While many people assume that on the death of an individual any right to claim compensation dies with them, this is not the case with many NHS trusts paying out to partners/families of victims. We only need to look at the recent NHS compensation figures to see they totalled a staggering £1.76 billion in the financial year 2016/17 alone!
We also know that the NHS has outstanding potential liabilities of £65 billion. So, if you have recently lost a loved one, you may well be entitled to claim compensation for their pain and suffering and any additional impact on your life.
It is safe to assume that claiming compensation in the event of an individual’s death is a fairly complex process. It is therefore sensible to take advice from a personal injury claims advisor to see exactly what you need to do.
Unfortunately, the legal profession is very unforgiving, so if you miss deadlines or forget to send the relevant information, it may scupper your chances of claiming any compensation.
- – Medical negligence in the NHS explained
- – The medical negligence claim process explained
- – The medical negligence claim time limit explained
- – Dental negligence explained
We update all our guides regularly. If you are researching the Medical Negligence and we haven’t got an exact guide that helps you, keep coming back as we update daily.
How Is NHS Negligence Defined in Law?
When looking at medical negligence, the authorities will compare the treatment received against what could reasonably have been expected from someone else in the same position with the same experience/training. If there are significant shortfalls, then this may signal negligence which is the first step towards a compensation claim.
While we don’t have the exact figures, we know that in the tax year 2016/17 the NHS paid out £1.76 billion in compensation as a consequence of negligence. We also know that at the same time there were active claims/potential claims totalling a staggering £65 billion.
Many people are not aware that the NHS is a self-insured organisation with no third party able to offer traditional cover. As a consequence, the NHS is constantly changing and tweaking procedures to reduce the number of negligence claims going forward.
Who Looks After NHS Compensation as a Consequence of Negligence?
The potential liabilities of the NHS are so huge that no insurance company is able to offer the organisation any form of cover. Therefore the NHS is what is known as a self-insuring organisation which basically means that any compensation payments come directly from NHS funds.
There is a body called the NHS Litigation Authority, created in 1995, which oversees all medical negligence claims against the NHS. The body regularly releases reports showing ongoing claims and potential liabilities.
Is It Morally Right to Make a Claim Against the NHS?
If you or a loved one suffered as a consequence of medical negligence under the NHS, then you are perfectly entitled to pursue compensation. While many people struggle with the moral issue, it is worth remembering that unless negligent third parties are held to account, then nothing will change.
The procedures and processes which may have resulted in the death of a loved one will likely remain unchanged. While making a successful claim may lead to compensation, it will also ensure procedures are reviewed and changed. In the event that a similar injury occurs further down the line after the NHS was made aware of issues surrounding the death of your loved one, this is negligence.
Who Can Claim Compensation in the Event of a Victim’s Death?
Whether or not the victim had already begun a compensation claim relating to alleged negligence by the NHS is irrelevant. If the victim left a will, the executors of their estate could pursue compensation. In the event, there is no will then the deceased’s spouse, parents, children, brothers or sisters will be able to press ahead with a claim.
Will I Need a Grant of Probate?
A grant of probate is produced upon the death of an individual giving effective control over their assets to one or more parties. If a loved one/family member died without a will then, as a spouse, family member, child, etc., you will need to apply for a grant of probate to take control of their assets. This includes the right to pursue compensation in the event of death caused by NHS medical negligence.
What Evidence Do I Require for a Compensation Claim?
Even though gathering evidence for a compensation claim may be the last thing on your mind after the death of a loved one, the longer this process is left, the hazier the details will become. It is therefore important to gather evidence such as:-
- Details of the incident
- Photographic evidence
- Details of the injuries
- Cause of death
- Medical reports
- Witness statements
- Details of similar incidents where applicable
Whether as an executor of the individual’s estate or a family member, it is important to approach a personal injury claims management company to review your claim.
How Much Does It Cost to Pursue a Compensation Claim?
