On 11 January 2024, the Supreme Court issued their judgement dealing with the question of secondary victim claims in medical negligence cases. Common law has long allowed for those who suffer psychiatric injuries, through witnessing a horrific event (or immediate aftermath) causing the injury or death of a loved one, to bring a claim for personal injury, providing they meet certain “close proximity” criteria. In this earlier blog post we outlined this criteria and the difference between primary and secondary victims.
In the combined appeals of Paul, Polmear and Purchase, the Supreme Court considered whether these cases can or should be extended to claims where the injury has been caused by witnessing the death or injury of a relative, not in an accident, but from a medical condition which the defender has negligently failed to diagnose and treat.
Facts of the cases
The three cases before the court shared common central features. In each case it was accepted that medical negligence, in failing to diagnose and treat a life-threatening condition, had led to the death of a close relative of each of the claimants. The claimants either witnessed or arrived in the immediate aftermath of the death of their close relatives. In each case the claimants were seeking damages as a result of their psychiatric injury as ‘secondary victims’.
Paul
In January 2014, whilst out shopping with his two young daughters, Mr Paul suffered a cardiac arrest. An ambulance was called and Mr Paul was subsequently pronounced dead in the ambulance on arrival at hospital.
It was accepted by the court that Mr Paul’s heart attack was caused by negligence. 14 months prior to his death, Mr Paul attended the defendant’s hospital with acute coronary symptoms. It was held that during his time in hospital Mr Paul should have received a coronary angiography. In negligently failing to perform this procedure, the hospital failed to detect significant, but treatable, coronary disease, which led to the subsequent heart attack and death of Mr Paul 14 months later.
Claims were brought by Mr Paul’s daughters for damages for psychiatric illness caused by witnessing the death of their father.
Polmear
On 1 July 2015, Esmee Polmear, then aged 7, collapsed and died in the presence of her parents at her school. Her father attempted resuscitation, however efforts to revive her were unsuccessful.
Esmee had been seen by both her GP and at hospital following unexplained episodes where she could not breath properly and appeared blue. Esmee’s paediatrician negligently concluded her symptoms were as a result of exertion, failing to diagnose the true cause: pulmonary veno-occlusive disease. It was accepted that the condition should have been diagnosed by mid-January 2015.
In witnessing her death, both parents were claiming damages for post-traumatic stress disorder and depression as a result of witnessing the death of their daughter.
Purchase
On 07 April 2013, Evelyn Purchase died, aged 20, at home in her bed from severe pneumonia. Three days earlier Evelyn had attended an out-of-hours clinic with her mother at her local hospital. The doctor who examined her failed to diagnose her condition and sent her home with anti-depressants and antibiotics.
On the evening before her death, Evelyn’s mother had been attending an event with her youngest daughter. They arrived back home at 4.50am, finding Evylen deceased in her bed.
Evelyn’s mother realised her daughter had phoned her and left a voicemail at 4.40am. The voicemail was Evelyn’s dying breaths. The call ended 5 minutes before Evelyn’s mother arrived home.
As a result, Evelyn’s mother developed post-traumatic stress disorder and severe chronic anxiety and depression, for which she was claiming damages.
Court of Appeal
The cases were conjoined at the Court of Appeal, who dismissed the appeals, as they were bound by a previous decision (in Novo). However, the presiding judge Sir Geoffrey Vos, supported by Underhill LJ, suggested that if free from precedent, they would likely have decided the case in favour of the appellants. The Court of Appeal granted permission for the case to be appealed to the Supreme Court.
Supreme Court case
The key issue
The key issue to be decided by the Supreme Court was whether a doctor, by providing medical treatment to a patient, owes not only a duty to protect their patient from harm but also a duty to the close members of that patient’s family to protect them against the risk of injury they might suffer, from the experience of witnessing the death or injury of that person from an illness caused by the doctor’s negligence.
Position put forward by parties
The claimants put forward two propositions to the court. Counsel in Polmear and Purchase argued that if you consider the relevant event to be the death of the primary victim, then all the other criteria in Alcock can be satisfied. Counsel in Paul put forward a second proposition, that the relevant event was the first manifestation of the injury to the primary victim. When applied to the facts in Paul this works, as the first sign of the cardiac injury wasn’t until the heart attack he suffered 14 months after the negligence. However, if the same principle was applied in Polmear and Purchase the first sign of the injury would be at an earlier time to the relative witnessing the death, which has caused their psychiatric injury.
The respondents argued that liability for secondary victim claims is confined to cases where the primary victim is injured or killed in an accident. Their position was that there requires to be an event external to the primary victim, for example a road traffic collision. The respondents argued that medical negligence cases rarely involve an “accident” and that therefore there can be no liability to secondary victims in these cases.
The decision of the Supreme court
The Supreme Court’s decision centred on the duty of care which a medical practitioner has to their patients. The Court determined that despite having sympathy for the claimants and the position they found themselves, the test for secondary victims was not met and the claims were therefore dismissed.
The court, in considering whether an accident was legally significant, held that determining whether someone was present at the scene of an accident and directly perceived this, is easy. By contrast however, in medical negligence cases there is often no comparable event to an accident, as the symptoms of disease or injury may develop over days, months or years. Accordingly, they held that no reasonable comparison can be drawn between these two categories of cases and agreed with the Court of Appeal in Novo that to extend the scope “would give rise to unacceptable and unfair differences in treatment between different categories of claimant”.
In their reasoning, the Court were unable to accept that the responsibilities of a medical practitioner extended to protecting members of the patient’s close family from exposure to the traumatic event of witnessing the death, manifestation of disease or injury in their relative. They held that a doctor cannot reasonably be expected when treating a patient to have in contemplation the effects this might have on a patient’s family through witnessing the effects of a disease, which the doctor ought to have diagnosed and treated. To do so would be to impose a responsibility on hospitals and doctors which goes beyond what is reasonably regarded as the nature and scope of their role.
What this means now for secondary victim claims in medical negligence cases
Whilst the case focused on discussion of English common law, Lord Carloway, Lord President, stated in his judgement: “had Scots law been applied, the same result in relation to the present claimants would have been reached”. The decision therefore has impact in Scotland as well as England and Wales.
The impact of the decision on claimant’s can already be seen through articles such as this BBC News Article about Robert Miller. Following the decision by the court Mr Miller will no longer be entitled to claim for the psychiatric injuries he has suffered as a result of the admitted failings which led to his daughter’s death.
The circumstances in which secondary victim claims in clinical negligence cases are likely to succeed are now very limited. However, the question of whether a small number of cases in medical negligence involving an accident might give rise to liability remains to be answered. For instance, a case where: a doctor injects a patient with the wrong drug; surgical equipment is left inside a person after an operation; relatives witness a fall from a hoist or hospital bed; or repeated erroneous application of forceps during a traumatic delivery. This was not however something the court was prepared to comment on this time, as these are hypothetical situations which did not arise in the 3 cases before them.
Given the narrow scope of these types of cases, it is likely that it will be a while before we see such a case being considered by the court. However, the authors will be watching this space closely and for the further impacts on pursuer’s following the decision of the Supreme Court.