Monday, 24 June 2013

Delay in Diagnosing Cancer - Part 6: the Dying Claimant

In this sixth and final blog post on claims for delay in diagnosing cancer, I consider the problems litigators face when representing a client with a shortened life expectancy. As the decision in Thompson-v-Arnold demonstrated, final resolution of a personal injury claim will preclude a later claim by dependent relatives under the Fatal Accidents Act 1976 should the claimant later die prematurely as a result of the negligent delay. So, litigators have to consider very carefully the consequences concluding a personal injury claim.

There are various options:

-  Bring the PI claim and conclude it with the full knowledge and agreement of all who would be affected by it, including the potential dependants under a later FAA claim;

- Do not bring a PI claim but bring a FAA claim after the death of the individual with cancer;

- Bring a PI claim for delay in diagnosis and stay the claim upon receipt of an interim payment. As and when the claimant dies then convert to a FAA claim, giving credit for the interim;

- Bring a PI claim for delay in diagnosis and resolve certain heads of claim such as general damages for pain, suffering and loss of amenity, but stay the remaining heads of claim and apply to restore after the death of the claimant, converting the claim to a FAA claim;

- Bring a provisional damages claim (settlement of which does not preclude a later FAA claim);

- Resolve the PI claim as a PPO with periodical payments to continue after the death of the claimant for the benefit of the dependants (see my earlier blog for the power to make such an order).

Which option best suits the particular circumstances will depend on a number of factors including:

- Is the claimant's life expectancy very limited?

- How confident is the prognosis?

- Are there dependants/likely to be dependants?

- What is the likely value of the PI claim including any Lost   Years claim?

- What is the likely value of the FAA claim?

- Is the Defendant amenable to resolving both the PI claim and the future/potential  FAA claim (suitably discounted for early receipt? See the Lawtel report of the out of court settlement in Crowther-v-Jones.

- Is the Claimant anxious to bring and determine his/her claim before he/she dies? Or would they prefer not to have to deal with litigation in the last months of their lives?

- Is liability in dispute (can an interim payment be secured)?

- Will it be possible to prove to the requisite standard of proof, that the claimant's future death is attributable to the negligent delay in diagnosis?

- Is there an offer from the Defendant which if accepted could provide certainty of outcome?

Be careful to consider who might be affected. Who are your clients? Who would benefit from/be disadvantaged by any settlement or resolution of the claim for delay in diagnosing cancer? Bear in mind that if settlement is reached which includes recovery for a protected party, even if that is in relation to a claim under the FAA which could not presently be brought because the Claimant is still alive, the court's approval should be sought. This appears to have been the case in the case of Crowther-v-Jones.

One size does not fit all. You have to adopt a strategy to suit the circumstances of each case.

That concludes the whistle-stop tour around claims for delay in diagnosing cancer. I have put the links to all the posts here, together with links to case law and authorities.

Thanks for staying the course!

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