Medical negligence: Can I claim compensation if my family member dies?

At Fosters Solicitors, our Medical Negligence & Inquests team support those who have tragically lost somebody close to them because of medical negligence.

Losing a loved one is devastating, and we appreciate that in these circumstances bringing a claim for compensation is probably the last thing on many people’s minds.

However, at what can be an incredibly turbulent and emotional time for the bereaved family, a medical negligence claim could potentially include compensation for lost income, support services and funeral costs.

Here we explore the law surrounding who can make a claim in these circumstances.

If my family member has died as a result of negligence, can I claim compensation?

The short answer is it depends.

Under the Fatal Accidents Act 1976, where a person’s death has been due to negligence, a claim for compensation can be made by the deceased’s dependents.

Who is a dependent according to the Fatal Accidents Act 1976?

It is important, before making a claim, to know if you would be considered a dependent of the deceased under the Act.

The Act provides a detailed list of who may be considered a dependent:

• The spouse or civil partner of the deceased.
• The former spouse or civil partner of the deceased.
• A cohabiting partner of the deceased.
• Any parent or grandparent of the deceased.
• Any sibling of the deceased or their children.
• Any uncle or aunt of the deceased or their children.
• Any person treated by the deceased as her parent.
• Any child or other descendant of the deceased.
• A stepchild of the deceased or any child who was treated as a child of the deceased’s family due to a marriage or civil partnership.
• In the case of a person who has a female parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008, the legitimate child of his mother and that female parent.

Things to note

A dependent’s claim for compensation will only succeed if the person seeking to bring a dependency claim can show that the deceased contributed or supported them financially. For example, if, after a divorce settlement, the deceased made maintenance payments to an ex-spouse during their lifetime, then the ex-spouse will be able to make a claim for dependency.

Statutory Bereavement Award

An additional award, called the statutory bereavement award, may be granted in addition to a claim for dependency. This is a modest award and is fixed by law. As of 1st May 2020, the amount you may receive in England and Wales is £15,120.

The Act only lists a small number of people as eligible for this award:

• A spouse or civil partner of the deceased.
• A cohabiting partner of the deceased. To be eligible, you will need to show that you were living with the deceased immediately before their death for at least two years and were living as a spouse or civil partner of the deceased.
• A parent of an unmarried minor (under the age of 18 years) where the child was legitimate.
• The mother of an unmarried minor where the child was illegitimate.

It is important to note that only one award is payable. If two people make a claim for a bereavement award, this will be split equally between them.

Limitation

The limitation period is the time within which a claim must be issued at court.

The limitation date is usually three years from the date of negligence or the date the claimant knew or ought reasonable to have known the injury was linked to the original negligence. Where someone has died and the negligence is discovered after their death, the limitation will be three years from the date of their death.

If a medical negligence claim is not started in court within the three years, it is likely to be out of time. If you are unsure of the position, it is important to seek legal advice as soon as possible.

How we can help

Our Medical Negligence & Inquests team are able to support bereaved families with a potential claim. We understand you will want to know how we can assist, so we offer a free of charge no obligation first meeting or chat, which we follow up with a full letter of advice. If you are in any doubt as to whether you have a claim, please do contact us, again completely without obligation.

We are also able to discuss how you can cover the cost of a claim, including through a ‘No Win, No Fee’ agreement.

For more information, or to arrange a free no obligation chat, please call 01603 620508 or email the team. Details of all our Medical Negligence services can be found here.

For those cases which require an inquest into the death, we also have specialists who can support bereaved families through this process. Follow this link for more information.