Making a Medical Negligence Claim on Behalf of a Child or a Loved One Who Has Died

You can bring a medical negligence claim on behalf of someone else, whether that is a child who cannot act for themselves, an adult who lacks the mental capacity to manage their own legal affairs, or a family member who has died as a result of negligent medical care. The legal mechanism depends on the circumstances, but in each case the law provides a clear route for the appropriate person to pursue a claim and seek compensation.

This guide explains how each situation works in practice, what role you would play, what the claim can cover, and how the process operates from start to finish.

Claiming on Behalf of a Child

Who Can Bring the Claim?

A child under the age of 18 cannot bring a legal claim in their own name. Under the Civil Procedure Rules, Part 21, a child must be represented by a litigation friend: a person who conducts the proceedings on the child’s behalf and gives instructions to the solicitor in the child’s best interests. In most cases the litigation friend is a parent, but it can be any suitable adult, including a grandparent, another close relative, or in some cases a professional appointed for the purpose.

To act as a litigation friend, you must be able to fairly and competently conduct the proceedings and have no interest adverse to the child. Your solicitor will guide you through what this involves, and in practice the role is straightforward for most parents.

What Happens When the Child Grows Up?

A child has their own independent right to bring a claim once they turn 18. Under section 11 of the Limitation Act 1980, the standard three-year limitation period for personal injury claims does not begin to run until the child’s 18th birthday. This means a claim can be brought at any point before the child’s 21st birthday, regardless of how long ago the negligence occurred.

However, there are strong practical reasons not to wait. Evidence becomes harder to obtain over time, medical records may be destroyed, and memories fade. More importantly, a child with ongoing care needs, therapy requirements, or educational support can benefit enormously from interim payments, which are payments on account of the final damages award made before the claim is settled. These can only be accessed once a claim is underway, so early action directly improves the child’s access to support.

Court Approval of Any Settlement

Where a medical negligence claim on behalf of a child reaches settlement, the court must approve the terms before any money changes hands. This is a protective requirement designed to ensure that the settlement is genuinely in the child’s best interests and that the compensation is adequate. The approval hearing is not adversarial: it is a process by which a judge reviews the evidence and the settlement figures and confirms that they are appropriate. In straightforward cases the hearing is relatively brief. In more complex cases, particularly those involving catastrophic injury and very large awards, the hearing may require more detailed consideration.

Any compensation awarded to a child is typically held in the Court of Protection or managed through a trust or deputy arrangement until the child is old enough to manage it themselves, unless the court directs otherwise.

What Can a Child’s Claim Cover?

A claim on behalf of a child follows the same structure as any medical negligence claim. It can include:

• General damages for pain, suffering, and loss of amenity
• The cost of past care and therapy, including care provided by family members
• Future care costs, which in serious cases can extend over decades and represent the largest element of the award
• Lost future earnings where the injury will prevent the child from working
• The cost of specialist equipment, educational support, adapted accommodation, and ongoing medical treatment
• Psychological therapy and specialist case management

In the most serious cases, such as birth injuries causing cerebral palsy or brain damage, the total compensation can be very substantial, reflecting the lifetime of support the child will require.

Claiming on Behalf of an Adult Who Lacks Mental Capacity

Where an adult lacks the mental capacity to manage their own legal affairs, for example because of a severe brain injury, a long-standing cognitive condition, or a progressive neurological disease, they are described in law as a protected party. A protected party cannot bring or conduct legal proceedings in their own name and must, like a child, be represented by a litigation friend.

The litigation friend for a protected party is typically a close family member, though it can also be a professional deputy appointed by the Court of Protection. The role carries the same responsibilities as for a child: to conduct the proceedings in the protected party’s best interests and without any conflict of interest.

Crucially, the limitation period under the Limitation Act 1980 does not run against a protected party for as long as their incapacity continues. Where a person lacks capacity throughout their lifetime, there is effectively no limitation deadline, though again there are strong practical reasons to bring a claim as early as possible rather than allowing evidence to deteriorate and support needs to go unmet.

