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Wrongful Death Due to Medical Negligence

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Healthcare providers in Ireland generally deliver a very high standard of care to their patients, overseen by regulators including the HSA, the Medical Council, and the PSI. However, in some rare instances, medical treatment can fall short of the accepted standards of care, leading to patients seeking compensation for medical negligence. In even rarer circumstances, the negligence may lead to the patient’s death, initiating a wrongful death compensation case.

Here we look at some of the scenarios in healthcare settings that could potentially result in wrongful death, and how families can pursue compensation in such circumstances.

What is wrongful death due to medical negligence?

Wrongful death due to medical negligence occurs when a patient dies because the healthcare provider failed to meet the accepted standards of care. This negligence can take various forms, such as misdiagnosis, surgical errors, or failure to recognise and treat life-threatening conditions in a timely manner. In these cases, the healthcare provider’s actions or inactions directly contribute to the patient’s untimely death.

To establish a wrongful death claim in this context, it typically needs to be shown that the medical practitioner owed a duty of care to the patient, breached this duty through negligence, and that this breach directly caused the patient’s death. The specifics of what constitutes negligence in medical practice can vary, but generally, it involves a deviation from the standard of care that a reasonably competent medical professional would provide under similar circumstances.

Families of the deceased may pursue legal action to seek compensation for their loss. This compensation can cover various aspects, such as medical expenses incurred before death, funeral costs, lost income, and compensation for emotional distress (solatium).

Types of medical negligence cases that can lead to wrongful death claims

Scenarios where medical negligence can lead to a wrongful death claim include the following:

  • Misdiagnosis or Delayed Diagnosis – This occurs when a healthcare professional fails to correctly diagnose a serious condition, or there is an unacceptable delay in making the diagnosis. As a result, the patient misses critical treatment opportunities that could have prevented their death.
  • Surgical Errors – These involve mistakes made during surgery, such as operating on the wrong body part, leaving surgical instruments inside the patient, or performing the incorrect procedure. Whilst exceptionally rare, these sorts of errors can result in fatalities.
  • Anaesthesia Errors – Anaesthesiologists must calculate and administer anaesthesia carefully. Errors in dosage or failing to monitor the patient’s vital signs can lead to fatal outcomes, such as respiratory failure or cardiac arrest.
  • Medication Errors – Prescribing or administering the wrong medication or dosage can be fatal. This includes errors in the type of medication given, the dose, the method of administration, or failure to recognise harmful drug interactions.
  • Childbirth Negligence – This encompasses negligence during pregnancy, labour, and delivery that leads to the death of the mother or the newborn. Examples include failing to manage pregnancy complications, errors during delivery, or not properly monitoring the baby’s condition.
  • Failure to Treat – This happens when a healthcare provider fails to treat a patient’s condition appropriately, leading to deterioration of the patient’s health and eventual death. This could be due to mismanagement of a condition or failure to provide necessary medical interventions.
  • Hospital-Acquired Infections – If a patient acquires an infection while in a healthcare setting due to poor hygiene standards or negligent care, and this leads to their death, this can form the basis of a compensation claim.
  • Failure to Obtain Consent – Performing a medical procedure without the patient’s informed consent, leading to complications and death, is another form of negligence that can form the basis of a claim.

Who can bring a wrongful death claim?

A wrongful death claim can be brought by the deceased person’s family members or dependents. The claim is typically made by the personal representative of the deceased’s estate, but if no action is taken within six months, any of the entitled dependents can proceed with the claim on behalf of all those entitled.

Who are the personal representatives of the deceased’s estate?

They are individuals responsible for administering the deceased’s estate. They are appointed through the deceased’s will as executors or, if there’s no will, by the court as administrators. Their role includes paying off debts, distributing assets to beneficiaries, and handling legal matters related to the estate.

Who are statutory dependents in wrongful death cases?

A statutory dependent refers to an individual who was financially dependent on the deceased person at the time of their death. This includes a wide range of relationships, not just limited to immediate family members. It may include:

  • A Spouse or Civil Partner – The legally married spouse or registered civil partner of the deceased.
  • Children – This includes natural children, stepchildren, and legally adopted children of the deceased.
  • Parents – The mother and father of the deceased if they were financially dependent on them.
  • Siblings – Brothers and sisters of the deceased, including half-siblings, if they relied on the deceased for financial support.
  • Grandchildren – If they were financially dependent on the deceased.
  • Other Relatives – In certain cases, other relatives who were financially dependent on the deceased, like nieces, nephews, or cousins, can be considered.
  • Cohabitants – A person who lived with the deceased in a relationship akin to a marriage or civil partnership for a specified period before the death may also be eligible.

