(the future Viscount Hailsham L.C. In 1968 Quintin Hogg Q.C. 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. The National Data Guardian (NDG), Dame Caldicott, has published the results of her consultation on the Caldicott principles. Having considered the consultation responses the NDG has decided to: Each month our Health team will update you on recent key developments, and look ahead to what’s coming up in your sector. Secondary victims in medical negligence; Secondary victims in medical negligence October 15, 2016. None of the above anomalies and illogicalities exists if the analysis contended for by the defendant in this case is accepted, namely that proximity between the defendant and the secondary victim must be assessed at the time of the commission of the tort against the primary victim. The coroner’s primary duty is to decide how somebody came about his or her death. This month, you’ll hear from Esther in health commercial, Louise in health advisory, and Monia in health litigation. Ultimately, the court pinpointed the relevant point in time as when the negligence occurred, which, in this case, began when RE’s body remained in the birth canal. 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. A secondary victim has a whole separate set of requirements to discharge, as set out below. Found in: PI & Clinical Negligence. Secondary victim refers to someone who witnesses a traumatic event, such as the death of a loved one, and is psychologically harmed by the experience. Well here’s another one. Having allowed the claimants’ appeal on the narrow ground that, on the face of the claimants’ pleaded case, it was arguable that no tort had been committed prior to January 2014, the judge went on to consider what the position was if the defendant’s negligent failure of diagnosis had given rise to actionable damage at the time. Public sectors bodies within the scope of the Regulations include the NHS, as well as local authorities, maintained and academy schools, fire authorities, the civil service and the police. Surely each has a distinct cause of action independent of the others. ( Log Out / The only issue was whether the event was sufficiently sudden, shocking and objectively horrifying. 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 … Secondary victims of clinical negligence Background. The decision in Taylor v Novo should have bound the judge to hold that to be the moment at which the proximity test needed to be satisfied, but could not be. It is also difficult to see why, in principle, successive secondary victims could not succeed if each witnessed a different sufficiently horrifying event caused by the defendant’s tortious act. Nevertheless, there is likely to be a perception that it ‘opens the doors’ to secondary victim claims. 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. He was then “worse off” than he would have been but for the defendant’s negligence. In deciding that it was, the court highlighted the following factors: Therefore, damages for psychiatric injury were recovered by both the mother and grandmother. 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. Particular consideration should be given to whether the claimant witnessed the event that led to the primary victim’s injury (Wild -v- Southend Hospital NHS Trust 2014); whether the event is exceptional in nature, akin to witnessing an accident (Brock -v- Northampton General Hospital NHS Trust and another 2014); and whether there is a seamless single horrifying event (Shorter -v- Surrey and Sussex Healthcare NHS Trust 2015).In conclusion, whilst the decision in RE is significant and provides a degree of clarification, its scope is limited and it will remain difficult for purported secondary victims of clinical negligence to overcome the strict control mechanisms. This was therefore plainly a two event case. Her action failed; there had been two distinct events, (a) the sustaining of injury in the initial accident, and (b) the subsequent pulmonary emboli which caused her death. His reason for so doing was that, for the purposes of the strike out application, he had to proceed on the factual basis most favourable to the claimants, which was that Mr Paul had suffered no damage prior to the moment of his heart attack, which was itself therefore the “scene of the tort”; in other words this was arguably not a “two event” case. Case Note on Paul & Anr v … Maintained • . Home > News > Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. This intent is expressed in a report, ‘Integrating care: Next steps to building strong and effective integrated care systems across England’ developed by NHSE/I as a result of discussions with ‘the NHS and its partners’ over the last year and is accompanied by four consultation questions. Archive • 15.06.2020 • . In detail: Most patients who bring claims in medical negligence are primary victims – ie the health care provider has negligently breached the duty of care that was owed to them as an individual patient. Ex parte Blackburn (No.2)  2 QB 150. We hope you find this of interest. The recent case of RE & others -v- Calderdale and Huddersfield NHS FT  EWHC 824 (QB) provides some guidance on the exceptional circumstances in which a secondary victim claim may succeed in a clinical negligence context. The deceased, who suffered from ischaemic heart disease and occlusive coronary artery atherosclerosis, had been admitted to the defendant’s hospital in November 2012 and discharged without appropriate cardiac investigations being undertaken. on the ground