Losing someone you love is hard enough. Finding out that their death may have been caused or hastened by poor medical care can bring anger, guilt and a lot of questions. In England, the law allows certain people to bring a claim when a death was caused by negligent treatment. This guide explains who can claim, what a claim can cover and the time limits. You can also read more about our medical negligence claims work and our fatal injury and wrongful death claims service.
Our Bradford medical negligence team helps families across Bradford, West Yorkshire and the rest of England. If the death followed an inquest, our guide to inquests and medical negligence may also help. For questions about time, see how long you have to make a medical negligence claim.
Two kinds of claim after a death
When someone dies because of negligent care, the law in England usually allows for two related claims. They are normally brought together.
1. A claim for the estate (Law Reform (Miscellaneous Provisions) Act 1934)
Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 says that a claim the person could have brought while alive survives for the benefit of their estate.[1] It covers what they went through and lost between the negligence and their death. That can include:
- pain and suffering before death
- loss of earnings up to the date of death
- care and other costs during that period
- funeral expenses[1]
The estate’s claim cannot include loss of income for any period after death.[1] Those losses are dealt with in the dependency claim below.
2. A claim for dependants (Fatal Accidents Act 1976)
Section 1 of the Fatal Accidents Act 1976 allows a claim for the benefit of the “dependants” of someone whose death was caused by a “wrongful act, neglect or default”.[2] The Act lists who counts as a dependant. They include:
- a husband, wife or civil partner, or a former spouse or civil partner
- a partner who lived with the person as their husband, wife or civil partner in the same household for at least two years immediately before the death
- parents and other ascendants, and anyone the person treated as a parent
- children and other descendants, and anyone treated as a child of the family in a marriage or civil partnership
- brothers, sisters, uncles and aunts, and their children[2]
A dependant must also show a financial or practical loss, such as the income or household help the person would have provided.
The bereavement award
Section 1A of the Fatal Accidents Act 1976 provides a fixed bereavement award, currently £15,120 where the death (or cause of action) arose on or after 1 May 2020; the previous figure was £12,980.[3][4] It is available only to:
- the husband, wife or civil partner
- a cohabiting partner who meets the two-year rule
- the parents of a child under 18 who was never married or in a civil partnership (or the mother, if the child’s parents were not married)[3]
If more than one person qualifies, the award is divided equally.[3] The sum is set by law and can be changed by the Lord Chancellor, so it should be checked at the time of any claim.[3]
Who brings the claim?
Under section 2 of the Fatal Accidents Act 1976, the claim is normally brought by the executor or administrator of the estate (the personal representative). If there is no personal representative, or none has brought a claim within six months of the death, any of the dependants can bring it on behalf of everyone entitled.[5] Only one action can be brought for the same death.[5] That’s why it is usually best for the family to agree early on who will deal with the claim.
If there is no will, someone may need to apply for letters of administration so they can act for the estate. We can explain how this fits with the claim.
What has to be proved?
The rules are the same as in any medical negligence claim, so the family needs to show:
- Breach of duty: the care fell below the standard of a reasonably competent professional in that field.
- Causation: that failure caused or materially contributed to the death, or to injury and losses before it.
This usually means independent expert evidence based on the medical records. Records, any hospital investigation report and the findings of an inquest can all help, but an inquest does not decide civil liability.[6] Compensation varies a great deal from case to case, depending on the person’s circumstances, dependants and losses, so we don’t give average figures.
Time limits
The Limitation Act 1980 sets time limits for these claims:
- Estate claims: three years from the date of death, or from the date the personal representative knew (or could reasonably have known) the relevant facts, whichever is later (section 11(5)).[7][8]
- Fatal Accidents Act claims: three years from the date of death, or from the date of knowledge of the person the claim is for, whichever is later (section 12(2)).[9]
- If the person who died was already out of time to bring their own claim when they died, a dependency claim may not be possible (section 12(1)).[9]
The courts have some power to extend these limits[10], but you shouldn’t rely on that. Getting advice early also makes it easier to get records and evidence.
How we can help
Who will handle your claim
Sadaf and Farhan can:
- request and review the medical records
- explain who in the family can claim and how the estate and dependency claims fit together
- instruct independent medical experts
- deal with the hospital trust, GP practice or care provider and their insurers on your behalf
We know many families don’t want to travel to an office while grieving. We can speak by phone or video, deal with things by post, or arrange a home visit where that suits you better. You’re also welcome at our Bradford office at Unit 3, Campus Road, Listerhills Science Park, BD7 1HR. We’ll explain how the claim could be funded, including no win, no fee, before any work starts.
Call 0333 777 5001, or email enquiries@cooperhallsolicitors.co.uk.
This guide is general information about the law of England and is not legal advice about your situation. Cooper Hall Solicitors Limited is authorised and regulated by the Solicitors Regulation Authority (SRA number 639467).
FAQs
Who can make a medical negligence claim for someone who has died?
Normally the executor or administrator of the estate brings the claim. If there isn’t one, or no claim has been started within six months of the death, a dependant listed in the Fatal Accidents Act 1976 can bring it on behalf of everyone entitled.[5]
Can a cohabiting partner claim?
Yes, if they lived with the person in the same household as their husband, wife or civil partner for at least two years immediately before the death. A partner[2] who meets this rule may also be entitled to the bereavement award.[3]
How much is the bereavement award?
It is £15,120 under section 1A of the Fatal Accidents Act 1976 where the cause of action arose on or after 1 May 2020.[3][4] It is a fixed sum set by law and is divided equally if more than one person qualifies.
How long do we have to claim?
Usually three years from the date of death, or from the date of knowledge if later, under sections 11 and 12 of the Limitation Act 1980.[7][9] Get advice early, because different rules can apply in different situations.
Do we have to wait for the inquest before claiming?
Not necessarily. You can get advice and records at any time. Inquest evidence can be useful, but the coroner does not decide civil liability[6], and waiting can eat into the time limit.
Do I have to come to your office?
No. We can speak by phone or video, deal with things by post, or visit you at home.
- Law Reform (Miscellaneous Provisions) Act 1934, s1 (survival of causes of action; s1(2) exclusions and funeral expenses) ↩
- Fatal Accidents Act 1976, s1 (right of action; dependants s1(3)) ↩
- Fatal Accidents Act 1976, s1A (bereavement; cohabiting partner s1A(2A); amount s1A(3); division s1A(4)) ↩
- Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020, SI 2020/316, art 2 (sets £15,120 for causes of action accruing on or after 1 May 2020) ↩
- Fatal Accidents Act 1976, s2 (who brings the action; six months; one action only) ↩
- Coroners and Justice Act 2009, s10(2) (determination must not appear to decide civil liability or criminal liability of a named person) ↩
- Limitation Act 1980, s11 (personal injury: 3 years; s11(5) where the injured person dies) ↩
- Limitation Act 1980, s14 (definition of date of knowledge) ↩
- Limitation Act 1980, s12 (Fatal Accidents Act claims: s12(1) and s12(2)) ↩
- Limitation Act 1980, s33 (court discretion to disapply time limits) ↩
