Medical Negligence - Claims surviving death

25 MAR 2019


Is compensation payable when a close family member dies as a result of medical malpractice? This is a question that I am asked frequently. It often arises in a hospital setting where there has been an allegation that malpractice has led to the death but can also arise as a result of a motor accident or other type of accident. 

Limiting this discussion to the medical malpractice setting, people are often surprised to learn that there is no automatic right to compensation, even where there is ample evidence that the death has been caused by medical malpractice.  Deciding if there is a claim is a 3 step process. The first step is to determine whether the deceased has received appropriate care. Secondly, if proper care had been provided, was the person likely to have survived, despite the underlying medical problem which resulted in the admission to hospital.

The misconception is that having proven these 2 issues a claim must follow. Unfortunately, with some minor exceptions, when a person dies any rights to compensation can only be made by a person who is impacted by that death. That is the third step. Whether a claim ‘survives’ the death depends on whether the deceased had any dependants for whom he/she was responsible either financially or by providing domestic or personal care. A financial claim arises where the dependants of the deceased prove that they were reliant on the earnings of the deceased, for example, to pay for rent, clothing, food etc. This can include reliance on Centrelink payments as well as earnings from employment. This is a claim ordinarily made by a surviving partner and their dependent children, if any. A claim for services covers a situation where the deceased was responsible for performing household duties such as mowing lawns, cooking and cleaning, or caring for children. Both of these claims can be made for the period into the future during which it was expected that the dependency would have continued but for the death.

A second claim also arises if a close family member suffers a psychiatric condition, such as depression, due to the death. In that circumstance the person is making the claim for his/her own medical condition arising out of the death and may be entitled to compensation for pain and suffering, psychiatric treatment expenses and wage loss.

For more information on the above article we recommend that you contact Accredited Specialist Joe Bonura on 02 4626 5077 or

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication

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