Just because our loved one has passed away, does not mean that the right to bring a claim for them has been lost. Sadly, dealing with claims on behalf of the estate of a deceased person is a frequent occurrence for medical negligence solicitors and here at Forster Dean we have experience with these types of claims.
There are a few reasons why we may be dealing with the claim of a deceased person; it may be that a client has instructed us and during the course of our investigations, they have sadly passed away or it may be that after a person has died, a family member recognises that they had received negligent treatment.
There is often a misconception that the death needs to be related to the potential claim but this is not true.
Who can bring the claim
If the deceased had a Will before their death, then the people that they named as the executors of their estate will be the people legally entitled to bring a claim. They will have an obligation to distribute the estate (including any compensation received) in accordance with the terms of the Will.
If the deceased died intestate (without a Will) then it will be the responsibility of the nearest relative as set out by s.46 of the Administration of Estates Act 1945. Typically this will be; spouse, parents, siblings and children. These people will be able to apply to have a grant of letters of administration allowing them to administer the estate and any compensation received.
There are time limits put in place for how long an executor or administrator has to bring a claim and often this will be 3 years from the date of the death.
What can we claim for
What we can claim for depends on the circumstances of the case. It depends on what the allegations of negligence are and what impact the alleged negligence has had on the deceased person. Especially, whether the negligence has caused the death.
Essentially, there are two types of claim that can be brought. They are as follows:
- A claim under the Law Reform (Miscellaneous Provisions) Act 1934- this is a claim brought on behalf of the estate of the deceased person. Claims of this type allow the estate to claim for what the individual would have been able to if they were still alive such as a sum of money that represents the pain, suffering and loss of amenity that they experienced as a result of the negligence.
- A claim under the Fatal Accidents Act 1976. This allows a claim to brought on behalf of dependents; these are people who relied on the deceased. Under this heading, claims can be made for a bereavement award if the death was related to the negligence and the dependent is an applicable party (typically a spouse or parent). Claims may also be made by a dependent for the financial loss as a result of the death i,e. A wife whose husband has passed away, she will suffer financially as her husband is not working and bringing home money. She may be able to claim a sum to represent this financial shortfall.
We know that dealing with claims on behalf of a loved one that has passed away is always going to be difficult and we are here to help. If you feel that you or a loved one may have suffered as a result of medical negligence, please call one of medical negligence solicitors.