As with claims on behalf of children, any settlement involving a protected party requires court approval before it takes effect.

Claiming Following the Death of a Loved One

If a family member has died as a result of medical negligence, there are two distinct legal routes that may be available, and in many cases both are pursued together.

Claims by the Estate: Law Reform (Miscellaneous Provisions) Act 1934

Under the Law Reform (Miscellaneous Provisions) Act 1934, the estate of a person who has died as a result of negligence can bring a claim for the losses suffered by that person up to the point of their death. This can include:

• The pain and suffering they experienced as a result of the negligent treatment before they died
• Any financial losses they suffered in the period between the negligence and the date of death, including lost earnings during that period
• The cost of any private treatment or care they required as a result of the negligence

The claim is brought by the executor or administrator of the estate, either the person named in the deceased’s will or, where there is no will, the person appointed as administrator of the estate under the rules of intestacy.

Claims by Dependants: Fatal Accidents Act 1976

Separately from the estate’s claim, certain family members may bring their own claims under the Fatal Accidents Act 1976 for the losses they have personally suffered as a result of the death. This Act allows claims from a defined category of dependants, including spouses, civil partners, parents, children, and other close relatives who were financially or practically dependent on the deceased.

The Fatal Accidents Act 1976 allows two types of claim.

Bereavement damages are available under section 1A of the Act to a limited class of claimants: the spouse or civil partner of the deceased, or the parents of an unmarried child under the age of 18. The bereavement award is a fixed sum set by statute and is intended to acknowledge the grief caused by the loss, though it does not attempt to put a financial value on bereavement itself.

Dependency claims compensate dependants for the financial and practical support they have lost as a result of the death. This can include lost income where the deceased was the main earner in a family, the value of services the deceased provided such as childcare or household management, and other financial losses that flow from the death. The value of a dependency claim can be very significant where the deceased was relatively young and was providing substantial financial support to a family.

Time Limits Following a Death

The estate generally has three years from the date of death to issue proceedings, provided the original limitation period had not already expired before the death. The dependants’ claims under the Fatal Accidents Act 1976 are subject to the same three-year period running from the date of death. Where the deceased would themselves have been within time to bring a claim at the date of death, the three years for the estate and dependants runs from that date.

What to Do Next

If you are considering bringing a claim on behalf of a child, a protected party, or a deceased relative, the practical steps are as follows:

1. Seek specialist advice as early as possible. A clinical negligence solicitor will assess the circumstances, advise on the appropriate legal basis for the claim, and take on the practical steps of obtaining records and commissioning expert evidence.
2. Confirm who should bring the claim. In cases involving a child or protected party, your solicitor will confirm whether you are the appropriate person to act as litigation friend and explain what the role involves. In cases involving a death, the solicitor will confirm whether the claim should be brought by the executor or administrator, the dependants, or both.
3. Medical records are obtained. Your solicitor will request the full clinical records from the relevant NHS trust or private provider on behalf of the claimant.
4. Independent expert evidence is commissioned. Once the records are obtained, an appropriate medical expert will review them and provide an initial opinion on whether there are reasonable grounds to pursue the claim.
5. The claim proceeds under the Pre-Action Protocol for the Resolution of Clinical Disputes, which sets out the structured process for investigating, notifying, and if necessary litigating the claim.

Talk to Satchell Moran Solicitors

Bringing a claim on behalf of a child, a protected party, or a loved one who has died requires both legal expertise and genuine sensitivity. At Satchell Moran Solicitors, our specialist clinical negligence team handles these claims with the thoroughness and care they deserve, and we act on a no win, no fee basis so that the cost of legal representation is not a barrier to pursuing justice. As a dual Lexcel accredited firm, we are committed to the highest standards of client care throughout every stage of the process.

If you are considering a claim on behalf of someone else, contact us today for an initial, confidential and no obligation conversation about your options.