that the claimants had no real prospect of succeeding. Proximity is a familiar legal concept in the law of negligence generally. Mr Paul suffered damage caused by the defendant’s assumed negligence, at the latest, on the date when if correctly diagnosed he would have undergone successful treatment for his coronary artery disease. It follows that reference to passages in the speeches in those cases to “proximity to the accident” or “proximity to the event” tells us nothing about what the answer should be where the qualifying event relied upon by the secondary victim post-dates the “accident” or commission of the tort. ), writing in Punch magazine, described a decision of the Court of Appeal as “a strange example of the blindness which sometimes descends on the best of judges”. In addition to this, under paragraph 7, schedule 5 of the Coroners and Justice Act 2009, the coroner also has an ancillary duty to report about deaths with a view to preventing future deaths. The reality is that the circumstances of this case will rarely arise as family members are not usually witness to the ‘event’ that leads to the primary victim’s injury. It describes the relationship between parties which is necessary in order to found a duty of care owed by one to the other, i.e. If, instead, they are witness to the immediate aftermath, it becomes a question of whether there has been a ‘seamless tale’ which can be classed as a single horrifying event (as held in North Glamorgan NHS Trust -v- Walters 2002), rather than a process of gradual realisation. 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.. The “event” to which the claimant needed to prove proximity was (a), rather than (b). ( Log Out / Presumably none of them could succeed. 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. 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. Change ), You are commenting using your Google account. With a team of over 200 lawyers and national coverage, we are one of the leading firms providing legal advice and support to the NHS and independent healthcare organisations. Secondary victim claims were brought by her mother and grandmother, who were present throughout the delivery. You can also access our webinar resources which are designed specifically for our health clients - covering topics that may affect you. Master Cook confirmed that secondary victim claims in cases of Clinical Negligence require proximity to the “relevant event”, not simply proximity to the final consequence of the negligence. However it does not appear from the report that the particulars of claim did so aver, as opposed to alleging that Mr Paul’s collapse was the “first manifestation of the Defendant’s breach of duty”. He opined that the answer was that the claimants could still succeed because the qualifying “event” (which was the point at which proximity needed to be established) would still be the collapse in 2014, and not the damage which completed Mr Paul’s cause of action, because the relevant “event” only occurred when the same became “manifest” or “evident.” He therefore distinguished Taylor v Novo on the ground that in that case, unlike the present, there had been an “evident“ event (the collapse of the shelving on to Mrs Taylor) at the scene of the tort, whereas in the present case there had not. The decision of the Court of Appeal in Taylor and another v A Novo (UK) Ltd EWCA Civ 194 was binding upon the judge. Our expertise and experience mean that we understand the issues you face and the clear and practical advice that you require, especially as services and systems become more integrated. There are less than a handful of reported successful secondary victim claims as a result of clinical negligence. Two daughters witnessed their father’s death from a heart attack in January 2014. Her daughter, who suffered psychiatric injury as a result of witnessing the death, sued as a secondary victim. While it may be true that there should be limitations on claims as shocking events can affect a very wide number of potential claimants, the regime for secondary victims as it stands is ar… The child begins to suffer alarming and distressing fits some years later. It is of particular relevance that RE’s condition on birth was a sudden and unexpected event, for which the claimants had no prior ‘conditioning’ or warning. This blog does not offer legal advice and should not be used as a substitute for legal advice. “What is required in order to found liability is something which is exceptional in nature” (Liverpool Women’s Hospital NHS Foundation Trust v Ronayne … Nor is it easy to understand, for the purpose of distinguishing Taylor v Novo, the principled distinction between injury which is “manifest” or “evident”, (presumably to the naked eye), and one which is visible only via an angiogram or EEG or some other form of scan. RE suffered an acute profound hypoxic ischaemic insult immediately prior to and following her delivery. As Lord Dyson MR stated, at . The Regulations impose a cap of £95,000 (the cap) on exit payments in the public sector. Historically, it has been very difficult for family members to pursue and prove a psychiatric injury claim if they have witnessed medical negligence. However, a recent Court of Appeal decision has provided some welcome clarity and guidance as to when a About 3 weeks later she collapsed and died as a result of pulmonary emboli caused by her injuries suffered in the accident. The case concerned AG, a 68 year-old woman, and her capacity to make decisions pertaining to various issues. In a medical perspective this would be a patient harmed by their medical treatment. 