Medical Negligence Claims For Non-Patients – ‘Secondary’ Victims

Can non-patients ever be owed a duty of care by a healthcare professional?

In medical negligence claims the law distinguishes between primary and secondary victims. A primary victim is the patient who has suffered the alleged negligence. A secondary victim is a person who suffers injury as a result of the negligence suffered by the primary victim.

For a successful medical negligence claim for primary victims, the following must be established:

The below explores how these requirements can be met concerning secondary victims.

Medical negligence claims for secondary victims

The Duty of Care

Doctors and other healthcare professionals owe duties of care to their patients, but not usually to their patients’ loved ones. This is because the patient is usually the only person to be injured by medical negligence.

There are, however, many scenarios in which a third party might seek to claim that they were owed a duty of care by a healthcare professional. These include:

Psychiatric Injury

In narrowly-defined circumstances, the law allows the loved one of a patient who has suffered psychiatric injury from witnessing an event that caused death or serious injury to the patient to recover compensation.

In these cases, the third party is described as a secondary victim. This is because the ‘primary victim’ is the patient themselves. In order to bring a negligence claim as a secondary victim, you must be able to show:

1. There is a close relationship with the primary victim

• This is primarily close family relationships.
• If this is not the case, there must be some special bond of affection between the primary and secondary victim.

2. There was proximity (closeness) to the event or its immediate aftermath in time and space

• This means the incident or immediate aftermath must be seen and heard.
• Proximity relates to the “relevant event” and not just proximity to the final consequence of the negligence.

3. Suffer a recognised psychiatric illness

• Medical evidence is required to prove that a recognised psychiatric illness has been suffered.
• The psychiatric illness should be caused by shock and not grief.
• One example of a recognised psychiatric illness is Post Traumatic Stress Disorder (PTSD).

An example of a possible psychiatric injury claim would be where a loved one who was present in the delivery room during childbirth where the mother died as a result of negligence and because of this they suffered a psychiatric illness, such as Post-Traumatic Stress Disorder.

Wrongful Pregnancy

For males, where a sterilisation operation has been carried out negligently or the patient has been given negligent advice about its success, it is possible for their partner to recover damages for a ‘wrongful pregnancy’.

This is only possible, however, if they were within the doctor’s contemplation at the time of the operation because they were the patient’s wife or partner.

The following cases demonstrate this:

• In the case of Thake v Maurice and McFarlane v Tayside, the wives of men who had undergone failed vasectomies were able to claim damages for subsequent pregnancies.
• However, the case of Goodwill v British Pregnancy Advisory Service shows that the surgeons carrying out the vasectomy do not owe a duty of care to all the potential future sexual partners of the patient.

Failure to prevent the patient from causing harm

Doctors can owe a duty of care to a third party if they fail to prevent their patient from causing harm to the third party if a doctor:

• Realises the patient is unfit to drive but does nothing and a third party is injured as a result;
• Negligently fails to diagnose their patient’s infectious disease (this poses a risk to third parties); or
• Does not ‘section’ a psychiatric patient who they believe could cause harm to a third party.