The principal purpose of a clinical negligence claim is to seek justice and compensation for patients injured or harmed as a direct result of substandard medical care, otherwise known as primary victims. But what about those around the claimant who have been left mentally scarred from witnessing the damage caused - the secondary victims?
Claims for secondary victims is a contentious part of clinical negligence. They are difficult to pursue, face harsh regulations, and are at an increased risk of being dismissed in court, as highlighted in two secondary victim cases which are set to be heard at the Court of Appeal next month.
But because of these obstacles, successfully settling a secondary victim claim is very rewarding for clinical negligence solicitors.
These are people whose lives have been turned upside down by preventable trauma and the tragedy of watching a loved one suffer, but for whom the law doesn’t always favour the human at the heart of the case. In the past, we have successfully made secondary victim cases for people who had experienced relationship breakdowns, addiction, and had hit rock bottom. One previous case which will always stick in our minds is that of a claimant who battled alcoholism in a rehabilitation centre and became estranged from their children following a family death, but who managed to turn their life around post-claim to become a counsellor for other addicts.
In recent years, there has been an increasing number of secondary victim claims made in the context of clinical negligence cases. But how does making a secondary victim claim differ from a regular clinical negligence claim? And what are the challenges?
What is a secondary victim and what does the law say?
A secondary victim is one who suffers indirectly having witnessed a shocking event and either saw the injuries sustained or feared the primary victim would be injured.
To limit the number of ‘bystander’ cases arising from a single incident, i.e., multiple witnesses, there are strict control mechanisms in place which have been laid down by the courts. This arose from the Hillsborough Disaster in the late ‘80s, with Alcock v Chief Constable of South Yorkshire Police  being the defining case.
It is not sufficient for a secondary claimant to show they sustained nervous shock which led to a psychiatric injury. In order to pursue a claim, the secondary victim needs to have experienced an impact on their mental health that is severe enough to be assessed clinically as a recognised psychiatric condition by a consultant psychiatrist. Examples of psychiatric injuries include Post Traumatic Stress Disorder (PTSD), adjustment disorder, and panic disorder.
They must also prove that:
- The claimant was either present at the scene of the sudden, shocking, horrifying and exceptional event involving death or serious harm or must have been involved in its immediate aftermath (both physical and temporal proximity being required).
- The claimant was a close relative of and had a close emotional relationship with the primary victim.
- The injury was caused by the actions of the defendant at the point of breach of duty.
- The claimant must have perceived the death or risk of injury with their own unaided senses.
In Alcock, the secondary victim claims of individuals who were present in the stadium at Hillsborough and had witnessed the crush failed as claimants had not been able to establish close ties of love and affection with those killed and injured. This is despite many having suffered psychiatric injuries as a result of witnessing a sudden, unexpected and shocking event.
The law doesn’t suggest that a secondary victim claim can only succeed if an accident occurred. Of course, with clinical negligence there is rarely an accident or incident that results in immediate injuries. But in secondary victim claims, the injury cannot be a late consequence of an earlier harm, meaning there in less clarity than in personal injury accidents which is where the sticking points occur.
Generally, a failure or delay diagnosing or treating a condition is what leads to injuries which become apparent at a later date. But this causes a lag between breach of duty and the serious or fatal injury which can make it difficult to define which incident was the shocking event.
Time and space also lay bare the complexities of secondary victim claims. The proximity between the negligent act and the shocking event is often the cause of disputes between parties. Again, in Alcock, individuals who had identified their relatives in morgues failed to make a successful secondary victim claim because they were unable to show sufficient proximity to the accident, i.e., they weren’t at the stadium when tragedy struck.
The courts have also been seen to restrict successful secondary victim claims on the basis that the defendant could not have foreseen that a relative was likely to have suffered psychiatric injuries some weeks or months after the original event.
What is the role of a solicitor in a secondary victim case?
When assessing a secondary victim claimant’s case, a solicitor must take a thorough look at the chronology of the event and meticulously investigate specific details to ensure the stringent criteria and legal hurdles are met.
For example, we will look at whether the event was sudden and unexpected (such as cardiac arrest), what the secondary victim had to witness and whether it was particularly distressing or horrifying (medical intervention etc), and whether the event was the first manifestation of harm caused by the defendant's breach of duty (was this the first time they were aware of the negligence). This last point is where the crossover with a primary victim case occurs.
In many secondary victim claims, the defendant may make an application to strike out a case which involves complex legal arguments that take up considerable Court time and add to the cost of litigation. It is therefore paramount that a clinical negligence solicitor acting on behalf of a secondary victim has built a solid case before litigation begins to reduce the risk of a strike out occurring.
Recent cases to be heard before Court of Appeal
In December, two secondary victim cases are set to have a joint hearing at the Court of Appeal. The outcome of this appeal will lay down the law for future secondary victim cases, including those which have remained stayed the appeal.
In Paul v Royal Wolverhampton NHS Trust, the claimants, aged nine and 12, witnessed their father die of a heart attack over a year after the defendant failed to diagnose coronary heart disease, of which the negligence was admitted. The case was initially struck out on the basis that the two children were not present when the missed diagnosis occurred. However, this was overturned on grounds that the heart attack was the first occasion on which the damage caused by the hospital's negligent failure to diagnose and treat his heart condition became manifest.
In Polmear v Royal Cornwall Hospitals NHS Trust, both parents witnessed their six-year-old daughter die following a severe attack of breathlessness. Over a period of almost a year previous, the young girl had been referred to the defendant for ECG monitoring having had increasing episodes where she could not catch her breath, appeared pale and then later turned blue. Because she had no episode during monitoring, her symptoms were put down to exertion, however it later transpired she had a blockage in her pulmonary veins which subsequently led to her death.
While the negligence was admitted, defendant applied to strike out the secondary victim claims due to the time period between the girl first attending hospital and her death, as well as previous non-fatal episodes. This was refused, but due to lack of clarity within the law and the impending Paul case, the defendant was given permission to appeal.
Whatever the outcome from the joint hearing will no doubt impact the future of secondary victim cases in the context of clinical negligence.
Can I make a secondary victim claim?
If you have witnessed a traumatic or fatal event that happened to a loved one and have had to seek medical advice on your mental health then we may be able to help you. As previously mentioned, there are strict controls in place which need to be met in order for a claim to be successful.
If your claim in successful, you would be able to claim compensation known as general damages for your pain and suffering, i.e., your psychiatric illness. This will be determined by your ability to cope with work/life, the impact your mental health has had on your relationships, as well as the future prognosis of your condition.
The court uses guidance called the Judicial College Guidelines (JCG) which has four brackets for psychiatric compensation as follows:
Less severe –the duration of symptoms are less than 12 months and the extent to which the symptoms have affected someone’s daily activities and sleep is low level (£1,440.00 – £5,500.00)
Moderate –the symptoms have affected someone’s daily activities, life, work and relationships but where the medical evidence suggests good progress towards recovery will be made. The extent to which treatment will assist in the recovery of symptoms together with someone’s future vulnerability to relapse is also considered in this bracket. (£5,500.00 – £17,900.00)
Moderately severe –the symptoms amount to a disability affecting someone’s life in a permanent or long-standing basis preventing a return to comparable employment. (£17,900.00 – £51,460.00)
Severe – the most extreme of cases where the outlook for someone’s recovery is extremely poor (£51,460.00 – £108,620.00)