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. We act for more than 100 NHS bodies and are on all of the national framework agreements – NHS SBS, NHS CPC, HealthTrust Europe, NHS Resolution, NHS Commercial Alliance and CCS. 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 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  1 AC 410 and Alcock v Chief Constable of South Yorkshire Police  AC 310. The dispute between the parties in the present case was as to the point in time at which proximity in fact needed to be established. 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. 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. However, the issue of what is the relevant occasion for the existence of proximity in fact in a “two event” case had been decided by the Court of Appeal, in Taylor v A.Novo (UK) Ltd. For nearly 30 years, the law has sought to constrain the ability of secondary victims – those who suffer psychiatric injury not by being directly involved in an incident but by witnessing (or fearing) injury to a primary victim – to make personal injury claims for themselves. It is trite law that damage sufficient to complete the tort may occur without the victim being aware of the same (Cartledge v Jopling); it would seem to follow that “manifestation” of the defendant’s breach of duty is not a relevant occurrence, unless the word is intended to describe the point at which damage has been suffered. 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  EWHC 1415 was wrongly decided. Enter your email address to follow this blog and receive notifications of new posts by email. The decision in RE should not come as a surprise to those familiar with the similar case of Tredget -v- Bexley Health Authority 1994, in which both parents were awarded damages for nervous shock after witnessing their son’s traumatic birth and death two days later. The issue does not arise where the qualifying event (injury to or death of the primary victim) is synchronous with the commission of the tort, as will be the position in most accidental injury cases. As a matter of policy the law insists on control mechanisms in order to limit the number of potential claimants who were not the primary victims of tortious conduct. James Marwick. As part of the proceedings, the parties jointly instructed a psychiatric expert to assess AG’s capacity. 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. This may be termed “proximity in law”. Clinical Negligence and the Secondary Victim – A call to Defendants to be prepared United Kingdom 24.06.2020 The case of Paul v Royal Wolverhampton NHS Trust finds that loved ones of a primary victim can bring a successful secondary victim claim, over a year after the period of alleged clinical negligence. Had that approach been adopted the judge should surely have concluded that the claims were bound to fail. Please see the previous post “Wild”for a recap of the law. It was held that the event was not exceptional, sudden or objectively horrifying; reinforcing the strict control mechanisms set out in Alcock -v- Chief Constable of South Yorkshire Police 1992. 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)  UKSC 46, Michelle Leach v North East Ambulance Service NHS Foundation Trust  EWHC 2914 (QB). 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. There are less than a handful of reported successful secondary victim claims as a result of clinical... Decision. But if such be the case Mr Paul clearly had suffered damage due to the defendant’s breach of duty before his collapse. In fact, as appears from the judgment of Master Cook, it does not seem to be the case that Mr Paul’s collapse in 2014 was the first “manifestation” on any view.  It is a moot point whether the cause of action arose when Mr Paul should have been, but was not, advised of his disease and the need for remedial treatment, or on the date when, if correctly advised, he would have undergone the successful treatment. It is also difficult to see why, in principle, successive secondary victims could not succeed if each witnessed a different sufficiently horrifying event caused by the defendant’s tortious act. 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. Essentially, only the patient will qualify as a primary victim. Kate Kennell discusses 2 recent cases on Secondary Victims whilst reviewing this complex area and its relevance to Clinical Negligence claims generally. This report examines psychiatric damage claims for secondary victims, who face restrictive controls which have limited the amount of meritorious claims significantly. Brexit and public procurement: do any major changes come into effect on 1 January 2021 once the transition period expires? True it of course is, that on a strike out application under CPR 3.4(2)(a) the court is limited to considering whether the statement of case discloses reasonable grounds for bringing the claim. In Paul v The Royal Wolverhampton NHS Trust  EWHC 1415 (QB) Chamberlain J allowed the claimants’ appeal from the order of Master Cook  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. Of comments even killed by another ’ s perception of a psychiatric injury claim if have. Parties that the secondary victim claims arising out of clinical negligence injury as a result of witnessing death. The cap ) on exit payments in the law of negligence generally others not are less than handful... 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