Secondary victims in medical negligence claims: a turning point

The Supreme Court has handed down a long-awaited judgment as to whether relatives can claim for psychiatric injury suffered as a result of their loved one being a primary victim of medical negligence. The appeals were dismissed by a majority of six to one.

Clarification for secondary victims in medical negligence claims

On 11^th  January 2024, the Supreme Court handed down their judgment in the cases of Paul and another v Royal Wolverhampton NHS Trust, Polmear and another v Royal Cornwall NHS Trust, and Purchase v Ahmed.

The joint appeals, which had initially been struck out by the Court of Appeal, were dismissed once more by a six-to-one majority, signalling the end of the road for the Claimants who had all suffered psychiatric injury from witnessing the death of a family member.

In all of these cases, family members claimed that the failure by the Defendant to diagnose the primary victim’s life-threatening condition resulted in them witnessing their subsequent death, causing psychiatric injury. For example, in Purchase v Ahmed, Evelyn Purchase died from severe pneumonia just three days after being examined by her GP (Ahmed) who failed to diagnose her condition. She was found unresponsive by her mother (the Claimant), who attempted resuscitation unsuccessfully. Ms Purchase died. Her mother claimed damages for PTSD, severe anxiety, and depression, stating that she was a secondary victim to her daughter’s (the primary victim) death which was caused by the Defendant’s negligence.

The Court of Appeal dismissed these secondary victim claims on the basis that the primary victim’s death was not caused by an ‘accident’ and secondly because the duty of care that medical professionals owe their patients does not extend to their close relatives.

Duty of care: where are we now?

A key consideration for the Judges was whether medical professionals owe a duty of care not only to their patients but also to their wider family. It was held that it would be particularly difficult to extend the duty of care to a patient’s close family as this would go beyond the scope of the medical professional’s role.

With the first element of any clinical negligence claim being the identification of a duty of care, the decision reached has effectively left family members formerly considered to be secondary victims, without a resolution for the harm they have suffered.

A secondary victim’s entitlement to compensation was also considered in terms of death/injury suffered as a result of accidents (to be distinguished from medical negligence). The Supreme Court took this opportunity to clarify the requirements for an entitlement to compensation:

1. A Claimant must be present at the scene of an accident, or in the immediate moments that follow;
2. A Claimant must witness the accident or the immediate moments that follow; and
3. A Claimant must have a close relationship of love and affection with the victim of the accident.

These requirements therefore prevent secondary victims from making a claim in a medical negligence context on two bases: firstly, a doctor does not owe a duty of care to them as a family member and secondly, a death from an undiagnosed disease (for example) will not be considered an accident for these purposes. The Court distinguished accidents from the events in the appeals, which were categorised as ‘medical crises’.

How does this judgment affect secondary victim claims?

This Supreme Court judgment means that relatives cannot claim compensation for witnessing the death or serious injury of a loved one where the death or injury was the result of negligent medical treatment.

This will be a disappointing outcome for many secondary victims who have suffered psychiatric harm in these circumstances.

The simplification and clarification of the law in this area are welcomed, however, the consequence of this highly anticipated judgment is such that Claimants are now left with virtually no options in terms of compensation for their suffering.

‘Accidents’ in a medical negligence context

It is possible for an ‘accident’ (defined in the judgment as an unexpected and unintended event causing injury, or risk thereof, by violent external means), to arise in a medical situation but the Supreme Court did not give any firm examples of what might constitute an accident. It is generally thought that there will be very few, if any, medical negligence cases that will meet this definition due to the ‘violent’ criteria.

Injuries to babies occurring due to difficulties during their delivery could, in some circumstances, be an example of where the ’accident’ criteria is met.

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