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July 2007

Fatalities – the effect death has on a claim for compensation

Introduction
When there is negligent treatment but no claim
When there is negligence but a limited claim
Where an autopsy can be helpful
How we assess the value of a claim where there is a fatality
Summary

Introduction

It is always difficult to lose a loved one, and it is particularly difficult when the death is unexpected and connected to clinical treatment. Unfortunately, the fact that the death may have arisen from clinical treatment does not however in itself, give rise to a claim for compensation. It is essential to establish that the cause of the death was linked to negligent clinical treatment.

Sometimes death is a natural consequence of the treatment or the initial condition and as a result, even if the treatment could be criticised it may not mean that a claim can be made.

It is important that you seek legal advice from a clinical negligence solicitor to find out if you can claim compensation or not as these cases can be very complicated and an expert opinion could be vital.

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When there is negligent treatment but no claim

Sometimes we can establish that there was negligent treatment but cannot show that that treatment made a difference to the outcome. Take two examples:

a) where the patient had aggressive cancer, which whilst there was a delay in treatment, it is unlikely that earlier treatment would have prevented the death

b) where the 85 yr old presented at hospital with signs of a ruptured aortic aneurysm, but is sent home and subsequently dies. In this case statistically where there is a rupture and the patient is elderly, there was a less than 50% chance of survival irrespective of any negligence. It could not therefore be established that the negligence caused his death. What it lost him was a chance of survival, but that chance was less than 50%.

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When there is negligence but a limited claim

When a loved one dies, sometimes that death brings to light an otherwise unknown condition that would have led to death in any event. It can be the case that it would either have led to death in a short space of time, or would have led to death, but at some stage in the future.  In other words that there was a reduced life expectancy as a result. In such a case, a claim can still be considered for the period that they would have survived but for the negligent treatment. This could also apply where the unknown medical condition would have prevented the deceased from working at some stage during their working life.

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Where an autopsy can be helpful

Death can however also clarify conditions that would otherwise have affected the value of a claim. Take for example the patient who prior to their death was being treated for cancer. The death was unrelated to the cancer but the autopsy revealed that the treatment had been successful and there was no longer any evidence of cancer. In that event, where the Defendants would have sought to reduce the value of the claim because of the pre existing condition the autopsy was able to show that in fact the pre existing condition had been successfully treated and there was perhaps a normal life expectancy as a result.

So where there is a fatality a number of aspects need to be considered before a financial claim can be brought. Importantly, was the death related to the treatment and what would the condition and prognosis for the future have been but for that negligent treatment.

If we take a 50 yr old firefighter who died as a result of a failure by the A&E to diagnose his heart condition, the issue would be what would his outcome have been had the diagnosis been made at the time. Different treatment would have been provided, but would it have made a difference to the outcome? A Cardiologist would need to advise on what the treatment should have been and had it been administered, what difference would it have made to that patient. The possibilities are that a) he would have made a full recovery with no further risks b) he would have made a recovery but because of his pre existing heart condition his life expectancy was reduced, c) he would not have survived in any event.

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How we assess the value of a claim where there is a fatality

In the event that a claim can be made, the usual claim is for:

- bereavement which is presently limited to £10,000 and only available to certain categories of persons, namely spouses and parents of a minor child;
- funeral expenses,
- pain and suffering directly as a result of the negligence to the deceased unless the death was instant; and
- dependency. This is by far the biggest part of the claim and is based on both parties earnings and future earnings / pension. Dependency is available if there are classes of claimants who were dependent on the deceased, usually a partner / spouse and children under 18 or in full time education. There are also cases where the deceased had elderly parents who they were supporting who would be classed as dependents to include -
- Loss of services / support where the spouse/partner undertook household tasks, DIY and the like.

For many years the courts approach to Dependency is a financial formula unless there are exceptional circumstances which suggest that the standard approach would not be appropriate. Re marriage or marriage prospects does not affect the dependency. Dependency will consider the extent to which the remaining partner / claimant was dependent on the other in terms of income, future income, pension and services i.e. DIY.

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Summary

So, to make a successful claim it is necessary to establish that the death was caused by the negligent medical treatment. It is necessary to understand whether there were any medical conditions that would have affected the deceased’s ordinary life expectancy or would have limited the deceased’s ability to continue to work, that would reduce the value of the claim. If a claim can be successfully brought, the financial claim would be based on a financial calculation based largely on earnings, pension and services provided. The claim would be brought on behalf of those who were dependent to include children normally until they cease full time education and if appropriate other classes of persons.

This article is intended to be a rough guide only as to how a fatality can effect a claim for compenstaion.  If you are thinking about making a claim on behalf of a deceased relative you should seek expert legal advice as every case would need to be evaluated on its own merits.

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