The Supreme Court Limits "Secondary Victim" Claims for Medical Negligence

Written by Chris Salmon Share:
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This month's Supreme Court decision, Paul v Royal Wolverhampton NHS Trust, has made it significantly harder for families to claim compensation for psychiatric harm if they witnessed a loved one's death that was caused by medical negligence.

Prior to the Court's ruling, in some circumstances it was possible for family members to claim compensation if they witnessed a death caused by medical negligence, as "secondary victims".

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Medical negligence claims

What are "secondary victims"?

A secondary victim is someone who suffers psychological harm after witnessing a traumatic event that injured or killed someone close to them. These claims are already difficult, as the courts require:

  • A close relationship with the person harmed
  • Direct involvement in or witnessing of the shocking event
  • That the psychiatric injury was foreseeable

In English law, the legal concept of secondary victims was largely established in Alcock v Chief Constable of South Yorkshire Police, a landmark case after the Hillsborough disaster, when the family members of killed and injured spectators suffered harm after witnessing the incident as it was broadcast on TV and radio.

How do secondary victims relate to medical negligence?

The key issue in Paul v Royal Wolverhampton NHS Trust was whether a medical mistake could meet the courts' test, when the effects of the negligence would only be obvious later.

The Supreme Court looked at whether family members who witnessed a sudden death could be compensated for psychiatric harm. The consequences of the medical error that led to the death were traumatic and unexpected, but the family wasn't present when the medical error actually happened.

What did the Court decide in Paul v Royal Wolverhampton NHS Trust?

The Supreme Court decided that medical professionals do not owe a legal duty of care to family members harmed by witnessing the effects of earlier negligence.

Although this seems like an edge case ruling, the decision will affect most secondary victim claims for medical negligence. This is because family members are unlikely to witness the negligent treatment itself.

Therefore, family members who see a loved one die or collapse as a result of earlier negligence cannot claim as secondary victims, unless:

  • The family member also witnessed the medical negligence itself, or;
  • The family member was also involved in the accident or injury that lead to the negligent treatment.

What options do families have after a medical error?

If you or someone you know has been the victim of medical negligence, you may still be able to claim compensation for the trauma you have suffered. You could still claim if:

  • You were also physically injured, or were also the victim of negligent care.
  • You were involved in the incident that lead to the medical error.
  • You are the dependent of someone who died as the result of medical negligence.

The Court's decision doesn't lessen the emotional toll that medical errors take on the families of victims, but it does change what is possible through the legal system.

If you have questions or concerns, or would like to discuss your options with a specialist solicitor, please call us on 0800 376 1001 or arrange a callback.

Chris Salmon, Director

Author:
Chris Salmon, Director