Reasonably often, clients consult us following the death of a loved one, resulting from apparent negligent medical care.
I have spoken to a potential new client this week, traumatised by the tragic death of their child as a consequence of what seems from the client’s account to be clearly negligent care on the part of a GP (who failed to take any action despite complaints that the child had vision disturbance and excruciating headaches for weeks prior to their death).
In Australia, in such circumstances, claim can be brought by the surviving parent/child/relative, but ‘only‘ for the psychological injury suffered by them. No claim can be brought for the suffering and death per se of the victim of the negligent care. This is different from the US, though some strange rules appear to apply there (for example see here).
Sadly, the most common situation in which I have seen such claims, concerns negligent obstetric care, leading to the death during childbirth (or in utero) of the baby. In such claims, the parents’ entitlement to compensation for the loss of their child, if it can be shown that the obstetric care was negligent, is limited to compensation for their psychological or psychiatric suffering. No claim exists for the loss of the child in itself. No claim can be made for the loss of an opportunity for life by such child.
Further, no claim can be brought at all if all the parents suffer is "normal grief" (whatever this may mean!) falling short of amounting to a psychologically or psychiatrically diagnosable condition. This is an entirely illogical (and utterly absurd in practice) restriction upon those who can claim. It is justified on (dodgy) policy grounds of limiting the scope of people able to bring claim.
Clients are often dismayed to hear of these restrictions (as was my client this week), which mean that where death of a child results from negligent care, in most cases, entitlements to compensation will be modest. For now (and there is no sign of any inclination for the courts to expand the scope or extent of liability at present), unfortunately these limits will however continue to apply, whether fair, just or not.