Coincidentally, in month or so before Christmas I have handled pre-trial settlement negotiations in relation to 2 similar cases, in the sense they both involved negligence allegations which it was claimed had led to the death of my clients’ life partners (in old fashioned speech: wives..).
Although the background and issues with the medical care were entirely different, the first thing that was notable in each case was the rawness and severity of their persisting anger and grief, despite the period that has elapsed (5 and nearly 10 years respectively) since my clients’ respective wives died. Niether had acheived any sense of closure.
As we negotiated in each case, there was an air of unreality. In particular, what involvement in this process highlighted is the disconnect between the most profound aspect of loss suffered by my clients and the loss the Law is interested in and prepared to compensate.
In both case, my clients overwhelming concern and loss was the loss [per se] of their life partner and the dramatic change in their life’s trajectory because of this. In each case my clients were in early middle age with teenage children. Their predominant perceived loss was the negligently caused loss of their loving partner and the fundamental change in their life’s course that would follow.
In contrast, the Law, when assessing compensation confined (it may be said distorted), the loss of such partner into 2 aspects:
• an evaluation of the replaceable services the deceased wife would have provided, essentially as unpaid child care worker and domestic servant.
• Insofar as my clients grief and suffering, the extent such suffering passes into the pathological and so can be labelled (at least according to traditional legal theory) a diagnosable psychiatric ‘injury’ (most commonly depression, anxiety or in some cases, post-traumatic stress disorder).
No compensation is paid for the ‘core’ [most important] loss they have (and other comparable claimants suffer) experienced in the loss of their life-partner (or parent), due to negligent medical care.
Whilst I understand the policy arguments for limiting recovery in psychological/emotional distress cases, the disconnect between the law and “reality” was highlighted by the totally independent incredulity expressed by each of these clients during this process seeking to negotiate resolution of their claims.