories of persons, namely surviving spouses or parents of a minor child
- Funeral expenses
- Pain and suffering directly as a result of the negligence to the deceased, unless the death was instant
- Dependency. This is by far the biggest part of the claim and is based on both parties earnings and future earnings or pension. Dependency is available if there are classes of claimants who were dependent on the deceased, usually a partner or spouse, and children under 18 or in full time education. Medical negligence solicitors must now also take into consideration the Civil Partnership Act 2004.
There are also cases where the deceased had elderly parents who they were supporting, who would be classed as dependents to include loss of services or support where the spouse or partner undertook household assistance and other similar tasks, including DIY.
For many years the courts approach to dependency is a financial formula unless there are exceptional circumstances which suggest that the standard approach would not be appropriate. Re-marriage or marriage prospects does not affect the dependency. Dependency will consider the extent to which the remaining partner or claimant was dependent on the other in terms of income, future income, pension and services i.e. DIY.
Proposed changes to the Fatal Accidents Act 1976
In its response to the consultation “The Law on Damages”, the Government proposes to make changes to the Fatal Accidents Act 1976 to extend the categories of people eligible to claim damages for bereavement to include children under 18 for the death of a parent; cohabitants of at least two years' duration for the death of a partner; and unmarried fathers with parental responsibility for the death of a child under 18. The ability to claim as a "dependant" of the deceased person will also be extended to include any person who was being wholly or partly maintained by the deceased person immediately before the death. The response also proposes changes to the law in relation to damages for gratuitous care, which is care provided for an injured person free of charge by relatives or others, and on aggravated and restitutionary damages, which are awarded respectively to compensate the claimant for mental distress caused by the defendant's conduct and to take away unfair gains by a defendant.
To conclude, in order to make a successful claim it is necessary to establish that the death was caused by the negligent medical treatment. It is necessary to understand whether there were any medical conditions that would have affected the deceased’s ordinary life expectancy or would have limited the deceased’s ability to continue to work, which would reduce the value of the claim. If a claim can be successfully brought, the financial claim would be based on a financial calculation based largely on earnings, pension and services provided. The claim would be brought on behalf of those who were dependent to include children normally until they cease full time education and if appropriate other classes of persons.
This article is intended to be a rough guide only as to how a fatality can affect a claim for compensation. If you are thinking about making a claim on behalf of a deceased relative you should seek legal advice from Thompsons Solicitors’ medical negligence team, as every case would need to be evaluated on its own merits.
Last reviewed April 2018.