In the case of Re (A Minor by her Mother and Litigation Friend) & Others v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB), the House of Lords extended the scope of secondary victim psychiatric injury claims resulting from medical negligence.
Re (A Minor by her Mother and Litigation Friend) & Others v Calderdale & Huddersfield NHS Foundation Trust – Case Background
The case involved a child who had suffered an acute profound hypoxic ischaemic in the minutes immediately prior to and following her delivery. The Court ruled that the Trust had been negligent in the management and delivery of the child, and due to their negligence it caused her hypoxic event. There were numerous failings in the care provided to both the child and mother. Also, present during the birth was the child’s grandmother. She witnessed the event and alleged that she had experienced Post Traumatic Stress Disorder as a result.
A claim was made on behalf of the child, her mother as a primary victim and also the grandmother as a secondary victim.
Previous Case Law
Historically, it has been very difficult for family members to pursue and prove a psychiatric injury claim if they have witnessed medical negligence. 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. Secondary victims were said to be those who have not been directly injured, but who witnessed the events in question and developed a psychiatric injury arising from witnessing an event that had caused harm to a loved one.
This case is similar to that of Wells and Smith v University Hospital Southampton NHS Foundation Trust, which established that a mother could bring a claim as a primary victim if negligence occurred during labour. In Re & Others v Calderdale & Huddersfield NHS Foundation Trust (the Trust) the High Court accepted that the Trust were negligent in the delivery of the child, and due to this negligence, it had caused the mother to develop Post Traumatic Stress Disorder (PTSD). She was successful in bringing the claim as a primary victim and was therefore not subjected to the strict tests applicable to claims involving secondary victims.
Criteria For Secondary Victim Injury Claims
As the criteria for bringing a secondary victim claim is much more strict, it has been difficult to succeed in such claims. Secondary victim claimants must prove that:-
- They have a relationship of love and affection with the primary victim
- They came across the immediate aftermath of the event
- They have direct perception of the harm to the primary victim
- They are of reasonable fortitude
The rules were created to limit the number of claims where the immediate aftermath of an incident may be publicised heavily in the media. Courts have tended to limit claims for psychiatric injury in the past and the claims often fail because of arguments surrounding what is accepted as ‘immediate aftermath’ and whether the event was sufficiently ‘shocking’. As a result, NHS Resolution who manage clinical negligence claims for the NHS, have been reluctant to award damages to secondary victims. Successful cases are a rarity, as claims are limited to those who can clearly show that they meet this strict criteria.
Case Outcome
In Re & Others v Calderdale & Huddersfield NHS Foundation Trust, the grandmother had developed PTSD as a result of witnessing the negligent delays and care provided to both her child and grandchild. Her diagnosis of PTSD developed due to the baby’s flat, apnoeic presentation upon birth. The Court ruled that she was entitled to damages for nervous shock, and she was accepted to be a secondary victim.
This seems to be a positive decision for family members who witness a shocking event and have developed a psychiatric injury as a result. It also recognises the impact these events have on the wider family.
It is a positive ruling as it states that not all secondary victim claims should be so limited, which may in turn give rise to an increase in secondary victim claims in the future.
How Can Nelsons Help
This article was written by Carolle White, Chartered Legal Executive, and Amy Robinson, Paralegal, who work in the specialist Medical Negligence team at Nelsons.
Please contact Carolle, Amy or another member of the team on 0800 024 1976 or via our online form, and they will be happy to discuss our services with you.