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I am currently pursuing a Claim for Medical Negligence but what will happen if I pass away?

The length of time in which it takes a clinical negligence claim to conclude varies case by case and, although some claims can be settled within a year, others can take much longer.

Unfortunately, life can be unpredictable especially when you are suffering from a serious illness and it is therefore reasonable to question what would happen if you passed away before your claim concluded.

I am currently pursuing a Claim for Medical Negligence but what will happen if I pass away?

Continuation of the Claim

If you were to pass away during an ongoing clinical negligence claim, the claim does not automatically come to an end. Instead, it can be continued on behalf of your Estate under the Law Reform (Miscellaneous Provisions) Act 1934.  

A personal representative is required to continue the claim, however, who acts as the personal representative is dependent on whether you made a Will or not.

If you have a valid Will in place at the time of your death, the Executor named within the Will is the person who is legally entitled to continue the claim.

If, however, you do not have a valid Will in place at the time of your death, then the rules of intestacy applies. This means that the responsibility will fall to the next of kin. If you were married, the rules of intestacy begin with married partners or civil partnerships. The married or civil partner can therefore act as the personal representative. If you were single and had children, the children (providing these are adult children) will act as personal representatives, and so on.

What is required from a personal representative?

The personal representative will be asked to sign and return a number of legal documents appointing them as the new Claimant. This is because any funding agreement that had been previously agreed with the Solicitor and original Claimant will end on death. Therefore, the personal representative will need to arrange a new funding agreement.

In addition to this, the Solicitor will require either a grant of probate (if there is a Will) or letters of administration (if there is no Will). These two documents act in the same way and can be obtained through the local probate registry. These documents are important as they entitle the personal representative to deal with the legal and financial processes involved with the Estate.

Following this, the personal representative acts as the Claimant. This involves but is not limited to:

  • Meeting with solicitors/barristers/experts,
  • Considering offers of compensation
  • Attending settlement meetings.

It may be the case that the personal representative has to attend Court but this is rare in medical negligence claims.

The Compensation

Any compensation which is ultimately agreed upon will be distributed in accordance with the terms of your Will. In the event you did not leave a Will in place at the time of your death, the compensation will then be distributed in accordance with the rules of intestacy.

If you pass away before settlement of your Claim is agreed, certain aspects of the compensation may be reduced. This is however largely only future losses (such as loss of earnings or care costs) which can no longer be claimed.

The Fatal Accidents Act 1976 allows any dependants (i.e. spouse and children) to claim for the financial impact of the death but only if the death was caused as a result of the negligence. The Estate may be able to make additional claims, such as, Loss of dependency, Statutory Bereavement Award and Funeral expenses.

Does the three year limitation period still apply?

If you pass away within the typical three year time frame and if the claim has not yet been submitted to Court, the limitation period can re-set, allowing the personal representative to have a further three years to pursue the claim and issue proceedings from the date of death.

How Hodgkinsons Solicitors can help?

Dealing with a loved one’s claim after they pass can be tricky as it requires specialist legal advice.

Our specialist Clinical Negligence team is patient, compassionate and will provide you with advice, support and representation throughout the claims process. If you would like to speak with a member of our Clinical Negligence Department, please contact our Team on 01754 897150 or alternatively head to our website and complete an online enquiry form where a member of the team will be in touch.