We have seen a steady increase in claims for psychiatric injury, brought by the relatives of those affected by clinical negligence. However, whilst it can be upsetting to see a loved one unwell in hospital, particularly where their illness could have been prevented or ameliorated in the event of appropriate clinical care, the law does not always allow for the recovery of compensation in such cases.
Predominantly for reasons of public policy - to stop the ‘floodgates of litigation’ - it is intended that only those who meet the criteria set out in the leading case of Alcock –v- Chief Constable of South Yorkshire Police 1 AC 310 should recover damages. However, the test in Alcock is not always interpreted in its strictest sense by the courts, who often find sympathy with claimants who have been adversely affected by an injury to their loved one.
Whilst it is impossible to prevent claims for psychiatric injury by those purporting to qualify as secondary victims, awareness of the potential for such claims (and the applicable test), together with increased vigilance when speaking with a patient’s family members, can help to give your organisation the best chance of properly defending appropriate cases.
Recent trial success in secondary victim case
In a recent case, we were able to successfully defend a claim by the husband of a lady who had suffered life-threatening complications following a relatively minor gynaecological procedure. Liability in respect of her injury was conceded and her claim was compromised.
However, her husband pursued a claim for damages in respect of his own psychiatric injuries, said to have been sustained as a consequence of having been advised that his wife may not survive. He had been out of the country when she became unwell, but had returned the following day.
Whilst is was agreed that he had suffered a psychiatric injury as a consequence of his wife’s illness, there was disagreement as to whether, from a legal perspective, the defendant was required to compensate him.
His Honour Judge Platts, sitting in the Manchester District Registry, found for the defendant, applying the Alcock control mechanisms as follows:
1. Proximity of relationship
As the husband of the injured lady, he was within the class of persons entitled to recover damages.
2. Proximity in time and place to the index events
He was sufficiently proximate in time and place to the index events. Applying Walters –v- North Glamorgan NHS Trust PIQR P23, the judge held that there had been one ‘seamless tale’ from the moment he arrived at the hospital and learned that his wife was critically ill and during the 48 hours which followed.
3. Whether the injury was caused as a result of shock
The central issue was whether the 48 hour period (the ‘immediate aftermath’) gave rise to shock (causing his psychiatric illness).
During the joint meeting of the experts it was agreed that his illness had been caused by a series of upsetting events over time, rather than one, shock-inducing event. However at trial the claimant’s expert sought to suggest that the main ‘shocking’ event (responsible for his injury) was receiving the news that his wife had a 50/50 chance of survival.
The judge agreed that such news would come as a ‘bolt out of the blue’ but rejected the argument that it was sufficiently shocking so as to be considered the cause of his condition.
He preferred the evidence of our expert, who described how the claimant’s symptoms likely built up over time, like a glass being gradually filled up with water. He described how it started filling from the moment his wife called to say she was ill. It continued to fill as he gradually adjusted to the change in his relationship with his wife as a result of her illness, until it eventually overflowed when he presented to his GP with psychiatric symptoms.
The claim was dismissed and we are presently seeking to recover our costs of the litigation.
Top tips for claims managers
- Make clinicians and nursing staff aware of the potential for such claims.
- Encourage staff to make detailed entries in the medical records following any discussions with a patient’s family, recording who was present and what was discussed, to avoid ambiguity later on.
- If an untoward incident occurs, staff should be encouraged to write up their notes or make a short statement as soon as possible afterwards, so that information regarding who was present and their reaction to the events (which may not seem important at the time) are recorded.