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Can you make a claim for compensation following the death of a loved one as a result of clinical negligence?
Often, when we have suffered the loss of a loved one, we do not wish to think about claims for compensation or investigating the reasons for their death. However, in cases where there has been clear clinical negligence you can pursue a claim in order to get answers about what happened to them and financial compensation.
In order to bring a claim where a death has occurred it needs to be established:
1. There was a duty of care owed to the deceased;
2. There was a breach of that duty;
3. That breach caused the deceased’s injury/death;
4. There was some financial loss resulting from that injury/death
An Executor of the deceased’s will, or someone who has taken out Letters of Administration where there was no will, can bring a claim on behalf of the deceased’s estate. Any settlement monies would then be distributed as per the requirements of the estate, or in accordance with the intestacy rules where there was no will.
A Grant of Probate or Letters of Administration will be required in order to issue proceedings at Court or at the settlement of the claim and this is something we can assist with as part of pursuing a claim.
Anyone who was dependent on the deceased financially can also bring a claim for the loss of that dependency. However, there is a limited class of people, as outlined by statute, who constitute the definition of a ‘dependent’ and can therefore successfully bring a dependency claim.
The categories of dependents are not limited to, but primarily include:
– Wife or Husband (or former Wife or Husband)
– Civil Partner (or former Civil Partner)
– Anyone living with the Deceased immediately before the date of death and for at least 2 years previously
– Any Parent, Child, Brother, Sister, Uncle or Aunt
However, it is not enough to simply fall into one of the above categories. That person must also suffer some financial loss as a result of the death of the family member in order to bring a claim as a dependent.
Although the list below won’t apply to everyone in every case, these are the potential claims that can be made for compensation following the death of a loved one:
1. Damages for pain, suffering, and loss of amenity on behalf of the deceased – This would include compensation for any pain the deceased suffered prior to their death as a result of the negligence. Some compensation can also be awarded where the deceased lost consciousness (so won’t actually be feeling any pain) as a result of the negligence;
2. Any losses encountered by the deceased prior to their death – for example, any loss of earnings suffered as a result of the negligence (i.e. if the deceased was in hospital for a time prior to their death and would have otherwise been at work earning money);
3. Loss of financial dependency – As outlined above, a claim for loss of financial dependency can be brought by different classes/categories of people, and this may include loss of any money brought into the household, loss of employment benefits and pension losses;
4. Bereavement award – This claim can only be made by the spouse of the deceased and the parents of a child who dies. . This award is set by statute and is currently £12,980 where the death occurred after 1 April 2013;
5. Funeral expenses – The cost of the funeral, where reasonable, can be claimed, together with reasonable expenses such as a headstone, cost of a wake.
The law provides financial compensation as the only remedy for clinical negligence claims. However, we at the Clinical Negligence Team also seek some redress or a formal apology for the family from the Defendant where we can.
Generally speaking, whoever is bringing a claim resulting from a loved one’s death must do so within 3 years of the date of the death. There are exceptions to this rule however and therefore you should not assume that this will be the limitation period in all cases and advice should be sought at the earliest opportunity
It can often be difficult to know where to start or what to do where we have suffered the loss of a loved one. The Clinical Negligence Team have vast experience in these types of claims and, should you wish to discuss potentially bringing a claim following the death of a loved one, a loss of dependency claim, or if you simply want to know what your options are, then contact one of our team who will be pleased to discuss the process with you and offer you some free advice.