Sometimes, during a clinical negligence claim, a claimant dies before a final settlement is reached. This could be because the negligent act reduced their life expectancy, or due to an unrelated illness.
The claimant’s family may wonder if the ongoing claim can continue. The short answer is yes, but there are legal implications that need to be addressed before any claim for compensation can be paid.
Here, we look at what the deceased’s family must do if someone dies part-way through a clinical negligence claim.
Continuing a clinical negligence claim if the claimant dies
If the claimant dies during a clinical negligence claim, the claim can instead be brought on behalf of their estate under the Law Reform (Miscellaneous Provisions) Act 1934.
A personal representative is needed to continue the claim and act in the best interests of the estate. Matters are easier if the claimant had made a will.
If there was a valid will, then the executor named in the will is the person legally entitled to continue the claim. If the claimant died without a will (aka intestate), then the responsibility falls to the next of kin, be it a spouse, adult child, parent, or sibling.
What does a personal representative have to do?
By taking on the claim, the personal representative is expected to do everything a claimant would do. This can include:
- Approving reports from medical experts
- Providing a witness statement
- Approving court documents
- Meeting with solicitors, barristers and experts (if necessary)
- Considering offers of compensation
- Attending settlement meetings
- Potentially attending court (though very few clinical negligence cases ever get to court)
A clinical negligence claim can take a long time to investigate. The litigation process can become more complicated and involved if a person dies, especially without a will. A personal representative will need to be mindful of the commitment they are making. Depending on how far along the claim was before the claimant died, it could be another couple of years before settlement is reached.
Usually, the executor will be someone close to the deceased, such as a spouse or child, who will have first-hand knowledge of the clinical negligence their loved-one suffered. At other times, the executor may be a solicitor and, if so, the family will also need to still be involved practically to provide the personal insight that they have.
Whoever acts as the personal representative has a duty to act in the best interest of the deceased’s estate.
So, what happens next?
The clinical negligence solicitor handling the claim must be provided with the necessary legal documents before a claim can continue.
If there was a will, this will be a grant of probate. If there was no will, it will be a grant of letters of administration.
The grant of probate or letters of administration can be obtained via the local probate registry. These two documents act in the same way. They basically entitle the personal representative to deal with the legal and financial processes involved with an estate.
Granting probate is a process which can take some time as it will need to be proven that the will was valid and the executor has the authority to administer the estate. However, there can be long delays, often taking months, at probate registries now in issuing grants.
Compensation can be agreed but cannot be paid over until after production of a grant.
Does the three-year time limit still remain if someone dies during a clinical negligence claim?
As a rule of thumb, clinical negligence claims must be submitted within three years of the injury or when the claimant was aware of the injury.
However, if a claimant dies within this three-year period and a claim hasn’t yet been submitted to court, then the clock resets. This means the personal representative has a further three years to commence legal proceedings from the date of the death.
Doe the No Win No Fee agreement end if a claimant dies?
Any conditional fee agreement that a solicitor makes will end with the death of a claimant. A personal representative will need to arrange a new funding agreement once they have obtained the death certificate.
Will the amount of compensation be affected?
If a claimant dies before settlement is reached, the amount of compensation that is recoverable might be reduced.
This is mainly due to the fact that any claims for some future costs can no longer be claimed, such as the cost of care the deceased would have needed had they survived.
The estate can claim for past losses between the negligent act and the deceased’s death such as:
- Pain and suffering
- Loss of earnings or pension
- Treatment or medical costs
- Care costs
- Travel expenses
If the death was the result of the clinical negligence, then the estate may also be able to make additional claims for things like funeral expenses, loss of dependency, and the statutory bereavement award.
Loss of dependency does cover the value of future financial or practical support that the deceased would have provided to others but for the clinical negligence. For example, childcare of grandchildren, or a spouse’s reliance on the deceased’s pension and other income.
If the claim is successful, any compensation awarded must be distributed in line with the wishes of the claimant as set out in the will. If there is no will, the laws of intestacy will apply and the compensation will go to whoever is in-line to inherit the estate.
Can you put plans in place if life expectancy is reduced?
If clinical negligence has significantly reduced a person’s life expectancy and they are likely to leave a substantial amount of damages to their beneficiaries - who are also on state benefits – then it is increasingly advised to set up a Will trust.
This means that, on the death of the claimant, any damages will pass into the Will trust rather than the estate. Currently, any capital above £6,000 impacts a person’s eligibility for state benefits. Compensation in a will trust is therefore excluded from any means tested benefits or local authority funding assessment, so the spouse, partner or child retains their eligibility to current and future benefits, as well as access to spending the compensation.
How can Medical Solicitors help?
Dealing with a clinical negligence claim once the injured party has died can be complicated. It requires specialist legal advice from a solicitor who has the right knowledge and skillset to complete the litigation process.
Here at Medical Solicitors, we have settled various claims just this year where the claimant had died before the claim concluded.
Our senior litigator, Sonia Parkes, recovered £25,000 for an orthopaedic medical negligence case on behalf of the estate of a woman in her 40s who died from cancer during the claim. In this case, the woman’s husband became the personal representative who took over the claim.
Medical Solicitors’ director, Matthew Brown, recovered £15,000 for a lithium toxicity case on behalf of the estate of a pensioner who died before the settlement was reached. In this case, the woman’s daughter acted as a litigation friend.