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Death arising from medical negligence


Author: Sara Westwood

Clinical Negligence

I feel privileged to be able to help families affected by the death of a loved one arising from medical negligence. These cases are always tragic but working with families to get the truth about the circumstances of their loved ones death is rewarding.

Sue – failure to diagnose and treat peritonitis (leading to death)

One such case involved Sue (not her real name), who was seen in the Accident and Emergency Department of her local hospital as she was concerned by a sharp and constant abdominal pain which had developed. The hospital reassured it was nothing serious and discharged her home.

The following day her pain became worse and could not be eased by painkillers, therefore she sought further treatment from an out of hours GP. On examination the GP found her tummy to be rigid and she was distressed. The GP diagnosed a panic attack, but he should have considered the possibility she had a more serious problem and referred her to hospital for further investigation. Rather than suffering a panic attack, Sue was suffering with peritonitis as a result of a perforated ulcer. Sadly, she died the following day.

Sue’s husband came to us for legal advice and assistance. In this case the GP admitted he should have referred her to hospital and the case settled. However, no amount of compensation could bring his wife back; but compensation is the only remedy for a civil claim in clinical negligence.

How is the compensation in fatal medical negligence claims made up?

The husband will recover an amount for the loss of the services his wife provided and, as she was working, there was also a loss of earnings claim. In addition, a sum is paid for the pain and suffering his wife endured prior to her death.

Under the Fatal Accidents Act 1976, Bereavement Damages are paid in the fixed amount of £12,980. This is not intended to compensate for the loss of a life but to compensate for the grief suffered.

Understandably, in my view, bereavement damages has for some time now come under much criticism. Not only is it a very low sum, but it is only paid in very limited circumstances, namely to the spouse of the deceased or to a parent who has lost their child but only when the child died under the age of 18. If you are unmarried, even if you have lived together for many years, bereavement damages are not recoverable. This is incredibly unjust and outdated.

Is change to how bereavement damages are calculated on its way?

This may however change because of the recent legal case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & others. Ms Smith lost her partner of many years and successfully argued in the Court of Appeal the Fatal Accidents Act was incompatible with Article 14 of the European Convention on Human Rights (protection from discrimination). I feel this to be the right decision as the 1976 Act does not reflect the times we live in. I doubt, however, the Government will extend bereavement damages to other grieving relatives which inevitably means I will continue to have those difficult conversations with a client where I have to explain why they do not qualify for the award in circumstances where their 22 year old son has died or where their sister has died due to negligent care.

If you or a family member are concerned you have suffered an avoidable injury due to poor treatment, or a delay in treatment, I am always happy to have a chat about a case without any obligation. I am now practising within Hatch Brenner Solicitors, and you can contact me at sarawestwood@hatchbrenner.co.uk, or via 01603 660 811.

Death arising from medical negligence

Death arising from medical negligence

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