Losing a loved one is one of the most difficult things a person can experience during their lifetime. This experience can become even more distressing when it becomes apparent that their death was due to, or contributed to by failures of healthcare professionals to provide the standard of care expected of them.
Not only can this take an emotional toll on those closest to the person who has died, but this can often be compounded by financial strains following their death.
In these circumstances, compensation (or damages) can be claimed for the wrongful death of a loved one.
There are two main parts of a claim brought for death caused by medical negligence:
- On behalf of the estate for any pain, suffering, or loss of amenity, the deceased experienced before their death because of the negligence.
- For the financial impact of the loss of your loved one.
Who can make a claim?
This will be determined by whether your loved one left a Will prior to their death.
Where there was a Will, the executor(s) are considered to be the personal representatives and entitled to claim on behalf of the estate, for the benefit of the beneficiaries named in the Will. A Grant of Probate will have to be taken out to evidence this entitlement.
If the person died without making a Will, they are considered to have died intestate and the Rules of Intestacy identifies who is eligible to claim compensation in the following order of priority:
- Spouse or civil partner
- Children
- Parents
- Siblings
- Grandparents
- Aunts and uncles
A Grant of Letters of Administration will be needed to provide evidence to the Administrators of the estate.
Any dependent of the deceased is entitled to bring a claim for dependency.
There are two Acts under which claims for financial compensation can be made in a fatal claim:
Claims under the Law Reform (Miscellaneous Provisions) Act 1934
This covers claims made on behalf of the estate for losses your loved one would have been entitled to recover if they had survived, including:
- General damages – To reflect their pain, suffering, and loss of amenity from the date of injury up to their death.
- Special damages – These are claims for past losses and expenses incurred due to the negligence. For example past loss of earnings, medical expenses, or care costs. These losses are also calculated from the date of the injury up to death.
- The costs of the funeral where this was paid for by the estate.
You can read more about how general and special damages are calculated here.
Claims under the Fatal Accidents Act 1976
Under this Act, you can claim for the following:
- Statutory bereavement award (subject to the below criteria)
- Funeral expenses, if paid for by a dependent
- The loss of financial or services dependency
Bereavement Award
The law allows for a modest award payable to a strictly limited category of relatives to the person who has died. Since May 2020, the award is £15,120. The category of relatives able to claim this statutory award is limited to:
- A spouse or civil partner.
- A cohabiting partner (living with the Deceased for at least two years and immediately before their death).
- The married parents of an unmarried child under the age of 18 – the award is split equally between the parents.
- The mother of an unmarried child under the age of 18.
Dependency Claims
A claim can be brought by dependents if they can show they reasonably relied on the person who has died in some way; whether financially or otherwise.
Dependency claims can be brought in respect of a loss of financial support in the form of employment income, benefits or pensions. Claims can also be brought to financially compensate the loss of services or acts the dependent benefitted from prior to the death and which often has to be carried out by a professional at a cost following their death.
Regan v Williamson Award
This type of claim is established by case law, partly due to the limited category of people entitled to the bereavement award. This is known as an award for the ‘loss of love and affection’. However, this claim appears to compensate for the loss of an intangible benefit provided by a spouse or parent who has died, where this has not otherwise been covered by a dependency claim.
Comment
Whilst no amount of money can replace the loss of a loved one, compensation can help to alleviate financial burdens and provide a sense of justice.
Investigating and valuing claims for fatal injuries can be complex and sometimes even require the input of independent experts. No two case are ever the same and many factors will need to be thoroughly considered on a case-by-case basis to determine the likely value of compensation in a fatal claim. It is therefore imperative that you seek specialist legal advice at the earliest opportunity.
Contact us
Shrdha Kapoor is an Associate in our Medical Negligence team, which is ranked in Tier One by the independently researched publication, The Legal 500, and Commended in The Times Best Law Firms 2024.
At Nelsons we are highly experienced in supporting relatives throughout the claims process and obtaining appropriate compensation to reflect the suffering and losses attributable to clinical negligence.
If you are concerned that a loved one has suffered a death due to poor medical care or treatment, we are here to provide you guidance and support. Please contact Shrdha or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
Contact us