secondary victims clinical negligence
Secondary Victims in Clinical Negligence (again): Shorter v Surrey Posted on April 28, 2015 | Leave a comment In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild). 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. These reports are known as prevention of future deaths reports (PFDs). There are less than a handful of reported successful secondary victim claims as a result of clinical... Decision. 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. It is not a later consequence of the accident. The “event” to which the claimant needed to prove proximity was (a), rather than (b). The damage causes no immediately evident signs or symptoms but in fact gives rise to a significant epilepsy risk (so that the tort is complete). Take, for example, the case of a young child who suffers brain damage as … Adam Hodson, Clinical Negligence Specialist at Sydney Mitchell LLP 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. Secondary victim claims in clinical negligence actions 24 Jun 2020 In 1968 Quintin Hogg Q.C. The decision in AMDC -v- AG & Anor  sets out the importance of implementing a thorough and structured process in dealing with capacity assessments and reports. On 20 November 2020, NHS England wrote to all NHS trusts with a clear instruction to implement a plan to vaccinate their workforce. 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. The Trust has indicated that it will appeal against the decision. 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.  This was held not to amount to a contempt of court: R v Metropolitan Police Commissioner. 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 … Also, supposing medical evidence established that the child must have had an earlier, unwitnessed, fit. 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. 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. 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. The ratio decidendi of this decision is, therefore, that in secondary victim cases proximity must be proved at the date of the event which completes commission of the tort (which may conveniently be described as the “scene of the tort”), and proximity at the date of subsequent injury is insufficient. That case in turn followed the Court of Appeal’s recent summary of the law in this area in Liverpool Women’s Hospital NHS Foundation Trust v Ronayne  EWCA Civ 588 – plus a host of other recent cases where defendant hospitals successfully defended secondary victim claims, in a medical negligence context, at trial. 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. You can also access our webinar resources which are designed specifically for our health clients - covering topics that may affect you. Posted: 22/09/2017. 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. 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. The primary victim was the claimant’s mother, who had suffered injuries to her head and foot when some boards fell on to her while she was at work, due to the negligence of her employer, the defendant. If you have any comments, please do let us know. Blog posts reflect the views and opinions of the individual authors. However, a recent Court of Appeal decision has provided some welcome clarity and guidance as to when a 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. The We are the NHS: People Plan for 2020/21 sets out a range of detailed actions to support essential transformation throughout the NHS and in partnership organisations, such as social care, local government and the voluntary and independent sectors. She cannot recover damages for the shock and illness that she suffered as a result of seeing her mother’s death three weeks after the accident. 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. The court then considered whether RE’s mother and grandmother satisfied the control mechanisms for secondary victim claims.  Cf Werb v Solent NHS Trust (Master Roberts, 15 March 2017, unreported). Had that approach been adopted the judge should surely have concluded that the claims were bound to fail. In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild). 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. It would follow that the secondary victim who saw the accident could satisfy the criterion of proximity. But, while this may be a pragmatic solution, it is difficult to identify any principle underlying it. We hope you find this of interest. 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. Maintained • . Secondary Victims in Clinical Negligence (again): Shorter v Surrey In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild). Can all three successfully sue the defendant, or if not, why not? However, in secondary victim actions, where the claimant’s perception of a qualifying (i.e. The High Court and Court of Appeal have recently considered again the application of the secondary victim (SV) ‘control mechanisms’ to claims arising from clinical negligence. 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… 4th June 2020. 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. Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. Nevertheless, Chamberlain J allowed the claimants’ appeal from the decision of Master Cook striking out the claims on the ground that they were bound to fail. ), 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”. Our clinical negligence team look at the recent case of Taylor v A Novo Ltd. As it was expressed in Liverpool Women’s Hospital NHS Foundation Trust -v- Ronayne 2015 - ‘a visitor to a hospital is necessarily to a certain degree conditioned as to what to expect... what is required in order to found liability is something which is exceptional in nature.’. 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. (the future Viscount Hailsham L.C. RE suffered an acute profound hypoxic ischaemic insult immediately prior to and … Copyright © 2020 Hill Dickinson LLP VAT number 108228335, North west clinical governance network – focus on maternity safety, Outcome of the consultation on the Caldicott principles. 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. As part of the proceedings, the parties jointly instructed a psychiatric expert to assess AG’s capacity. sufficiently horrifying) “event” (or its “immediate aftermath”) is a necessary condition for liability, the word is used, in a second and separate sense, to describe the secondary victim’s propinquity in time and space to an event which is necessary to enable the secondary victim to maintain an action against the tortfeasor, a shorthand description of which would be “proximity in fact”. Ex Turpi Causa – Is Illegality Still a Good Defence in Civil Claims. ( Log Out / RE suffered an acute profound hypoxic ischaemic insult immediately prior to and following her delivery. Well here’s another one. 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 first is witnessed by his mother, the second by his father and the third by his sister, all of whom suffer psychiatric injury. Secondary victims: “control mechanisms”. Secondary victim claims were brought by her mother and grandmother, who were present throughout the delivery. 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 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. 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. In a medical perspective this would be a patient harmed by their medical treatment. A review following the decision in RE and others -v- Calderdale and Huddersfield NHS FT . Change ), You are commenting using your Facebook account. The principles of secondary victim claims apply to clinical negligence cases as they do to other accident cases, but the factual circumstances are often very different. 