Can survivors claim compensation for the deceased's patient injury?

From time to time, an injured party who has suffered a patient injury dies before the case is finally settled, either as a result of the patient injury or for other health-related reasons. Whether the survivors' claim for redress for the deceased's patient injury is preserved depends on whether the patient injury was the cause of the injured party's death, or whether the injured party's death was due to other health-related causes.

If the patient injury is the cause of the injured party's death, the deceased's spouse, cohabitant, children or parents may be entitled to redress in accordance with section 3-5 last paragraph of the Damages Act. The survivors' claim for redress is an independent claim and must be made directly to the place of treatment.

If the deceased suffered a patient injury as a result of gross negligence by healthcare personnel, but dies as a result of other health-related causes, the survivors can inherit the redress claim. However, section 3-10 of the Damages Act states that a claim for redress can only be transferred by inheritance as long as it «has been recognised or asserted in legal proceedings». The starting point is thus that redress claims cannot be inherited, as it is a personal claim that must have been disposed of by the directly injured party for it to be transferred by inheritance.

This is an important rule that the injured party and their next of kin, or lawyer, must be aware of. If the injured party's lawyer has submitted a claim for redress to the responsible treatment centre, it may take a long time for the treatment centre to respond to the claim if the lawyer is not diligent in following up the case. If the injured party dies for other health-related reasons before the treatment centre has responded to the enquiry, the compensation claim will lapse and cannot be inherited by the survivors.