She cannot recover damages for the shock and illness that she suffered as a result of seeing her mother’s death three weeks after the accident. Accordingly if the particulars of claim had averred that Mr Paul had suffered no damage prior to his heart attack, the court would have been required to assume that this averment was true. on the ground that the claimants had no real prospect of succeeding. It would follow that the secondary victim who saw the accident could satisfy the criterion of proximity. The National Data Guardian (NDG), Dame Caldicott, has published the results of her consultation on the Caldicott principles. ( Log Out /  The defendant argued that the mother was a secondary victim since RE survived and the cause of RE’s permanent injuries was the negligent treatment following her birth. The claimants’ case was that this was the occurrence of the qualifying “event” (in the present case the collapse and death of their father); the defendant’s case was that it was the occasion of commission of the tort, which was when the primary victim first suffered actionable damage (this being on or soon after failure to diagnose or treat his vascular disease). Although the owner’s cause of action in contract arose when the work was negligently performed, his cause of action in tort did not arise until he drove the car off the cliff. clinical negligence context and, in particular, to the issue of whether it is fatal to a secondary victim claim if there is a delay between an initial tort (arising for example from a failure to diagnose or a failure to treat a patient) and a claimant’s subsequent experience of shock. The child begins to suffer alarming and distressing fits some years later. When determining the merits of any potential secondary victim claim, it is important not to overlook the recent string of unsuccessful cases and consider whether there are any similar features. It was agreed between the parties that the only issue was whether they could satisfy the criterion of “proximity”. A primary victim – someone who suffers psychiatric injury due to his or her own injury or the threat of injury – can claim on proof of the same and that it was caused by negligence: no more is needed. The recent case of RE & others -v- Calderdale and Huddersfield NHS FT [2017] EWHC 824 (QB) provides some guidance on the exceptional circumstances in which a secondary victim claim may succeed in a clinical negligence context. As part of the proceedings, the parties jointly instructed a psychiatric expert to assess AG’s capacity. After a year in which the COVID-19 pandemic has underlined the importance of collaborative working across health and care, 2021/22 look set to be the years in which NHS England/Improvement’s plans to formally secure Integrated Care System coverage nationwide crystallise through new legislation and guidance. It did not, therefore, arise in any of the House of Lords cases, McLoughlin, Alcock, Page v Smith, Frost v Chief Constable of South Yorkshire Police, in which the elements of secondary victim liability had been judicially defined. Change ), You are commenting using your Facebook account. This report examines psychiatric damage claims for secondary victims, who face restrictive controls which have limited the amount of meritorious claims significantly. RE suffered an acute profound hypoxic ischaemic insult immediately prior to and following her delivery. The principles of secondary victim claims apply to clinical negligence cases as they do to other accident cases, but the factual circumstances are often very different. Watch our quick round-up: Health InSight - December 2020, Next steps for integrated care systems, place-based partnerships and provider collaboratives – by April 2022, ‘Integrating care: Next steps to building strong and effective integrated care systems across England’, The risks of implementing mandatory COVID-19 vaccinations for NHS employees, Updated guidance from the Court of Protection on capacity assessments and reports, Revised chief coroners guidance on prevention of future deaths reports, The NHS People Plan: an overview for NHS HR and OD professionals, Watch our quick round-up: Health InSight - November 2020, RE’s condition on birth was a sudden and unexpected event and not a process of gradual realisation, there was no conditioning for what came or any warning that RE would be born lifeless and require resuscitation, this was not an event of the kind to be expected as ‘part and parcel’ of childbirth, both were present throughout the birth and witnessed the immediate aftermath, they had both suffered PTSD as a result of observing the events of RE’s birth. The only issue was whether the event was sufficiently sudden, shocking and objectively horrifying. Archive • 15.06.2020 • . Secondary victim claims were brought by her mother and grandmother, who were present throughout the delivery. Take, for example, the case of a young child who suffers brain damage as … In Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) Chamberlain J allowed the claimants’ appeal from the order of Master Cook [2019] EWHC 2893 (QB) striking out their claims for damages for psychiatric injury allegedly suffered when they witnessed the collapse of their father in the street following a fatal heart attack in January 2014. The Restriction of Public Sector Exit Payments Regulations 2020 (the Regulations) were made on 14 October 2020 and came into force on 04 November 2020. Take, for example, the case of a young child who suffers brain damage as a result of the defendant’s clinical negligence. 