August EWJ 24 - Flipbook - Page 91
Secondary Victim Claims and Medical
Negligence - What is the Future After Paul? (Part 2)
This post is the second in a two-parter covering the landmark Supreme Court case of Paul and
another (Appelants) v Royal Wolverhampton NHS Trust (Respondent) (2024) (referred to as
“Paul” in this post). As discussed in part one, the need for a Paul “accident” raises particular
issues for secondary victim claims arising from medical negligence. However, do the court’s
comments on duty of care in Paul make such claims even less likely to succeed?
Secondary victims are those who have suffered
psychological injury from perceiving injury or the risk
of injury to a loved one, who is known as the primary
victim.
in Paul on the basis that each claim arose from a
“medical crisis” rather than an “accident”. Although
that alone was sufficient to defeat the claims, the
Supreme Court nevertheless went on to consider the
scope of a medical professional’s duty of care and
whether this could extend to a patient’s loved ones.
The requirements to succeed in a secondary victim
claim are not easily met. Public policy considerations
about opening the floodgates to such claims have mitigated against previous attempts to extend the law, arguably at the expense of victims of catastrophic
psychological injury. Notably in the case of Alcock v
Chief Constable of South Yorkshire (1991) the House
of Lords found that loved ones of people killed and injured in the 1989 Hillsborough Disaster were unable
to claim for psychological injury caused by witnessing
the tragedy unfold on television.
Lord Leggatt and Lady Rose prepared the leading
judgement. In their analysis they considered the particular qualities of the doctor-patient relationship, and
the factual questions that arise about determining the
extent of control that a doctor may have over risk of
injury to a patient’s family members. They concluded
as follows (paragraph 138):
“We are not able to accept that the responsibilities of a
medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the
death or manifestation of disease or injury in their relative. To
impose such a responsibility on hospitals and doctors would
go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”
Notwithstanding the court’s tight controls on these
types of claims, prior to Paul the case law did not appear to discriminate based on the setting or context
in which the primary victim was injured. I have summarised the court’s current criteria for such claims to
succeed below, indicating in bold the changes recently
arising from Paul. You will note that these criteria appear to apply equally to primary victims injured in
road traffic accidents, accidents at work, public places,
and in medical settings.
Comment
Are the court’s comments an outright block to
secondary victims in a medical negligence setting in
future? This author would submit probably not, although they do raise additional hurdles to such claims
succeeding.
1. The harm (or risk of harm) to the primary victim
must have been caused by an accident, which is an
unexpected and unintended event which causes injury (or a risk of injury) by violent external means.
Should defendants seek to argue that a patient’s loved
ones are, following this judgement, outside the duty of
care of that patient’s doctors, it should be pointed out
that the court’s comments were made in the context of
each of the family members in Paul witnessing either
a “medical crisis” or a “manifestation of disease or injury” (specifically a heart attack, pulmonary veno-occlusive disease and severe pneumonia), rather than an
“accident”. Therefore, they should be read as the
court emphasising the necessity for an “accident” in a
successful secondary victim claim, rather than ruling
out such a claim in a medical setting after an
“accident” has occurred.
2. The claimant must have been in close proximity to
the accident or its immediate aftermath (in time and
space).
3. The psychiatric injury must be caused to the
secondary victim by them seeing or hearing the relevant accident or its immediate aftermath through
their own unaided senses.
4. There must be a recognised psychiatric injury
suffered.
5. It must be reasonably foreseeable that a person of
“normal fortitude” or “ordinary phlegm” might suffer
psychiatric injury.
Furthermore, the court’s cultural and political
objections to extending a doctor’s duty of care to a patient’s loved ones do not apply so easily in “accident”
based cases. As indicated above, the Supreme Court
took the view it would be wrong to expect doctors to
protect their patients’ family members from the psychological effects of death and (to a lesser extent) medical problems, when these are unfortunate but
6. There must have been a close tie of love and
affection between the secondary victim and the
primary victim.
The court’s comments on medical practitioners’
duty of care
The Supreme Court found against all the claimants
EXPERT WITNESS JOURNAL
89
AUGUST 2024
