On Thursday 11 January 2024, the long-awaited landmark judgment from the Supreme Court dealing with secondary victim claims in medical negligence was handed down. For many years, uncertainty had ruled this challenging area, finally culminating in three matters being heard together at the Supreme Court.
The facts of the cases being considered, Paul, Polmear and Purchase, all revolved around alleged medical negligence. There was a suspected breach of duty of care by a clinician who missed a serious medical condition. Some time later, the condition developed and resulted in all three individuals dying avoidably. Tragically the methods of their deaths were most distressing and were witnessed by a loved one.
In Paul, there was a 14-month period between the alleged negligence of the doctor, and his death. Mr Paul’s two young children were present at the time of the fatal heart attack and suffered psychiatric injury. In Polmear, Esmee, seven years old, collapsed at school 7 months after the alleged negligent medical care. Her father and mother attended and desperately tried unsuccessfully to resuscitate her, both suffering post-traumatic stress. In Purchase, Evelyn Purchase died three days after an alleged negligent GP appointment. Her mother found Evelyn dead at home, in most distressing circumstances, suffering post-traumatic stress disorder.
In all three cases, it was alleged that the deaths had been caused by incorrect medical treatment. A claim was brought on behalf of the estate and dependents, but a second claim was brought in each matter for psychiatric injury caused to the loved ones, or a secondary victim claim.
The defendant in all three claims sought to have the claims struck out on prospects of success.
For a secondary victim claim to be successful, there are long established control mechanisms which must be satisfied:
1. A marital or parental relationship between the secondary victim and primary victim;
2. The secondary victim suffers a sudden and unexpected shock to their 'nervous system';
3. The secondary victim was present at the scene of the 'accident' or was in the immediate vicinity and witnessed the aftermath;
4. The secondary victim suffered that injury due to witnessing the death, or extreme danger to or injury to the primary victim;
5. Physical and temporal proximity to the event and a close bond of love and affection.
A typical example would be if a parent witnessed their child being hit by a car in traumatic circumstances, and thereafter the parent suffered a psychiatric injury. Everything happens at the same time – the parent witnesses the negligence of the driver, the accident taking place in real time and the injury or threat of injury in the immediate aftermath.
The issue in these appeals was whether this could apply to medical negligence claims. By their very nature, often there is a gap between a medical mistake, and an injury being suffered. In some cases, this could be years.
The Supreme Court found that they could not draw an analogy between a case involving accidents, and cases where the secondary victim witnesses death or serious injury caused by an untreated disease. It was found that accidents are discrete events, and it is clear whether someone was present. However, in medical negligence claims there is no event.
They also considered that the secondary victim would not have any fear for their own safety because there was no accident.
The Supreme Court considered medical professions duty of care and scope of that duty. They considered that whilst doctors have a duty to their patients, doctors do not owe a duty to protect the patient’s family from risk of illness by witnessing death or serious injury, which should have been prevented. The court makes comment that it is not in the appetite of society today to extend a doctors’ duty in this way.
By a majority of six to one, the appeals were dismissed.
The effect of this decision is to effectively bar all secondary victim claims in medical negligence matters.
Secondary victim claims are not of significant value. Compensation is usually limited to a modest award for pain suffering and loss of amenity, and a claim for psychiatric treatment to try to help with recovery and to enable the injured person to move forward with their life. There is very little support available in the NHS for mental health services, and for many bereaved families, these modest awards were a lifeline.
Many claims around England and Wales will have been in limbo for some time pending the outcome of these appeals. The decision is catastrophic for them. This week, countless families will have been contacted by their solicitors to be told their claim has no prospects of success.
It will be very difficult for families to understand the distinction between being able to claim when you witness the death of a loved one in an accident caused by another person’s negligence, and not being able to bring a claim when you witness the death of a loved one caused by a doctor’s negligent care.
The judgment has been a shock to the legal profession. It’s disappointing that claims are precluded to those who have been harmed by witnessing horrifying, sudden events like the death of a loved one when that event is deemed to have been entirely avoidable in clinical negligence simply on the basis that very often, the horrific event is separated in time from the original negligence.
Olivia Boschat is a medical negligence solicitor at Bolt Burdon Kemp
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