Losing a loved one is always emotionally challenging but when their death was caused by incorrect medical care it is natural that bereaved family members seek help to find out what went wrong. In some cases, particularly where the deceased left no dependants, the family may decide that seeking compensation is not their preferred way of finding answers, peace of mind or closure, but where the deceased left dependent children, a husband, wife, partner or elderly or disabled relatives for whom they provided care, a successful negligence claim can ease the financial hardship which follows a parent, breadwinner or family carer’s death.
We asked medical negligence solicitor, Tara Byrne, how she investigates and values cases arising from a death and why she believes they are so important to investigate.
What information do you need from a bereaved client who believes that negligent treatment has led to a loved one’s death?
I understand that it can be hard for bereaved relatives to talk about the upsetting events which led up to their loved one’s death. I try to guide clients supportively through our initial conversation so that I can advise them how best to proceed and whether we can help them with a claim.
In talking to a bereaved family member, it’s really important that I understand exactly what has happened, how and when the individual died and what the family member feels went wrong.
To understand whether an investigation should take place, I need to know:
- what symptoms the deceased experienced;
- what diagnosis, if any, had they have been given prior to their death;
- details about each of their visits to their GP or hospital and any advice or treatment they were given;
- the cause of death and whether a post mortem or inquest has taken place;
- details about the deceased’s family and work life at the time of their death.
Can anyone bring the claim on behalf of the deceased?
No. If there is a will, the executors are entitled to bring the claim. If there is more than one executor, then all of them must agree to pursue the claim. It is possible for one to deal with the claim if the others give their signed authority. Alternatively, if there is no will, then the person who wants to lead the claim will need to obtain letters of administration in their own name. My colleagues in Boyes Turner’s wealth protection team can help with this.
Is there a time limit for making a fatal medical negligence claim?
Yes, there is a three year deadline from the date of the death.
How are claims arising from a death funded?
Usually the case will be funded by a Conditional Fee Agreement (“no win no fee”) with After The Event insurance. This means that the client doesn’t have to pay any legal costs at the start of the claim and will pay nothing if the case is unsuccessful. In a successful claim the majority of the claimant’s legal fees are paid by the defendant.
I take great care in explaining the funding arrangement in detail to my clients to make sure they are entirely comfortable with the agreement. Where a claim, even if successful on its merits, is unlikely to be financially viable for the claimant, I let them know at the outset, as we would never advise a client to pursue a disproportionately expensive claim.
How do you investigate whether a GP or hospital acted negligently?
I need to establish that the negligent treatment caused or significantly contributed to the death. Each case is unique and my approach to each individual case depends on the circumstances of the death, however, the investigation always begins with gathering medical evidence. Once I have a signed authority from my client, I request the GP and hospital medical records and consider them carefully. I also take a detailed statement from my client and, if necessary, any other family members or friends, to record their recollection of what happened leading up to the death.
A successful medical negligence case depends on supportive expert evidence. Therefore, once I have the records and statements, my next step is to instruct experts in the relevant medical disciplines to comment on the care given to the deceased (to prove breach of duty), and the impact of that care and whether it caused or contributed to the death (to prove causation). My choice of experts depends on the type of treatment the deceased received, so for example, if the A&E care is a concern, I will instruct an A&E expert. If the concerns relate to treatment from a GP, then I instruct a GP expert. The type of causation expert depends on the cause of the death, so for example, if the deceased died from sepsis, I usually instruct an expert who specialises in critical care to comment on whether earlier or more appropriate treatment would have avoided the death. If, however, the deceased died of cancer then I would instruct an expert in oncology.
How do you calculate the level of compensation in a case where someone has died?
As with all medical negligence cases, the valuation is tailored to the individual client, so every case is different.
The law relating to compensation claims in fatal cases – who can claim and what can be claimed - is set out in The Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.
The following losses can be claimed on behalf of the deceased’s estate:
- ‘general damages’ for pain, suffering and loss of amenity - the pain, suffering and disability arising from the negligence which was suffered by the deceased up to their death;
- ‘special damages’ - any financial losses, including lost earnings, care and services, whether provided by paid professionals or freely by family or friends before the death;
- reasonable funeral expenses which were paid for by the estate.
Family and dependants of the deceased can claim:
- the statutory bereavement award - a fixed sum, presently set at £12,890, which is only payable to selected people, including the deceased’s spouse or civil partner or the parents of a deceased child under 18 years old at the time of death;
- a claim for loss of dependency – often the largest item of loss, which compensates the deceased’s dependants for the loss of the deceased’s income or services, such as childcare, housework, home maintenance and gardening etc;
- funeral expenses if paid by the dependants rather than the deceased’s estate.
Why do you think it’s important for negligently caused fatal cases to be investigated?
Losing a loved one is difficult in any circumstances but at Boyes Turner we often see the increased pain that bereaved families feel if they think that the death could have been avoided. An investigation provides the family with insight into the circumstances of their family member’s death, the treatment provided and whether there were any failings in care. The claims process also enables the NHS and individual medical professionals to learn from mistakes, so that steps are taken to avoid further harm to other patients in the future.
Dependant families are often left struggling financially where the person who has died was the primary income provider, a parent to young children or family carer. In these circumstances, a successful claim can provide compensation to ease their financial concerns at what is already a very distressing time.
If you are concerned about the treatment your family member or friend has received, or are caring for bereaved, dependent children as a result of medical negligence, please contact our specialist solicitors on mednegclaims@boyesturner.com.