If you approach a claims management company, they will review your case and evidence, then give you an idea of your chances of success. If they believe you have at least a 60% chance of success, then they will likely offer you the opportunity to proceed on a “no win no fee” basis.
This basically removes your liability to cover the claims management company’s expenses in the event of an unsuccessful claim. Where a claims management company believes your chances of success are less than 60% you would likely need to fund a prosecution out of your own funds/estate funds.
What Can I Claim for in the Event of Death?
This is where it can start to get complicated because there are various elements of compensation you can pursue. Assuming that negligence has been proven and accepted you may be able to claim for:-
- The pain and suffering of the deceased until their date of death
- Financial loss for the deceased until their date of death
- Pain and suffering on behalf of family members
- Loss of financial dependency for the deceased’s living family/relatives
If you lost a spouse, partner, child or member of your family then going forward, there might be significant financial challenges. Any loss of financial dependency is an added financial consequence which needs to be addressed when pursuing compensation.
What Is a Bereavement Award?
In the event of the unlawful death of a loved one, you may be able to claim a bereavement award under the Fatal Accidents Act 1976. The level of compensation recently increased from £12,980 up to £15,120. As not all family members can apply for a bereavement award, it is important to take professional advice.
In the event of death as a consequence of NHS negligence, we need to reiterate that any claim for compensation does not die with the individual. Whether or not the claims process had begun is irrelevant. If the individual’s death was as a consequence of NHS negligence, then either the deceased’s estate or remaining family can pursue a claim.
Quick Medical Negligence FAQs
Even the most straightforward personal injury compensation claims tend to be a little more difficult when you look under the surface, there is a relatively rigid window of opportunity in which to stake a claim, but this is based on the date of diagnosis, NOT the date of treatment.
There are many personal injury claims companies in the UK able to offer advice across the whole range of medical negligence matters. It is, therefore, advisable to contact one of these parties as soon as you consider pursuing a claim.
If you are a parent or an appointed representative of a claimant under 18 years of age, you may be able to make a claim on their behalf. Alternatively, they can wait until they are 18 before making their own claim at which point the three-year window of opportunity will start.
Claiming on behalf of a minor, or somebody incapacitated, can be a little more complex and it is important to take advice.
The Bolam test is unique to the medical profession and compares and contrasts the treatment given against that which you would reasonably expect from a medical professional in the same position with the same experience/level of training. If the treatment received was below this level then, assuming there are no mitigating circumstances, you should be able to pursue a compensation claim.
The Bolam test goes back to a 1957 case brought by a patient who agreed to undergo electroconvulsive therapy but was injured as a consequence of no restraints or muscle relaxants. The patient lost the claim because the use of restraints/muscle relaxants was not common practice at the time.
Traditionally, there is a three-year window of opportunity during which to stake your claim for compensation. It is important to note that this three-year timescale begins at the time of diagnosis as opposed to the date of the treatment.
For example, we saw many miners who received lung damage decades ago but were only diagnosed recently. They were still able to claim compensation as a consequence of their date of diagnosis.
There will be occasions where the claimant is under 18 years of age or mentally incapacitated where the window of opportunity will be extended.
The NHS is the envy of many around the world although unfortunately, we do see a number of common injuries relating to alleged negligence. These tend to revolve around:-
- Misdiagnosis of life-threatening conditions
- Administration of incorrect medication/incorrect dosage
- Substandard surgery
- Life-threatening delays in treatment
- Mishandling of test results
- Care home negligence
How Can Money Savings Advice Help You With Making a Medical Negligence Compensation Claim?
Here at Money Savings Advice, we have partnered with some of the UK’s leading Medical Negligence Claims management companies. They have already helped thousands of people claim compensation for the negligence they have incurred, and they can do the same for you.
Choosing an independent claims management company means they won’t proceed with a claim unless they are sure it is in your best interests. They are also regulated by the FCA, which gives you an additional layer of protection.
If you would like to speak to one of these claim management companies who can help you make a compensation claim, then click on the below and answer the very simple questions.