Issuing Court Proceedings on behalf of a Deceased Claimant

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22 October, 2021

When a person dies as a result of clinical negligence there can be uncertainty as to how that claim for compensation/damages is continued. There remains an entitlement to a claim for the pain and suffering caused as a result of the negligence, and also any financial loss.

In this article we explore what is needed to issue proceedings in a court and the types of claims available.

Who is able to bring the claim on behalf of the deceased?

If the deceased person had a will, the executors of the will are appointed to be responsible for the management of the estate. The executor(s) are legally entitled to bring a claim for compensation as a result of the medical negligence suffered. The executor(s) will be required to apply for a grant of probate, where they will be officially authorised to act on behalf of the deceased.

In the absence of a will, a family member can apply for a 'letter of administration' which authorises that person, as an administrator of the estate, is entitled to bring a claim on behalf of the deceased. This is usually a spouse, parent(s), sibling(s), or a child (children).

If there is a will appointing executors of the deceased estate but no grant of probate yet, the executors can start court proceedings (issue proceedings), so long as they get a grant of probate as soon as possible thereafter.

If a situation arises where the family who are personal representatives aren't pursuing the claim or taking out the grant, then the cohabitee could apply for the grant. The application for the grant to be obtained would require a witness statement with the details of the claim that is being pursued.

At Forbes we are able to offer assistance from our wills and probate and contentious probate teams if guidance is required.

What type of claim is available?

Law Reform (Miscellaneous Provisions) Act 1934

A claim under this statute is one that is brought on behalf of the estate of the deceased person, however appointed as detailed above (whether by being named as an executor of the will or a successful application for letter of administration). This allows a claimant to claim for what the deceased experienced in terms of pain, suffering and loss of amenity as a result of the negligence.

Fatal Accidents Act 1976

Bereavement award - this may be available depending on whether you qualify under the eligibility criteria. There are limits and restrictions on who is able to claim. This topic has been reviewed in an earlier article.

Financial loss as a result of death - the shortfall of financial income that the deceased was contributing to, for example, a monthly salary or pension income. A calculation is also made to represent the loss of service that person provided, which would reflect their role within the home as mother, father, husband or wife.

There are other specific losses that flow from a death claim, but they are not covered here.

Case Studies

We have dealt with various cases in our clinical negligence department where we have successfully obtained compensation for family members where they have lost a loved one due to the negligence of a health professional.

Damages were achieved for £200,000 where a mother and son lost their husband and father. The surviving parent was the higher earner in that relationship, so less reliance was placed on the financial contribution that the deceased made to the household. Claims were successful for the pain and suffering endured by the deceased during the period of negligence. In addition, damages broadly reflected, financial and service dependency including pension, bereavement, loss of close ties of love and affection and funeral damages. The claim for the infant had to be approved by the court and an appropriate order made to invest the monies for the future when the infant reached eighteen.

The amount awarded will depend on the age and health of the deceased prior to death, life expectancy, family dynamic, the age of any dependant children and value of contributions to the household. Typically, a forensic accountant might be involved in a complex claim involving pensions or business earnings. Claims can run into millions depending on these fators.

In another example £100,000 was achieved for a widow following the death of her 78 year old husband from a failure to diagnose lung cancer. There was a challenge to life expectancy, where the deceased had an existing heart condition. There was the loss of a significant pension entitlement by the surviving partner. Had he survived they would have jointly continued to enjoy it. The deceased sadly died during the course of proceedings.

The team have noticed an increase in instructions from claimants particularly in the areas of mismanagement of mental health, leading to suicide when it should have been prevented, and failure to diagnose cancer, leading to premature death.

For more information contact Leonie Millard in our Clinical Negligence department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Clinical Negligence department here

Law Society review of Legal Aid

Inheritance Tax and Making Lifetime Gifts

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