It is always worrying if a loved one has to go into hospital to receive medical treatment or to undergo surgery. Happily, the vast majority of patients receive the standard of treatment they are entitled to expect. Occasionally however, medical accidents occur. Very rarely a patient dies as a result of mistakes made by medical professionals. If that happens relatives are of course devastated. It is entirely natural for them to want to find out what happened and why and to get answers to their questions.

Richard Blair, a Partner in the PI and Clinical Negligence Department at WBW Solicitors in Paignton, outlines some of the causes of fatal medical negligence and explains the rights of family members if such a tragedy affects them.

Types of fatal negligence

The types of treatment patients receive in Hospitals are many and various. Some are more complicated than others and are associated with greater risk. Very occasionally patients die as a direct result of substandard medical care. It can take many different forms. These include the following:

  • A missed, avoidably delayed or incorrect diagnosis. If the wrong diagnosis is made or if the correct diagnosis is delayed or not made at all, the patient’s condition can deteriorate very quickly. The patient may not receive the right treatment promptly or at all and the outcome can be fatal.
  • Incorrect prescription of medicines. From time to time the wrong medicine or an incorrect dose of the correct medicine is prescribed, whether too much or too little. Happily, events of this kind are rare but when they happen the patient may be deprived of the right treatment or may be injured because excessive doses of medicine are prescribed.
  • Surgical errors. Some can be and are quickly rectified. The patient may suffer little harm. Some mistakes however, are not reversible. Some could be addressed but are not recognized promptly or at all. When that happens the outcome can be fatal.
  • Diagnosis and treatment of infection. Sepsis is one form of infection not as well recognized as it should be. Nor – from time to time – is it treated as effectively or promptly as it should be. When that happens the consequences can be very serious, even fatal, particularly when as a result of infection major internal organs shut down and stop functioning.
  • Sub-standard nursing and related care while in hospital. Patients may become fatally ill because of poor hygiene or insufficient nursing and related care.

Who can make a compensation claim for fatal negligence?

Claims for compensation arising from medical negligence with a fatal outcome, can be pursued on behalf of the Estate of the person who dies and on behalf of their dependents. Dependants are those who were financially dependent on the person who dies or who relied upon that person for care.

When someone dies they often leave a Will appointing an Executor. The Executor can pursue the claim. If there is no Will, a family member or appropriate person can pursue a claim as the Administrator of the Estate of the person who dies. They will need a Court Order to allow them to do so. Generally, that is not too difficult to obtain but there is a cost attached.

Dependents include:

  • a spouse;
  • a civil partner who had lived with the deceased for at least two years immediately prior to his or her death;
  • a child, parent, brother, sister, aunt, uncle, niece, nephew or cousin; or
  • anyone who was treated as a child of the family by the person who died.

The Executor or Administrator can also make a claim on behalf of the deceased’s estate for injury or losses suffered by the person who died before their death as well as expenses arising from the death.

Under the Fatal Accidents Act 1976, if you are a dependent of the deceased you can make a claim for:

  • loss of the income the deceased would have earned had he or she survived.
  • loss of ‘services’ dependency. For example, the estimated value of tasks the deceased would have carried out such as cooking, cleaning, home maintenance, etc. These may sound mundane but they are critically important and can form a very significant part of the claim.
  • a ‘statutory bereavement award’. This is currently fixed at £12,980 but can only be claimed by the spouse or civil partner of the deceased, or children of the deceased who are aged under 18 at the date of death;
  • loss of love, affection and companionship;
  • the suffering experienced by the deceased as a result of the injury before death,
  • financial losses suffered as a result of the injury up to the date of death, such as loss of earnings, medical expenses and treatment, and travel expenses;
  • financial losses resulting from the death;
  • funeral expenses; and
  • probate fees.

How a solicitor can help

To be able successfully to bring a compensation claim whether one arising from a death or not, the Claimant has to prove that the medical professional responsible owed a legal duty of care to the person who died, that they breached that duty of care acting negligently and that the deceased died as a result of the negligence.

When deciding whether the relevant doctors acted negligently, a legal test – the ‘Bolam test’ – applies. The Court considers evidence and decides whether the medical professionals concerned acted negligently by failing to provide the standard of care expected of the ordinary man or woman in that particular field of medicine. The court will consider what would be regarded as acceptable practice by a responsible body of doctors in the relevant medical field.

Our medical negligence experts will help you gather all the evidence you need to prove negligence and work hard to secure you the financial settlement you deserve.

For further information, please contact Richard Blair of the Clinical Negligence Team on 01803 566100 or email WBW Solicitors has offices in Newton Abbot, Torquay, Paignton, Bovey Tracey, Exeter, Launceston, Honiton Exmouth and Sidmouth.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.