GUIDE - FATAL CLAIMS
When Medical Negligence Causes Death: A Guide for Families
If someone you love died and you believe their care fell short, you may be trying to understand what happened before you think about anything else. This guide explains how the law in England and Wales works after a death caused by medical negligence - what can be claimed, who can bring a claim, and how long you have.
What happens to a claim when the patient dies?
A person's right to bring a claim does not end when they die. What changes is who can bring it, and what can be claimed.
After a death caused by negligent medical care, two separate claims can arise from the same set of events. They rest on two different Acts of Parliament, they compensate different things, and they are brought by different people. Families are often surprised by this, and it is the single most useful thing to understand at the outset.
Who can bring the claim?
The claim is brought by the deceased person's personal representative.
Where there is a will, that is the executor named in it, who will normally obtain a Grant of Probate. Where there is no will, the person died intestate, and a family member can apply for a Grant of Letters of Administration to become the administrator. Either way, the personal representative brings the estate's claim and, in most cases, also brings the dependency claim on behalf of the dependants.
If no claim is brought by a personal representative within six months, an individual dependant may bring the Fatal Accidents Act claim themselves. In practice, sorting out the grant early avoids that complication.
What is the difference between an inquest, a complaint and a claim?
Inquest
A coroner's fact-finding inquiry into who died, and how, when and where
Establishes facts and can record a conclusion such as neglect. It cannot determine civil liability or award compensation, and it is not a trial. A coroner can issue a Prevention of Future Deaths report requiring the organisation to respond.
Complaint
To obtain an explanation and, where appropriate, an apology and changes to practice
Free and relatively quick. Can produce written answers and an admission of failings. Cannot award compensation. Escalates to the Parliamentary and Health Service Ombudsman if unresolved.
Support at an inquest
An inquest can be daunting. The trust will usually be legally represented. Families frequently are not, and can find themselves in a coroner's court trying to ask the right questions about their own relative's death without any preparation.
A solicitor can represent you at an inquest, or instruct a barrister to do so, so that the questions that matter to you are properly put. Where a claim is being investigated, inquest evidence often becomes an important part of it, which is one reason it is worth taking advice before the inquest rather than after it.
What evidence is involved
The full medical records, including GP, hospital, ambulance and imaging records
Independent reports from medical experts in the relevant specialties, often more than one, covering both breach of duty and causation
Post-mortem and histology reports, where a post-mortem was carried out
The coroner's evidence and the inquest conclusion, where there was an inquest
Statements from family members and, where relevant, from staff involved
The provider's own internal investigation, serious incident report, or duty of candour correspondence
Speak to someone about what happened
If you would like to understand whether the care your relative received fell below the standard it should have, we can talk it through with you. There is no cost for that conversation and no obligation to take anything further.
Call 0330 818 7754 or email medicaldirectclaims@njslaw.co.uk
Civil claim
To establish legal liability and recover damages
The only route to compensation. Requires proof of breach and causation. Most claims are resolved without court proceedings.