Tuesday, 30 July 2013

The Cost of Dying

The civil law is uncomfortable dealing with death. The rules on calculating dependency and multipliers and the restrictions on lost years claims are confusing and sometimes counter-intuitive.
The limited selection of those entitled to a bereavement award, the amount of the award and the impact of the Human Rights Act create a system of compensation which few would consider just and reasonable.

Compensation recoverable for a death can sometimes be less than it would be for a 6 month whiplash injury. A driver's insurer might be better off if the driver negligently kills another than slightly injuring them. I recently considered a case of alleged clinical negligence where the deceased was a single adult with no dependants. The only valid claim would have been for funeral expenses of about £2,000.

Even where there is a bereaved person who is entitled to the statutory award (now £12,980) the level of the award creates difficulties for the litigator.

Take for example a case of obstetric negligence. It can cost tens of thousands of pounds to investigate liability: expert midwifery,  obstetric, neonatal and paediatric opinions may be required and minute scrutiny of the medical records and CTG traces needed to determine whether there is liability. If the baby survived but developed severe cerebral palsy then the compensation which may follow a finding of liability is likely to be over £1 million. The costs of investigating liability are proportionate and can be justified. If the baby died then the likely claims will be for funeral expenses and bereavement damages: less than £15,000. How can the costs of investigating liability be justified as proportionate? Even if account is taken of the importance of the issues for the claimants, courts will be unlikely to allow a budget for investigating liability which, on the claimant's side alone, would be significantly higher than the likely damages.

The medical and legal issues are the same, but the bereaved will have much greater difficulty in achieving access to justice.

The challenging economics of fatal cases has often led litigators to seek damages for claimants for psychiatric injury as secondary victims. That is not always an easy solution - see my previous post. Where a baby is still-born, and therefore never lived, the courts have sought to circumvent the lack of entitlement to a bereavement award by awarding a similar amount for the loss of satisfaction in bringing a pregnancy to a satisfactory conclusion or other means - see Bagley-v-North Herts HA [1986] NLJ Rep 1014. See also the approaches taken in Kralj-v-McGrath [1986] 1 All ER 54 and Grieve-v-Salford HA [1991] 2 Med LR 295.

The bereavement award is not intended to be compensatory. It is the same for everyone regardless of how they have been affected by the death. The amount at which it is set is in a sense arbitrary. It has been argued that it should be dispensed with altogether - it is distasteful to put any figure on the value of a death. Others argue that it should be set much higher.

At present, where there is no entitlement to a bereavement award, or there is but there are no other substantial claims (for dependency or pre-death injury and losses) there is a risk that deaths which might be due to clinical negligence will not be adequately investigated. For good or ill, litigation is an important means through which deaths are investigated and those who might be responsible are held to account. There is the coronial system but in many cases  (and in particular those where there is no economically viable civil claim waiting in the wings) the bereaved will not be entitled to or be able to afford legal representation at Inquests. The state, through the NHS, will pay for representation for the NHS Trust which might be responsible for the death but not for the bereaved.

If the Inquest does not provide a full inquiry in which the bereaved can fully participate and the costs of litigation are disproportionate because of the limited compensation recoverable, then certain deaths which might have been avoidable will not be investigated and those who might be responsible will not be held publicly accountable. That would be no good for the bereaved, no good for the institutions who might be responsible and no good for the rest of us - we all want lessons to be learned.

I am grateful for Katie Donne of Barcan Woodward for suggesting the topic for this post

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