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. 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. Well here’s another one. This is in contrast with the claimant in Ronayne who witnessed a ‘series of events which gave rise to an accumulation... of gradual assaults’ and who, at each stage in the sequence of events, had been conditioned as to what he was about to perceive, meaning there was no element of suddenness. 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. Clinical Negligence podcast - Paul v Wolverhampton NHS Trust and Secondary Victim Claims Rebecca Livesey, Neil Shastri-Hurst, Oliver May and Louisa Sherlock discuss the recent clinical negligence case of Paul v Wolverhampton NHS Trust and its potential implications for future secondary victim …  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. Again, presumably none of the family could succeed. It did not, therefore, arise in any of the House of Lords cases, McLoughlin, Alcock, Page v Smith, Frost v Chief Constable of South Yorkshire Police, in which the elements of secondary victim liability had been judicially defined. The National Data Guardian (NDG), Dame Caldicott, has published the results of her consultation on the Caldicott principles. Surely each has a distinct cause of action independent of the others. Presumably none of them could succeed. 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. 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. The judge’s obiter dicta, if correct, would represent a significant extension to the scope of liability to secondary victims that has been recognised in any previous case. Secondary victims are defined as those who witness a medical accident, which results in their suffering of a psychiatric injury. Change ), You are commenting using your Twitter account. Enter your email address to follow this blog and receive notifications of new posts by email. The law on secondary victims, namely those people who were not injured themselves (commonly known as primary victims), but who observed a loved one sustaining injury and suffered psychiatric injury as a result, is governed by principles set down in the cases following the … 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. 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. A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. 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. Found in: PI & Clinical Negligence. 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. This month, you’ll hear from Esther in health commercial, Louise in health advisory, and Monia in health litigation. So it would not arise in a case where, for example, a garage negligently serviced a car, which negligence caused the brakes to fail and the owner to drive the car off a cliff some time 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. ( Log Out / 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. The following PI & Clinical Negligence practice note Produced in partnership with Andrew Wilson provides comprehensive and up to date legal information covering: Psychiatric injury—secondary victims The decision of the Court of Appeal in Taylor and another v A Novo (UK) Ltd EWCA Civ 194 was binding upon the judge. In such a case, the relevant event is the accident. In 1968 Quintin Hogg Q.C. This blog does not offer legal advice and should not be used as a substitute for legal advice. Change ), You are commenting using your Google account. 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. (the future Viscount Hailsham L.C. 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”. 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. 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. The criteria for bringing a secondary victim claim was set out following the Hillsborough disaster, when Primary victims were defined as those directly involved in the events that had caused life threatening injuries. The only issue was whether the event was sufficiently sudden, shocking and objectively horrifying. The Restriction of Public Sector Exit Payments Regulations 2020 (the Regulations) were made on 14 October 2020 and came into force on 04 November 2020. Home > News > Appeal allowed against Strike out of Secondary Victim claims arising out of Clinical Negligence. If one of the family of the epileptic child above referred to happened to be a radiographer, he or she might equally have found the brain scan horrifying. It was agreed between the parties that the only issue was whether they could satisfy the criterion of “proximity”. 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. “What is required in order to found liability is something which is exceptional in nature” (Liverpool Women’s Hospital NHS Foundation Trust v Ronayne … The Regulations impose a cap of £95,000 (the cap) on exit payments in the public sector. It would mean that a secondary victim’s cause of action could arise long, even potentially many years, after the commission of the defendant’s tort against the primary victim. 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. Archive • 15.06.2020 • . He was therefore “worse off” than he would have been but for the defendant’s negligence; this was “damage” sufficient to complete his cause of action in anyone’s language; cf Grieves v FT Everard & Sons Ltd (the pleural plaques litigation) and Dryden v Johnson Matthey plc.. A secondary victim has a whole separate set of requirements to discharge, as set out below. Kate Kennell discusses 2 recent cases on Secondary Victims whilst reviewing this complex area and its relevance to Clinical Negligence claims generally. The case concerned AG, a 68 year-old woman, and her capacity to make decisions pertaining to various issues. 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. 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. Brexit and public procurement: do any major changes come into effect on 1 January 2021 once the transition period expires? The coroner’s primary duty is to decide how somebody came about his or her death. A person who is injured or even killed by another’s negligence is a primary victim. The claimants’ case was that coronary angiography should have been performed, which would have revealed significant coronary artery disease which could and would have been successfully treated by coronary revascularisation, and that had this taken place he would not have suffered the cardiac event in 2014. What if it could not be proved which of them was the first to witness a fit? About 3 weeks later she collapsed and died as a result of pulmonary emboli caused by her injuries suffered in the accident. 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. However, a secondary victim is someone who suffers psychiatric injury due to witnessing negligence to a primary victim, but who was not at risk of physical injury themselves. This would seem inconsistent with the “thus far and no further” prescription of Lord Steyn in Frost v Chief Constable of South Yorkshire Police, with which Lord Hoffmann and Lord Browne-Wilkinson agreed in that case, and which was one of the two stated reasons for the Court of Appeal’s decision in Taylor v Novo. Essentially, only the patient will qualify as a primary victim. 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