What Happens to my Clinical Negligence Claim if I Die?.

It's an unfortunate truth in clinical negligence law that we frequently encounter death. We often represent families who have lost a loved one due to medical negligence, and occasionally, individuals who consult us about medical negligence pass away before their cases are resolved.

Clinical negligence claims take on average three to five years to resolve, and we act for clients of all ages suffering from various health issues. A common question I receive is, "What happens with my case if I die? Does it end with me?"

The short answer is: no. A 90 year old Act of Parliament called the Law Reform (Miscellaneous Provisions) Act 1934 permits a case to proceed even after a claimant's death.

This means that if a person dies before their clinical negligence case is concluded, instructions can still be taken from the executors of their estate if a will exists, or from the administrators if there is no will. Any compensation eventually awarded will go to the designated beneficiaries outlined in the will or, in the absence of one, according to the rules of intestacy.

The value of the claim may however change upon a claimant’s death.

For instance, if I am representing a claimant over a delayed cancer diagnosis and they die due to an unrelated issue like a heart attack or a car accident, it is likely that the value of their claim will reduce.

This is because when we seek compensation for a living claimant, a claim is made for both past and future losses and needs resulting from the negligence. Once a claimant passes away, future needs are no longer applicable, so no claim can be pursued for those losses.

In certain instances, though, an additional claim may arise. Under the Fatal Accidents Act 1976, if someone dies due to medical negligence—like the claimant mentioned above who succumbs to the negligent delay in diagnosing their cancer—then any surviving dependants have the right to seek compensation alongside the estate claim.

The following individuals are eligible to bring a claim under the Fatal Accidents Act 1976 if they can demonstrate financial dependency on the deceased, and / or if they benefited from services provided by the deceased prior to their passing:

• The deceased’s spouse / civil partner or former spouse / civil partner
• A person cohabitating with the deceased immediately before the death
• Any parent or other ascendant of the deceased
• Any person treated by the deceased as his parent
• Any child or other descendant of the deceased
• Any person treated as a child of the deceased as a child of the family in any marriage or civil partnership that the deceased was in
• Any brother, sister, uncle or aunt, or their children of the deceased

Certain dependants are also entitled to a statutory bereavement award, which the Government has set at a fixed amount of £15,120 for deaths occurring after 1 May 2020.

Thus, claimants with a limited life expectancy can find reassurance knowing that their dependants will not suffer financial hardship should they pass away during the claim.

If you belong to this group, or are dependent on someone who has died due to medical negligence, please reach out to us for a free consultation.