What happens when someone dies as a result of medical negligence?
When there has been an unexpected or unintended event which has resulted in a death there are nearly always internal investigations, either by the NHS, GP practice or organisation that was involved in the person’s care and treatment. There are certain procedures that the majority of medical organisations including the NHS should follow and this is covered under The Duty of Candour Procedure (Scotland) Regulations 2018. These procedures are triggered when the patient has experienced an unintended or unexpected incident that has resulted in harm or death. The death or harm cannot be related to the natural course of the illness or underlying condition for which the person is receiving treatment and care.
Internal Investigations by the health care organisation/professional.
There is a legal duty under the Duty of Candour procedure to tell those affected that an unexpected and unintended event appears to have caused harm or death, to apologise and to meaningfully involve them in a review of what happened.
When the review is complete, the organisation should agree any action required to improve the quality of care. They should tell the person who appears to have been harmed (or to those acting on their behalf) what those actions are and when they will happen.
In respect to the NHS complaint process, there are organisations who provide assistance and support to patients. The Patient Advice and Support Service is an independent service, delivered by the Citizens Advice Bureaux to help anyone who uses the NHS in Scotland. They can be contacted on 0800 917 2127 or via their website www.cas.org.uk/pass
Our legal care when making a fatal clinical negligence claim.
With or without any internal review you may feel that you need legal advice, particularly when you believe the negligent care or treatment has resulted in death. This is an incredibly difficult time for family members. They are not only have to attend to the practical matters following a death, they’re also dealing with a complicated grief reaction, in that the loss they are experiencing is linked to what they believe is wrongdoing on the part of a medical professional. You are likely to be feeling raw, distressed and in disbelief as to what has happened.
L&M MediLaw will be compassionate and approach matters sensitively when providing advice on a fatal claim.
Who can claim compensation?
It’s worth noting that only certain family members have what we call ‘title to sue’ – these are the individuals permitted to raise a court action in respect to that person’s death. It’s therefore relevant to confirm whether the person died with or without a will and who their next of kin was. L&M MediLaw will provide advice on who has ‘title to sue’ and whether that person is likely to be you.
Eligible family members
Fatal claims are different to claims where the injured person is still with us. This is because certain eligible family members are able to make a claim for the grief and loss they have experienced as a result of the death. Solicitors will refer to this as a ‘loss of society’ payment. This is in addition to financial loss that has been caused by the person’s death. So, for instance, if a child was to bring a claim in respect to their parent’s death, they would most likely be able to include a claim for loss of financial support. This is known as a loss of support claim.
Who is an eligible relative to make a claim and what types of claims can be made when a person has died as a result of negligence is covered under the Damages (Scotland) Act 2011. There’s also a type of claim called ‘transmissible solatium’ which is a payment for the pain and suffering the person endured before their death and this is paid to the estate (the money and property) of the person that has died and will be divvied up in accordance to the will or if the case may be the rules of intestacy (when someone dies without a will).
Exceptions and limits to fatal negligence claims
The definition of a legal person with full legal rights is someone that was born alive. Therefore, a clinical negligence claim cannot be brought under the Damages (Scotland) Act 2011 in respect to a still birth or miscarriage. An injury claim in this respect would be limited to the injury the mother experienced as a result of the still birth or miscarriage and this would include psychiatric injury.
As you can see, fatal claims need a highly specialised solicitor who is experienced with these type of claims and L&M MediLaw will provide expert compassionate legal care.