8th February 2022 ❘ Legal News and Commentary

‘Secondary Victims’ Medical Negligence Test Cases

‘Secondary Victims’ Medical Negligence Test Cases… A medical negligence case can be raised against a health care professional if something has gone wrong and harm has been brought to the person unnecessarily. But what about someone such as a family member who has witnessed the distress, such as the death of a loved on caused by negligence and as a result has suffered a psychological injury despite not being the primary victim of the case i.e. the negligently treated patient? Would they be able to claim compensation for psychiatric injury as secondary victims? The answer is, it depends.

Although a claim can be brought, it must satisfy a number of criteria, often considered to be “control mechanisms” to limit the number of claims that can be successfully brought to those the most deserving. The criteria include a requirement that there be a strong bond of love and affection between the primary and secondary victims such as a parent and child. and that the secondary victim has come across the ‘immediate aftermath’ of the event meaning they were either at the scene or arrived at the scene very shortly afterwards. If there is too big of a gap in time or space between the negligent event and the secondary victim witnessing it’s consequences then the case will fail.

The rigidity of this proximity test can destroy cases where the interests of justice may suggest a claim should be allowed. In the context of clinical negligence it is not unusual for the shocking consequences of the negligent act to follow some time after the negligence, such is the case, for example, where there has been a delayed diagnosis of cancer which leads to a patient’s death. This separation in time between the negligence and the awful consequences will usually prevent a traumatised relative from successfully claiming for the very real impact the negligence has had on their mental health.

The Court of Appeal recently considered three clinical negligence cases which all turned on the question of whether liability could be established where there was a delay between the negligence and the death of the primary victim, the patient. It was clear that all other criteria for establishing a claim were satisfied, the problem was the delay in time between the negligence and the deaths. Unfortunately, for the Claimants the Court of Appeal was clear that it was bound by the earlier decision which required proximity of time and space which was lacking in these cases. However, it was clear that the Court of Appeal struggled with the logic of this. Sir Geoffrey Vos, one of the appeal judges and Master of the Rolls left the door open for likely appeals in these cases, suggesting that it is for the Supreme Court to make a decision as to whether it is time to depart from the rigid requirements of proximity.

Our Partner and Medical Negligence solicitor Michelle Armstrong believes:

“Whilst there is a need to avoid opening the floodgates for any bystander to be able to bring a claim, on too many occasions, people genuinely harmed by witnessing the traumatic effects of negligence on their loved ones, have been unable to be compensated. I welcome this opportunity for the Supreme Court to re-consider the extent to which proximity of time between negligence and harm is relevant in these traumatic cases.”

Michelle Armstrong is a Partner and Medical Negligence specialist. You can contact Michelle and the rest of our Medical Negligence team on 0191 300 1833 and hello@burnetts.co.uk