19th June 2017 | Joanne Gosney. The law on secondary victims, namely those people who were not injured themselves (commonly known as primary victims), but who observed a loved one sustaining injury and suffered psychiatric injury as a result, is governed by principles set down in the cases following the … The claimants, as secondary victims, had to satisfy the criteria for the imposition of liability formulated by the House of Lords in McLoughlin v O’Brian [1983] 1 AC 410 and Alcock v Chief Constable of South Yorkshire Police [1992] AC 310. A Step Forward for Secondary Victims of Clinical Negligence I have written previously (perhaps too often) about the difficult issue of secondary victim claims arising out of clinical negligence. The Caldicott principles set out how the NHS should handle confidential information about service users. If one of the family of the epileptic child above referred to happened to be a radiographer, he or she might equally have found the brain scan horrifying. A person who is injured or even killed by another’s negligence is a primary victim. Key points from the Court of Appeal judgment (which overturned the award of compensation to Mr Ronayne made by an experienced clinical negligence trial Judge) were: To establish a secondary victim claim it is necessary to establish that the relevant ‘shocking event’ was … Also, supposing medical evidence established that the child must have had an earlier, unwitnessed, fit. It may therefore typically arise in a clinical negligence action where there is negligent treatment resulting in a latent pathology, which manifests itself in the patient’s injury or death at a later time; alternatively (as alleged in the present case) a failure to diagnose and/or treat an existing condition, which failure eventually causes injury, or death. The case stresses the importance of parties and the court being able to identify that the fundamental principles of the MCA 2005 have been followed in expert reports, that proper steps have been taken to support P’s decision-making and engagement in the assessment, and that conclusions reached are adequately explained. Home > News > Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. There are less than a handful of reported successful secondary victim claims as a result of clinical negligence. These reports are known as prevention of future deaths reports (PFDs). The law around secondary victims of medical negligence is not straightforward, so it is important that you seek specialist advice. The criteria for bringing a secondary victim claim was set out following the Hillsborough disaster, when Primary victims were defined as those directly involved in the events that had caused life threatening injuries. Presumably none of them could succeed. Enter your email address to follow this blog and receive notifications of new posts by email. This may be termed “proximity in law”. The judge’s obiter dicta, if correct, would represent a significant extension to the scope of liability to secondary victims that has been recognised in any previous case. The scope for claiming nervous shock as a secondary victim in clinical negligence cases, in light of a recent Court of Appeal decision regarding injury sustained during childbirth. The claimants’ case was that coronary angiography should have been performed, which would have revealed significant coronary artery disease which could and would have been successfully treated by coronary revascularisation, and that had this taken place he would not have suffered the cardiac event in 2014. COVID 19 Vaccine – questions of safety and civil liability, Informed consent in children and young people, R (on the application of Maughan) (Appellant) v Her Majesty’s Senior Coroner for Oxfordshire (Respondent) [2020] UKSC 46, Michelle Leach v North East Ambulance Service NHS Foundation Trust [2020] EWHC 2914 (QB). Can all three successfully sue the defendant, or if not, why not? Nevertheless, Chamberlain J allowed the claimants’ appeal from the decision of Master Cook[3] striking out the claims on the ground that they were bound to fail. Likewise no problem would arise in a clinical negligence action where there is no evidence that the defendant’s negligence caused any injury or damage until the later fatal event.[2]. We hope you find this of interest. Change ), You are commenting using your Twitter account. In Ronayne, the claimant was refused damages for nervous shock after witnessing his wife on a ventilator, looking like ‘the michelin man’, following post-operative complications. The Regulations impose a cap of £95,000 (the cap) on exit payments in the public sector. On the claimants’ case, when he left hospital he had partially blocked coronary arteries, with consequent risk of cardiac failure, whereas had he been treated with due care, these blockages would have been wholly or partially eliminated. Found in: PI & Clinical Negligence. The test for whether someone is considered a secondary victim was set out in the wake of the Hillsborough disaster, and to be successful it must proved that they have: Historically, it has been very difficult for family members to pursue and prove a psychiatric injury claim if they have witnessed medical negligence. Secondary Victims – Medical Negligence The Court of Appeal case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne EWCA Civ 588 is the latest high profile decision in the area of secondary victims of nervous shock when losing a loved one in a medical negligence context. Secondary victim claims in clinical negligence actions In this article, Ronald Walker QC gives his thoughts on why he considers that the recent appeal case of Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 was wrongly decided. 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