8 Jul 2024

Secondary Victims Claims Effectively Barred In Medical Negligence Cases

On January 11^th, 2024, the Supreme Court delivered a landmark judgment in the case of Paul v Royal Wolverhampton – a judgment which has set out a definitive approach for secondary victims claiming psychiatric harm in a clinical negligence context.

 

The ruling significantly impacts the ability of secondary victims (those who suffer psychiatric injury as a result of witnessing a loved one’s distressing death due to medical negligence) to claim compensation.

Here, we assess  the facts of the case, and the significance of its ruling.

 

Facts of the conjoined cases: Paul, Polmear and Purchase

The cases of Paul, Polmear and Purchase, which is collectively known as the “Paul case,” all involved victims who witnessed the death of a loved one, allegedly due to medical negligence.

These cases presented scenarios where the relatives of the deceased suffered psychiatric injuries and sought compensation for these injuries, and is broken down into:

• Paul: where Mr. Paul’s 2 young children witnessed their father die from a fatal heart attack 14 months after a doctor failed to diagnose and treat his disease
• Polmear: where a 7 year old child collapsed at school 7 months after alleged clinical negligence, and the parents, who unsuccessfully tried to resuscitate their child, both developed post-traumatic stress disorder (PTSD)
• And Purchase: where Ms. Purchase died 3 days after the alleged clinical negligence. This involved her mother finding her daughter lifeless on her bed and later discovered a missed call, which contained the sounds of her dying breaths. Ultimately, this led to the mother developing PTSD, severe chronic anxiety and depression

 

The significance of the judgment

Before this decision, there were no coherent legal principles governing secondary victim claims in medical negligence. In fact, the leading case in this area was Alcock v Chief Constable of South Yorkshire, which actually stemmed from the Hillsborough disaster, and whereby the general rule from Alcock was that a third party could not claim for psychiatric injury from witnessing another's death or serious injury unless the following criteria were met:

• A relationship of love and affection with the primary victim
• Witnessing the ‘immediate aftermath’ of the event
• Being of reasonable fortitude
• Or direct perception of the harm to the primary victim

 

In essence, secondary victims needed to witness an accident or its aftermath to claim, and an ‘accident’ in this context referred to an unintended and unexpected event caused by a violent external force, such as a road traffic accident.

In the Paul case, the claimants argued that the ability to claim compensation should extend to medical negligence cases where a loved one died due to a doctor’s negligence, which was the first time the Supreme Court addressed this issue, providing an opportunity to scrutinise and potentially extend the existing law.

And yet, despite expressing grave sympathy for the families, the Court dismissed all three secondary victim appeals, with their judgment effectively barring secondary victim claims in medical negligence cases - a disappointing outcome for claimants seeking justice.

 

Why was this the Courts’ judgement?

The Court examined two key issues:

1. The scope of a Doctor’s duty of care: whereby the Court found it unreasonable to extend a doctor's duty of care to family members, and argued that broadening the scope could lead to a flood of litigation from family members which would overextend the responsibilities of medical practitioners. Additionally, a change such as this could also impact decision-making during end-of-life care, as doctors might fear legal repercussions as a result
2. And the comparison between clinical negligence and personal injury cases: whereby the Court highlighted the difference between accident cases and medical negligence cases. This confirmed that in clinical negligence, there is often no discrete, sudden event comparable to an accident, and as a result, the variability in the onset and progression of symptoms or diseases makes it challenging to define an ‘event’ that could form the basis for a claim. What’s more, this variability also introduces legal uncertainty, further complicating the ability to claim overall

 

Implications for secondary victims

Currently, remedies for secondary victims are limited to those who are present at an accident, witness the accident and have a close tie of love and affection with the primary victim. However, In a hospital setting, it still remains unclear what constitutes an ‘accident’.

For example, in cases of stillbirth, a mother can claim as a primary victim, but it is uncertain whether the father would be entitled to make a claim despite experiencing the same traumatic event. This ruling also affects family members who witness their loved ones taking their lives after suffering from negligent mental health care, preventing them from seeking compensation.

The law, as clarified by the highest court, leaves little recourse for secondary victims in medical negligence cases without legislative intervention, and the rationale behind the judgment underscores policy concerns about certainty in decision-making and preventing undesirable behaviour from medical practitioners. However, it fails greatly in addressing the grievances of close family members adequately.

 

Life after clinical negligence

The Supreme Court's decision in Paul v Royal Wolverhampton is a significant ruling that clarifies the law regarding secondary victim claims in medical negligence cases, and whilst the judgment does bring clarity, it also highlights the limitations and inadequacies of the current legal framework in addressing the needs of secondary victims.

Moving forward, legislative reform will be necessary to provide fair and just remedies for those who suffer psychiatric harm due to witnessing the traumatic death of a loved one in a medical negligence context. But at least for now, there are those out there who believe that everyone who experiences the aftermath of clinical negligence, including secondary victims, deserve support too.

 

Why choose Speed Medical for clinical negligence cases?

Speed Medical stands out in the clinical negligence sector through its unwavering commitment to innovation and service excellence, and as the UK's leading independent medical reporting agency and rehabilitation provider, we offer a flexible and convenient service to clients, reducing administrative burdens for businesses.

Here’s why Speed Medical should be your go-to partner:

1. We have decades of expertise: with over 25 years of industry experience, we have built a strong reputation for delivering high-quality service with high quality experts.
2. We provide dedicated case handlers: each clinical negligence case is managed by a dedicated case handler, ensuring personalised and consistent communication from start to finish
3. Our case management is proactive: we always take a proactive approach to managing cases, providing regular updates and ensuring no aspect is overlooked
4. We have expert team: with a team boasting over 60 years of combined experience, we offer unparalleled expertise in handling complex clinical negligence cases
5. We offer financial flexibility: such as up to 36 months of deferred terms, and tailoring to your business needs thus easing financial constraints associated with clinical negligence  claims
6. Our onboarding is bespoke: this ensures each customer’s unique needs are met, including the recruitment of preferred experts, processes and of course building the relationship within our respective businesses.
7. We also offer direct expert contact: whereby clients can directly contact medical experts, fostering transparency and confidence in the process

But why is this so important?

Because for us here at Speed Medical, we want to offer a truly bespoke service dedicated to support the complexity of a clinical negligence claim and the suite of investigative stages.

But above all, we do it because we care, and are passionate about our customers, service, quality and delivery.

Partnering with Speed Medical adds real value through cost saving, quality and adaptability to meet individual customer requirements and expectations.

For more information, please visit www.speedmedical.com, contact our team via email at info@speedmedical.com or call us directly on 0330 094 8749.