Explaining the recent legal decision on secondary victim claims in medical negligence
The recent Supreme Court decision in Paul v Wolverhampton NHS Foundation Trust has significantly narrowed the scope of secondary victim claims in medical negligence cases, leaving many claimants with a difficult legal landscape.
While understanding the legal reasoning is crucial, it's equally important to address the potential unfairness this decision carries for individuals seeking compensation for traumatic experiences. Ultimately, as the law currently stands, it will be very difficult for secondary victims to bring a successful claim.
What is a secondary victim?
A secondary psychiatric victim is a claimant who has suffered a psychiatric injury after witnessing the horrifying sight of the death or injury of a close family member or the immediate aftermath.
Background to Paul
In this decision, the Supreme Court considered three cases alleged in medical negligence. The claimants alleged to have suffered as secondary victims by witnessing or coming upon the immediate aftermath of a relative's death allegedly caused by medical negligence.
Mr. Paul's daughters witnessed their father suffer a heart attack and die after being discharged from the hospital with an undiagnosed medical condition (coronary artery disease).
Mr and Mrs Polmear witnessed their 7-year-old daughter die. It was argued that the hospital failed to diagnose and treat their daughter's heart condition (pulmonary veno-occlusive disease), which ultimately resulted in her death.
Ms Purchase came upon her daughter, a few minutes after her death from pneumonia. It was argued that the GP had failed to treat her daughter's symptoms when she presented with symptoms of weakness, dizziness and difficulty breathing.
The Supreme Court's decision
The Supreme Court held that medical practitioners could not be held liable in law for injury caused to a patient's relative. The crux of the decision turned on the nature and scope of a medical practitioner's role and responsibilities. The Supreme Court held that medical practitioners do not owe a duty of care to a patient's relatives to protect them from exposure to the traumatic experience of witnessing death or manifestation of disease or injury to their relative, since 'to impose such a responsibility… would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role'
The Supreme Court made a clear distinction between accident and disease cases. It emphasised that for a claimant to succeed in a secondary victim claim, they must witness an accident or its immediate aftermath. The Court said that this is distinct from witnessing the death or medical crisis of a patient caused by a disease, which does not qualify. This rejects many scenarios where witnessing the prolonged suffering of a loved one due to medical negligence can be equally distressing.
Unfairness
While the ruling aims to establish clarity on who can claim for psychiatric harm due to witnessing medical negligence, it raises questions about fairness and accessibility to justice for many people affected.
The Court clarified that a medical practitioner's duty of care does not automatically extend to protecting relatives from witnessing harm. However, witnessing a loved one sustain an injury or die because of medical negligence can be deeply traumatic, regardless of the technical definition of an "accident."
Neonatal deaths and birth injuries witnessed by parents can have a profound psychological impact, which appears to have been overlooked by the current framework. Having represented several claimants whose lives have been devastated by witnessing such horrific events, it is extremely disappointing that their access justice has been made very difficult, if not impossible.
The Supreme Court's decision does not consider that childbirth is a big life event concerning all members of a family present at the birth. It is not exclusive to mother and child. For example, a father I currently represent in a secondary victim claim following having witnessed the horrific circumstances of his child's birth in which the child has suffered a brain injury explained:
'It is particularly unjust that the legal definition of an injured party cannot include someone so directly affected by an incident of medical negligence such as childbirth, which is a physical, emotional and social event in which the primary claimant has no agency.
'Trusting a medical team with the responsibility for this family life event is by definition the nature and scope of a Trust's role, evidenced by the fact they provide things like psychiatric support to parents and provide a level of safeguarding and social care, not just some nitrous oxide and a pair of forceps.'
Moving forward
While the Paul decision provides legal clarity, it also highlights the potential unfairness for individuals impacted by medical negligence. Ongoing discussions and potential legislative changes might be necessary to address the emotional and psychological realities of witnessing medical harm, particularly for vulnerable groups such as parents of newborns.