What Happens If a Patient Dies Before their Negligence Claim is Over?
4 Min Read
Sadly, there are times when someone bringing an injury claim does not live to see the end. People bringing claims often have serious medical conditions, which may sometimes shorten their lives.
For instance, a serious accident could leave the victim with a spinal injury like tetraplegia, which comes with many additional risk factors for health. For a medical claim, it may be that that the cancer would have been cured, had it been diagnosed earlier, but now survival is far less likely.
So, what happens if a claimant dies before their claim is over?
Does the claim survive?
Yes, the claim survives for the benefit of their estate.
That has not always been the case but, back in 1934, a law was passed with the rather unexciting name of the Law Reform (Miscellaneous Provisions) Act. Despite the name, it is very significant. Section 1 provides that in most circumstances (including negligence claims) where someone bringing a claim dies, that claim passes to their estate.
Who can act for the estate?
Who can act on behalf of their estate? That depends on whether they left a valid will or not. A will normally appoints executors and the executors can continue the claim. If the person died intestate (in other words they did not leave a valid will), administrators can continue the claim.
Usually the person’s husband, wife or registered civil partner, adult children or parents will apply to be the administrator. It will normally be necessary to apply to the Probate Registry for a Grant either of Probate (if there was a will) or Letters of Administration (if there was not).
Who benefits from the claim?
Whilst the executors or administrators continue the claim, who the money is paid to depends on the terms of the will or the intestacy rules. The will sets out who inherits. Any money recovered is paid out in line with the will.
If there is no will, the intestacy rules determine who inherits. First in line is any husband, wife or civil partner, and next in line are children. The rules set out others who can inherit in other circumstances.
What loss can they recover?
The claim includes an award for the person’s pain, suffering and the impact of their condition on their daily life. It also includes any other types of loss they could have recovered. That might be loss of earnings, the cost of medical treatment, care and any equipment they have paid for.
Can others claim loss?
The death of a claimant may also give rise to a new claim under another statute, the Fatal Accidents Act 1976. If a wrongful death due to medical negligence can be proved, certain relatives and ‘dependents’ can claim loss.
Relatives can claim a ‘bereavement award’. Those relatives are the person’s husband, wife or civil partner. If someone under 18 and unmarried died, the parents or mother (if the parents are not married) can claim the award. If more than one person is entitled to the award, it is shared. The award is £12,980 for deaths before 1 May 2020 and £15,120 for deaths since.
Funeral expenses can also be recovered under this Act, if not done under the Law Reform (Miscellaneous Provisions) Act 1934.
Dependents may have a more significant claim. Dependents can include the person’s husband, wife, partner (although who amounts to a partner is carefully defined), children, grandchildren and parents. They may be able to claim a financial loss in no longer having the person’s financial support or the benefit of ‘services’ the person carried out for them.
So, where a couple shared their income and one of them died, the other may have suffered a financial loss. Or where that person used to look after the garden, decorate the home or do all the household chores, there may be a loss.
The way these claims are calculated is quite complicated and needs specialist legal advice. They can also lead to quite large awards, particularly where the person who died was a young adult and the dependency would have lasted for many years.
Legal assistance when you need it most
Our team have experience in dealing with the tragic outcome when a client dies during the course of their claim. If you would like to talk to our medical negligence solicitors about a claim for a lost loved one, or the medical negligence claim process, please contact us.