The Supreme Court rules on Claims of Secondary Victims in Medical Negligence cases

A Supreme Court decision in the cases of Paul & Anor v Royal Wolverhampton NHS Trust and the connected case of Polmear & Anor v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed, after some considerable years of debate, it has clarified the question as to whether a person who witnesses the death or serious injury of a loved one related to serious harm or death due to medical negligence that could have been prevented by timely competent medical treatment, can claim to be a secondary victim and receive an award in compensation.

The Supreme Court not only settled the debate on whether secondary victim claims can be pursued when medical negligence is witnessed but also clarified the requirements needed to be satisfied by a secondary victim,

The authority on this point is Alcock v Chief Constable of South Yorkshire Police, where the Court established that to be successful a secondary claimant must:

• Have a close tie of love between the claimant and the primary victim;
• That the injury for which damages are sought arose from “sudden and unexpected shock to the Claimant’s nervous system”;
• Be present at the scene of the accident or the aftermath shortly afterwards; 

Based on the above, to be successful a secondary victim must show there was not only a physical proximity to the event but a close temporal connection.

A claim to be a secondary victim in a case involving medical negligence cannot meet the criteria, in that there is nearly always a period of time from when the provision of inappropriate medical care was administered to when the adverse consequences manifested themselves on the patient. Furthermore, the Supreme Court felt that common law does not recognise or compensate third parties for the consequences of injuries to other people.

In the instance of medical negligence, the term “accident” refers to a ‘discrete event’, an unforeseen unintentional event which causes injury (or a risk of injury) to a victim by violent external means. Further, the Court stated that it is difficult to identify a ‘discrete event’ in a “medical crisis”.

The Court also considered that witnessing an injury or illness in a medical crisis is variable and an adequate test has not been identified.

It was also considered the generally accepted duty of care owed by medical staff and the Court found that “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.”

The Supreme Court also made observations that the requirement to prove that a secondary claimant that their injury was caused by the means of a “sudden shock to the nervous system” and “horrifying event”, enshrined in the Alcock v Chief Constable of South Yorkshire Police judgment, expressing a view that the law had made an “unfortunate wrong turn” which the Court believes it has corrected.

Alessandra Paduano, an associate, commented “The Supreme Court’s judgment has removed the ambiguity surrounding secondary victim status in medical negligence claims. However, it also confirmed that decisions in respect of other types of medical negligence claims will be decided on a case-by-case basis” Alessandra further pointed out “It may well be decided in future cases that in such a situation where the potential secondary victim actually observed treatment where a medical practitioner administered the wrong drug or perhaps an incorrect dose thereby inducing a catastrophic adverse reaction, the Court allow such claims and award compensation. As far as other types of accident are concerned, for example, a road traffic accident, the Supreme Court judgment does not affect the claims of secondary victims.”

Giambrone & Partners’ personal injury lawyers believe the Supreme Court’s decision will be welcome news to medical practitioners who have contended that their legal duty of care extended to their patients and not to their patients’ family should they witness the death or medical crisis of their relative arising from medical negligence. It remains to be seen how future personal injury matters involving medical negligence will be dealt with.

Alessandra Paduano's expertise extends to a variety of areas. She specialises in personal injury and has extensive experience helping clients who have had accidents at work that have resulted in suffering serious life-changing consequences.

Alessandra has a meticulous eye for detail and strong analytical skills, which coupled with her personable approach, allow her to work efficiently and to a high standard.

She believes in establishing a good relationship with clients and strives to exceed their expectations. Alessandra understands each client has different needs and ensures that she tailors her advice and approach in acknowledgement of this. 

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