According to the law, when someone dies as a result of medical negligence their entitlement to pursue a claim for compensation dies with them. However, if you have personally suffered as a result of the death of a family member that was caused by medical negligence, you may be entitled to compensation.
Nervous shock/pure mental harm claims
The law in New South Wales provides that if you have suffered mental harm or nervous shock as a result of the negligent death of a close family member you may be entitled to make a claim for damages.
In order to claim damages for pain and suffering for any psychiatric injury you suffered as a result of the death of a loved one, you must prove that you have suffered from a recognised psychiatric illness. Therefore for the purpose of the legal proceedings, you would need to undergo an assessment by an expert psychiatrist to provide their opinion as to whether you have suffered from this.
In terms of damages for your pain and suffering, there is a maximum amount that can only be awarded in a most extreme case and that amount is currently $658,000. An example of a “most extreme case” may be a quadriplegic child with a brain injury. The severity of your pain and suffering must be at least 15% of the most extreme case in order for you to receive any compensation for pain and suffering. A percentage that translates into a monetary amount is allocated for your pain and suffering by the Court.
Dependency claims & funeral expenses
You may also be entitled to compensation for the loss of the financial benefit and care benefit that you would have derived from your loved one prior to their death, in addition to funeral costs.
Case example – Rasmussen v South Western Sydney Local Health District  NSWCSC 65
In this matter the plaintiff was the mother of a child who died when he was four days old at Liverpool hospital as a result of complications associated with the child’s birth. In this case the defendant admitted liability (that they breached their duty of care and that breach caused or materially contributed to the death of the child) so the Court was only required to determine the extent of the damage that the plaintiff suffered.
The plaintiff suffered an anxiety disorder and a pathological grief reaction which are both considered to be recognisable psychiatric illnesses. The Court assessed the plaintiff’s pain and suffering at 40% of a most extreme case and awarded the plaintiff $214,000 for pain and suffering.
Get in touch with us
At Turner Freeman we have lawyers who specialise in negligence claims. Our Sydney Partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law.
You can always call us on 13 43 63 to speak to one of our medical law experts.