Representing families who have suffered the death of a child is one of the most heart-breaking parts of investigating medical treatment.
Our investigations focus on finding out what happened and why. In cases involving the loss of a baby due to pregnancy related care we often instruct independent midwifery, obstetric and neonatology experts to review the care and advise if failures occurred. Many families express to me their hope that by bringing a medical negligence claim, the hospital or clinic will learn from the failures that led to the death of their child, changes will be made and no other family will have to go through the same experience.
It is also important to families that their devastating loss is formally recognised, both with an apology and payment of damages.
The statutory bereavement award is a form of compensation available to parents who have suffered the loss of a child under the age of 18. It is often difficult to explain to parents that this compensation is limited to only £15,120 (for deaths that occurred on or after 1 May 2020).
Whilst no amount of damages can compensate for the loss of a child, this is often cited as the reason why a significant increase to the damages is not necessary. However, fair compensation that goes some way to recognise the significance of the loss is an important step in providing some form of resolution and access to justice for the family. The current level of bereavement damages is too low. Not only must the statutory bereavement damages be shared between the parents if they were married, if the child’s parents were unmarried then the father cannot claim bereavement damages.
In cases where the baby is stillborn, no statutory bereavement award is recoverable. The law rather unsympathetically does not class a stillborn baby as a legal person and therefore even when born at full term there is no recognition of this loss. The mother can still bring a claim in her own right for damages for her pain and suffering and any psychological injury but the distinction between babies born alive and those that are stillborn, both of whom are much loved by their parents, is difficult to explain or justify. For fathers, established case law makes it very difficult for them to bring a claim for psychological injury.
In Scotland there is no statutory limit on the level of bereavement damages that can be claimed and the amount is determined individually. This is at least a fairer system and the damages recovered often significantly exceed those that can be recovered in England and Wales.
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Are there likely to be any changes to bereavement damages in England and Wales?
The statutory bereavement award was only recently increased from £12,980 to £15,120 in 2020 (after a 7 year gap) and it therefore seems unlikely that the government will look to increase this again any time soon and if it does so the increase will probably be modest. A significant change to the assessment of bereavement damages is required but a step in the right direction would be to extend the entitlement to bereavement damages to both parents in their own right which would at least go some way to acknowledging the loss suffered by both parents.
This article was written by Caroline Murgatroyd of Hudgell Solicitors. Caroline is an associate solicitor who specialises in medical negligence claims.
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