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Secondary Victim Claims: Medical Negligence

Secondary Victim Claims: Medical Negligence

The psychological impact of witnessing a parent, child, sibling, or other close individual suffer as a result of medical negligence can be life altering. Medically recognised psychiatric conditions such as post-traumatic stress disorder, anxiety and insomnia can have a profound impact on one’s social life, career, and day-to-day life. Victims can require extensive professional input to recover from these conditions.

Despite this, the law regarding secondary victims in the context of medical negligence has a complex history of uncertainty, and claims are often strongly defended with success.

Who can make a claim as a secondary victim?

The law sets out a strict criterion for secondary victim claims as first established in Alcock v Chief Constable of South Yorkshire Police, a case that arose from the Hillsborough Disaster. To make a successful claim, you will need to show that:

  • It was reasonably foreseeable that a person of normal fortitude would suffer from a psychiatric injury.
  • The secondary victim has a sufficiently close relationship with the immediate victim (such as parent-child, or brother-sister);
  • There was sufficient ‘proximity’ (closeness) to the accident; and
  • The psychiatric illness was caused by the shock of witnessing a sudden horrifying event.

In the context of medical negligence, the difficulty in bringing a claim is often faced at the proximity aspect of the test. Existing case law has predominantly found against secondary victims who have suffered a psychiatric injury long after the negligence occurred; only those who fit clearly into the above criterion and were present at the time of the negligence have been able to claim.

What are the Courts saying now?

More recently, however, the courts appear to be adopting a wider approach to the proximity test. In the recently decided case of Paul v Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB), two children who witnessed their father die in the street due to a condition that was misdiagnosed 14 months prior were able to bring claims as secondary victims. It was found on appeal that the event witnessed by the children was shocking enough that the psychiatric injuries they sustained could be linked directly to the negligent misdiagnosis, despite the time that had passed.

This case has therefore increased the scope for secondary victims to bring a claim where there has been a delay between the negligence and the psychiatric injury. This is particularly relevant in the context of medical negligence, for example where a family must witness a loved one deteriorate over time and die because of a negligent misdiagnosis. The psychiatric injury can be sustained much later but still be linked to the negligence and the courts are slowly opening to this argument.

Widening scope

This is not the only example of the courts widening the scope for secondary victims, however. Cases such as Re (a Minor) and Others v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 have seen the courts award damages to a grandmother who witnessed the injuries caused to her grandchild during childbirth. It is evident that the definition of a ‘sufficiently close relationship’ is expanding, with the courts recognising that other family members can suffer psychiatric injury from witnessing a shocking event too. This opens the possibility for more victims to potentially bring a successful claim as a secondary victim in such circumstances.

The Overview

The test for bringing a successful claim as a secondary victim remains strict, and the courts will take each case on its specific facts. However, recent developments mean that solicitors and their clients should not be easily dissuaded from pursuing a claim as the courts continue to widen the scope for those who suffer psychiatric injury at the hands of negligence.

It is crucial that anyone who believes they may have a claim for medical negligence as a secondary victim seeks specialist legal advice from a solicitor with expertise in this area of law. 

If you would like to speak to one of our team members, please do get in touch.

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