Victims of medical negligence can claim compensation for psychiatric injury as well as their physical injuries.
However, what is less widely appreciated is that psychiatric injury claims are not just confined to the patient. The duty of care owed by doctors, hospitals and other suppliers of medical services extends to close relatives and friends of the patient.
While it is relatively common for patients to suffer psychological injury arising from medical negligence, claims by the close relatives and friends of patients (who lawyers refer to as “secondary victims”) are less frequent. These claims are also becoming increasingly difficult to sustain, so it is an area of clinical negligence practice that really calls for highly specialised legal advice.
One of the reasons why compensation claims made by secondary victims are difficult to pursue in a medical negligence context is that in order for them to succeed the secondary victim has to witness the “event” first-hand. Furthermore, medical staff are trained to reduce the impact of “bad news” and prepare relatives for what has occurred. These factors can be crucial, because the law only compensates secondary victims for “shock” caused by the “horrifying” events they have directly witnessed, rather than the coming to terms with the situation they are already aware of.
There have been many cases decided by the courts in recent years but by way of illustration take the case of Wild –v- Southend University Hospital. In this case the hospital accepted that as a result of their failure to deliver a baby early its death had been caused. When the baby was delivered stillborn the mother and father suffered psychiatric injury. The mother was a primary victim and the father was a secondary victim.
The judge dismissed the father’s claim for compensation on the basis that he had already been informed of baby’s death prior to the delivery and his psychiatric injury therefore arose as a result of his gradual realisation that the baby had previously died, rather than the shock experienced that the delivery itself.
This year (2015) has seen another case dealing with psychiatric injury to secondary victims in a medical negligence setting: Shorter –v- Surrey and Sussex Healthcare NHS Trust.
This claim was brought by the patient’s sister. The patient had suffered a misdiagnosed brain haemorrhage. When the mistake was discovered the hospital called the patient in. The sister, a nurse herself, saw the patient in obvious distress at the hospital. The patient was then transferred to a specialist unit and her sister visited her there when she was on a life support machine. Sadly the patient died.
As a result of these events the sister suffered a depressive disorder and sued the NHS trust. The trust admitted it was likely the patient would have survived if the haemorrhage had originally been correctly diagnosed. It also accepted that there was a close relationship between the patient and her sister. However, the trust denied there was the necessary proximity to a specific “shocking” event. It said that the sister’s realisation of the patient’s suffering had been gradual and mostly indirect. The judge agreed with the trust, highlighting the fact that there had been no physical proximity when the sister had initially been informed by telephone of the trust’s negligence, that when she had seen her sister in hospital the event could not be objectively described as “horrifying” and that when she saw the patient on life-support it was not a sudden unexpected shock.
The judge in that case conceded that clinical negligence cases create particularly difficult problems for secondary victims claiming compensation for psychological injury, especially in relation to the nature and timing of the “event” giving rise to the claim.
It is therefore clear that because these claims are so fact specific they require very careful consideration on a case by case basis.
Psychiatric illness also features in a new Bill to reform the law in England and Wales that has been introduced into the House of Commons.
The Negligence and Damages Bill is a Private Members’ Bill proposed by Labour MP for Middlesbrough, Andy McDonald.
If made law Mr McDonald’s Bill would extend the list of relationships which are accepted by the courts as having a sufficiently ‘close tie of love and affection’ for victims to claim compensation for psychiatric injury. It would also bring bereavement damages in line with Scotland where the level and eligibility is judged on individual merit.
If you wish to make a claim for compensation for psychiatric injury arising out of clinical negligence as either a patient or a close family member or friend then call our free legal helpline on 0800 975 8091. Alternatively drop us an e-mail with brief details of the case.