The key factor for all these categories is the demonstration of financial dependency on the deceased at the time of their death. This dependency is not limited to total reliance but can include any significant contribution to their overall financial support.

What types of compensation can be claimed for wrongful death?

Compensation in wrongful death cases is divided into three main categories:

  • Solatium – This refers to compensation for mental distress experienced by the deceased’s immediate family members. It’s a fixed amount shared among eligible relatives.
  • Special Damages – This may include medical expenses incurred before death, funeral and burial costs, loss of the deceased’s earnings, and other out-of-pocket expenses directly linked to the death.
  • Loss of Dependency – This is for the financial loss suffered by the dependents of the deceased. It includes the loss of income and benefits that the deceased would have provided if they had lived.

The exact nature and amount of compensation can vary depending on the specifics of the case, such as the deceased’s income, their expected future earnings, and the degree of dependency of the claimants on the deceased.

Solatium and the Civil Liability Act 1961

The Civil Liability Act 1961 introduced the concept of solatium, which refers to compensation for mental distress caused to the family of a deceased person as a result of wrongful death. Under this Act, solatium is awarded to acknowledge the grief and suffering of the deceased’s close relatives.

Key aspects of solatium under the Civil Liability Act 1961 are:

  • Eligibility – Solatium is available to specific categories of the deceased’s relatives, typically including the spouse, children, parents, and possibly other dependents.
  • Fixed Amount – The amount of solatium is fixed by law and subject to periodic adjustments. It’s not calculated based on the actual emotional distress but is a standardised amount. It is currently capped at €35,000 but may be subject to change in the future.
  • Shared Among Relatives – The total solatium amount is divided among the eligible relatives.
  • Purpose – The purpose of solatium is to provide symbolic recognition of the emotional impact of the death, rather than to fully compensate for emotional suffering.

The Act sets out a framework for how solatium should be approached in wrongful death cases, but the specifics can vary with each case and may be subject to legal interpretation and adjustments over time.

What are special damages in wrongful death cases?

Special damages relate to specific financial losses that are directly attributable to the death. Unlike general damages, which are more abstract and compensate for non-economic losses like pain and suffering, special damages are tangible and quantifiable. They typically include:

  • Medical Expenses – Costs incurred for the medical treatment of the deceased prior to their death.
  • Funeral Expenses – The cost of the funeral and any related expenses.
  • Loss of Earnings – If the deceased was hospitalised or unable to work due to the injury before their death, the loss of income during this period is covered.
  • Property Damage – If applicable, any property damage that occurred due to the incident that led to the death.
  • Other Financial Losses – This can include travel expenses to the hospital, costs of hiring help or additional childcare necessitated by the deceased’s incapacity before death.

How is loss of dependency assessed?

An award for loss of dependency is based on the financial impact of the deceased’s death on their dependents. It considers the deceased’s net income, potential future earnings, their financial contribution to dependents, and the duration dependents would have needed support. The assessment includes the deceased’s and dependents’ life expectancies, any benefits received by dependents, and adjusts future losses for inflation and present value. This complex process often necessitates expert financial analysis and legal guidance for accurate and fair assessment.

How can I get advice on bringing a wrongful death claim?

If you are dealing with the very difficult consequences of losing a relative or partner due to wrongful death, the team at McCarthy + Co team provides an empathetic and highly confidential legal counsel service. Call us on 1800 390 555 and an experienced member of staff will discuss your situation and potential next steps. You can also email and we will get back to you as soon as we can.

John McCarthy

John McCarthy is a seasoned solicitor with almost 20 years of experience, specialises in personal injury and medical negligence claims, focusing particularly on high-value compensation cases. His extensive litigation experience spans Circuit Court, High Court and Supreme Court levels. John's practice involves a diverse range of cases, from personal injury and wrongful death to property damage, defective products, professional negligence and judicial reviews.


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