*The contents in this blog relates to legislation in New South Wales.
If a loved one has died as a result of negligence in the hospital or medical system, there are limited avenues available for a family member to seek compensation by means of redress for the loss of their loved one.
Compensation is not awarded by reason of the death itself, nor is compensation based on the severity of the negligence that caused the death, no matter how egregious.
Rather, the Court seeks to place the family member back in the same position they would otherwise have been in had the death not occurred, financially and otherwise with various limitations, exceptions and set-offs.
The types of claims available to surviving family members include:
- Dependency claim: Persons who were financially dependent upon the Deceased may have a dependency claim available to them. Recovery of compensation under this category can be substantial, particularly if the Deceased had been earning a robust income and financially providing for and supporting a partner or children prior to her or his death. Dependents will be compensated for the loss of the benefits they reasonably would have been expected to receive from the Deceased had he/she lived. This type of claim is generally only available to close family members, such as parent, step-parent, husband, wife, de facto partner, child, sibling, half-sibling and grandparent.
- A nervous shock claim. A family member of the Deceased (or a non-family member who witnessed the Deceased being killed, injured or being put in peril), may claim compensation if they have suffered a recognised psychiatric illness as a result of the death. Recognised psychiatric illnesses for the purpose of compensation include those such as depression, PTSD or anxiety disorder and are not to be confused with grief, anger or distress, which are not recognised as injuries and as such are not compensable. Unless the psychiatric harm is significant however, the amount of the compensation may not warrant a claim being made, as the legal costs and expenses involved in investigating, commencing and maintaining the claim, may outweigh the compensation amount and leave the person out of pocket at the end of the day. Examples of significant psychiatric injuries include injuries which are permanent in nature and/or injuries that affect a person’s ability to carry on their normal working and personal life and ability to earn an income.
- Survival of action to estate claim: After death, rights of action the Deceased may have had accrue to, and for the benefit of, the Estate. The types of compensation that may be recovered as part of an estate claim are limited and include: recovery of medical expenses incurred before the death; loss of income or earning capacity to date of death (where the Deceased does not die immediately); the value of gratuitous services provided to the plaintiff to date of death; and funeral expenses.
If the death was not caused by the alleged negligent act or omission, then compensation for physical or mental injury or pain and suffering may also be available.
- Loss of services: Where the Deceased provided gratuitous services such as caring or raising children or domestic home services, compensation may be obtained for the value of the lost services.
In some cases, none of the above avenues to seek compensation as means of redress will be available to surviving family members. This may feel grossly unfair and unjust for devastated family members who have been left behind. This may be the case, for example, where the Deceased is an elderly, retired parent. There are other avenues available for redress however, which are aimed at holding the negligent party to account and protecting the public from such an event recurring in the future (although not necessarily involving compensation) and should be considered. These include:
- Raising a complaint with HCCC / AHPRA.
- Pressing for an investigation by the Coroner whose jurisdiction may be triggered in circumstances where the Deceased’s death was not a reasonably expected outcome of a health related procedure performed in relation to the Deceased.
Turner Freeman Lawyers can help you understand your rights if you have suffered the loss of a loved one. You can contact our specialist medical negligence team, on 02 8222 3333.
