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Compensation increase for bereaved relatives is not enough

The Times newspaper reports NHS hospitals have a potentially fundamental problem with diagnosing sepsis in children, a coroner has told the health secretary after a nine-year-old died in similar circumstances to Martha Mills.

The law in England continues to be particularly harsh when it comes to the death of a loved one. Only a long-standing, live-in partner, a spouse or dependant child can claim for the death and any losses arising from it.

The estate of the deceased can bring a claim for any additional pain and suffering caused by the negligence, but this is often limited in time and value from the date of the incident and the time of their death.

The value of the bereavement award payable in England and Wales is currently fixed at £15,120, if the death occurs after the 6th October 2020. In Northern Ireland it has just been increased to £17,200. In Scotland the damages are assessed on a case-by-case basis as they are in much of Europe. In France for example, other relatives of the deceased can claim for the effects of the loss of a family member.

If the law changed, would the NHS take a different view? It is sometimes said, it is cheaper to kill than maim.

APIL (The Association of Personal Injury Lawyers) are campaigning for an increase in the Bereavement award.

As the law currently stands Martha and Riya's parents claims are limited to the fixed bereavement award and funeral expenses.

Damages can be awarded for shock and distress if they can prove:

1. The injury caused has arisen from a sudden and unexpected shock
2. They were personally present at the scene or witnessed the immediate aftermath of the shocking event
3. The injury had to have been caused as a result of witnessing the death.

There have been a number of recent cases which have been considered:

• The children of the deceased witnessed the death of their father after the hospital failed to perform an angiography a few years earlier that would have revealed coronary artery disease, which could have been treated successfully.
• The second case involved a seven-year-old with breathing difficulties. She was seen by her GP in 2014, referred to a paediatrician. After tests it was concluded his symptoms were related to exertion and were physiological. She was seen again in April 2015 and referred to the paediatrician. The hospital subsequently admitted that they should have diagnosed her condition by January 2015. She collapsed at school and died on the 1st of July 2015.
• The third case involved a 20-year-old, who died as a result of pneumonia and pulmonary abscesses. In January 2013 she visited her GP on several occasions. It was alleged the GP failed to diagnose pneumonia on the 4th of April. On the 7th of April she was found lying on her bed, motionless having passed away.

Each case failed. On each occasion the family witnessed these horrifying events and sustained a psychiatric injury.

The defendants succeeded in arguing that the deaths in each of these cases were separated in space and time from the negligence. In other words, the failure to diagnose a condition didn't lead to any immediate and horrific death, the death occurred sometime later.

Whilst this decision restricts the possibility of secondary victims pursuing claims for psychiatric harm. Any individual who has had the misfortune witness the shocking and horrific loss of a loved one may well still have a claim. There are many examples of such cases involving road traffic accidents and accidents at work where such claims have been successful.

In each of the cases described above, there may still be claims by the deceased's estate arising from any pain suffering that they endured from the date of the negligence until there untimely death. The dependants of those individuals and parents of children under the age of 18 may also have claims for bereavement, funeral expenses, and other losses.

If you have been unfortunate enough to be the victim of such incident, please contact one of the team for some no obligation, no-win no fee advice.

For more information contact John Bennett in our Clinical Negligence department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Clinical Negligence department here

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