Medical negligence claims are complicated as it takes time to establish if a claim has merit and resolving them usually takes months, if not years. Unfortunately, it is a sad fact that sometimes a client (the claimant in their case) may pass away before their claim is finalised. When this happens, the claim can continue in the name of the personal representative administering their estate (usually the executor of their will who is often someone close to our client or a professional such as a solicitor) who takes up the baton on behalf of their beneficiaries. If our client dies intestate (i.e. without a valid will) then it is usually the next of kin who continues the claim on behalf of the estate.
The legislation under which a medical negligence claim can be continued is the Law Reform (Miscellaneous Provisions) Act 1934. Understandably, the death of the claimant before the claim has settled introduces another layer of complication to an already involved process, something that a personal representative should be mindful of. The time limit for pursuing a medical negligence claim is three years from the date of the injury or from the date when the claimant became aware of the injury. However, if their claim is already underway but has not yet reached court before their death, the clock restarts from the date of death.
Compensation amount will be adjusted
Understandably, some aspects of the compensation likely to arise from a claim pursued after the death of the claimant will change as certain elements, such as claiming for loss of future earnings or the cost of future care, will no longer be relevant, unless there are financial dependants, as explained below. The success of each medical negligence claim will depend on individual circumstances – there is no formula for calculating the amount of compensation due as everyone’s situation is different. A claim successfully completed after the death of a claimant could include an award for pain, suffering and loss of amenity as well as loss of earnings or pension, cost of medical treatment, travel expenses and any care / equipment required during their lifetime.
Additional claims following death
A Bereavement Award is a lump sum of £15,120 (current rate) which a very limited number of people are legally entitled to claim. Potential claimants include a spouse or civil partner of the deceased, the unmarried partner of the deceased providing they lived together for at least two years before death, and the parents (or mother if the parents are unmarried) of the deceased if they were under the age of 18 and unmarried when they died. Compensation can also be sought for funeral expenses.
All dependants who relied financially on the deceased may be able to make a claim under the Fatal Accidents Act 1976. The deceased’s personal representative may be able to apply for additional compensation for those dependants so that they are no worse off than they would otherwise have been.
Talk to us
Losing a member of the family is always distressing, made worse if the death occurs as a result of negligence. However, even if the deceased had not started a claim before their death, their personal representative can do so on behalf of the deceased’s beneficiaries so they are not left financially as well as emotionally bereft. However, this is a very complex area of law but one in which we are well-versed. If you are a personal representative faced with this situation, do get in touch and we would be delighted to talk through your options.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
