A query that is frequently raised by relatives of persons who have been victims of clinical negligence is whether they have any legal remedy available for the upset and distress which they have suffered through watching their loved one in pain. The short answer to same is that it is possible to bring a claim, but only in very limited circumstances.
The first step in establishing a case of negligence is to prove that the tortfeasor owes the Plaintiff a duty of care. In the vast majority of medical negligence this poses no cause for concern. This is because a Doctor, in choosing to treat a patient voluntarily assumes a duty of care towards him or her. However, that Doctor does not owe a duty of care to the spouse and relatives of that patient. They have not undertaken to treat the spouse or the relatives, and there is no link between them to establish the necessary duties. For these reasons, the relatives will not be considered ‘primary victims’ by law.
However, case law has developed another concept whereby relatives of the primary victim of negligence may be able to recover. Such persons have become known as “secondary victims.” This definition describes persons who are not themselves victims of negligence, but are “the passive and unwilling witnesses” of an injury. The Courts have created a stringent set of criteria which must be established for a witness to a distressing event to establish that he or she is a secondary victim. These can be summarised as follows:-
It is evident from the foregoing that only a relatively limited category of persons will satisfy the above criteria and be described as secondary victims. In one case, of McLaughlin -v- O’Brien the Plaintiff’s husband and children were involved in a road traffic accident. At the time the Plaintiff was at home, two miles away. An hour later she heard of the accident and was taken to the hospital, where she was advised of the death of one of her daughters and saw the injured members of her family in extreme and distressing circumstances. The House of Lords found that although the Plaintiff did not see the accident itself, she saw the circumstances closely following the accident and this constituted the “immediate aftermath.”
It is clear from the above that the mere conveyance of distressing news alone to a relative would not enable a person to succeed under nervous shock. Nor does the fact of death or injury by negligence alone suffice. In the case of Sion -v- Hampstead Health Authority, the father of a 23 year old who died in a motor cycle accident wished to pursue a claim for psychiatric upset arising out of the treatment which he received in hospital prior to his death. During the Deceased’s time in hospital, his respiratory condition deteriorated seriously after two days, followed by cardiac arrest on the third day and then coma and death on the fourteenth day. The claim was struck out as it was found that there was no prospect of either a sudden or unexpected shock having occurred to the nervous system. Similarly, it should be noted that the death or injury must have been frightful or distressing to the secondary victim. In the case of Taylor v Somerset Health Authority, the Deceased’s death had been caused by the Defendant’s failure to diagnose his heart condition. The Plaintiff, who was the Deceased’s wife, argued that she had suffered a psychiatric illness after viewing her husband’s body in a hospital mortuary. The court stated that the purpose of the widow’s visit to the mortuary was to confirm her husband’s death. It had no relation to the circumstances in which the death occurred, and as a consequence, did not have sufficient proximity to the negligence on the part of the Defendant. The Plaintiff did not recover damages.
Each of these cases illustrates the difficulties that relatives of victims face in seeking compensation for the mental distress which they have suffered. Each case turns on its own facts. The conclusion that can be drawn from same is that whether or not a Plaintiff succeeds will depend entirely upon whether or not the circumstances of their particular case fulfils the criteria which have been established by the Courts.