What happens if someone dies before a clinical negligence claim is settled?

Sharon Parsons, Litigation Executive in Coodes Solicitors’ Clinical Negligence team, explains what happens if someone dies during a clinical negligence case.

The nature of clinical negligence claims and the length of time they take to conclude means that, sadly, sometimes the injured or ill person dies before the process is finalised. If this happens, the right to continue with the claim passes to your estate. This means that your ‘personal representative’ will be able to bring the claim in your place.

What is a personal representative?

If you leave a Will, your personal representative will usually be your executor. This is the person named in your Will who sorts out your estate. If you don’t leave a will, your representative will usually be the family member who administers your estate. This is often a spouse, adult children, sibling or parents.

On the face of it, this appears to be quite straightforward and, generally, it is. But sometimes problems occur and families and relationships can be complicated.

How long will a clinical negligence claim take?

It can take a long time to investigate any potential claim for medical negligence. There is a three-year deadline, called the ‘limitation period’, to issue court proceedings from the date of injury. If you then die within the three-year time limit and no claim form has been presented to court, the clock restarts. That means your personal representative then has another three years to bring the claim from the date of death.

What about my family’s future?

If your claim had included sums of money to compensate you for future financial losses, such as loss of earnings or the costs of personal care, these sums won’t be recoverable if you die before the claim concludes.

However, if you have a partner, children or other close relative who are financially dependent or physically dependent on your care, they might be able to recover compensation for ‘loss of dependency’ if you die as a result of the negligence. These heads of loss are claimed under the Law Reform Miscellaneous Provisions Act 1934.

What happens when the death is the result of an accident?

If your death is the result of an accident, your family might be able to make an additional claim to be made under the Fatal Accidents Act 1976.

Under this Act, family members may be able to claim a fixed sum bereavement award of £12,980 for deaths occurring before 1 May 2020, or £15,120 for deaths occurring on or after 1 May 2020. The only people entitled to this award are a wife, husband or civil partner of the deceased, or in respect of a deceased unmarried child under 18, between the parents or to the mother (if the parents are not married). If more than one person is entitled to the award, it must be shared between them.

The deceased’s husband, wife or civil partner (including ex-spouses and partners, and those who have lived as such for two years before the death) can also make a claim.

Parents, children, grandchildren, siblings, aunts, uncles, in-law and stepchildren may also be able to claim. They could claim a financial loss as they no longer have the person’s financial support, or the benefit of services the person carried out for them. This could include situations in which the deceased person previously assisted with gardening, DIY or household chores. These claims can be complex but can lead to substantial awards.

Funeral expenses can be recovered under the Fatal Accidents Act if they have not already been claimed as part of the personal injury claim.

For further information or advice on these issues please contact Sharon Parsons in Coodes Solicitors’ Clinical Negligence team on 01326 213033 or sharon.parsons@coodes.co.uk.