Secondary victim claims - A growing concern for health professionals

Secondary victim claims are on the rise, and are posing an increasingly pressing threat to healthcare professionals due to their often complex, sensitive and potentially expensive nature.

A secondary victim is someone that suffers psychiatric injury from a traumatic incident, not by being directly involved, but by witnessing injury to a primary victim. This secondary victim has to prove close ties to the primary victim in order to claim. Secondary victims’ claims arise out of the pursuit of damages for psychiatric illness when witnessing such shocking events. If the claimants are successful in proving their case, the damages will not be limited to statutory damages, but could stretch to hundreds of thousands of pounds to address long term psychiatric and associated employment issues.

When will a secondary victim be successful?

In Alcock v Chief Constable of South Yorkshire Police (1992), a case born out of the Hillsborough disaster, primary and secondary victims were clearly categorised. The claimants, led by Alcock, pursued damages for nervous shock resulting in psychiatric injury, which they alleged was caused by witnessing the events of Hillsborough disaster.

Alcock established that secondary victims needed to satisfy the following control mechanisms in order for their claim to be successful:

1. The event must be shocking and horrifying – this has proved to be a high bar to reach

2. Claimants must have been close to the injury in physical proximity in time and space – to view shocking events on the television, for example, would not qualify under Alcocks’s control mechanisms

3. Claimants must prove that they have suffered from recognised psychiatric injury caused by breach of duty by the defendant – proven by expert examinations and through witness statements

4. The psychiatric injury must be caused by the sudden appreciation of the horrific event, and not something that developed gradually thereafter – this can be very hard to distinguish and gives rise to much debate

5. Claimants must prove close ties of love and affection. This is presumed in a parent/child and husband/ wife relationship, but other claimants must provide evidence of such ties

What qualifies as a ‘shocking and horrifying’ event?

Walters v North Glamorgan NHS Trust (2002) serves as particularly relevant example in determining what amounts by law to a ‘shocking and horrifying’ event. The tragic story began with a baby boy being admitted to hospital with a misdiagnosis of jaundice in June 1996. Should the baby have received an accurate diagnosis of acute hepatitis, he would have undergone a liver transplant and would likely have lived. On 26th July 1996, the baby was readmitted to hospital after becoming unwell. On 30 July the mother awoke to find the baby fitting. Irreparable brain damage was sustained and the child died 36 hours later when life support was turned off.

Later, the court of appeal had to consider whether the identified event – which started with the fit on the 30th July 1996 and concluded with the death 36 hours later – could fulfil proximity for the purposes of the Alcock criteria. The judge ruled that the deterioration of this boy’s life over 36 hours could be classed as a single shocking and horrifying event. Psychiatric injury was established and, as such, the mother qualified as a secondary victim.

It is significant in the case of Walters that the events took place some time after the initial diagnosis, and also nearly one week after the child returned to hospital with worsening symptoms. In order to succeed in having an arguable case, it is clearly not always necessary for a claimant to prove that the point of the event is the point of when the damage first occurs, just at which the point it first becomes apparent.

What is a defining event?

The case of Paul v Royal Wolverhampton NHS Trust (2020) addresses the tricky concept of what a defining ‘event’ is. This complex secondary victim claim was originally rejected in late 2019, with the matter going on to be appealed in May 2020. Mr Paul attended hospital
with cardiac symptoms in November 2012. He was later shopping with his two daughters in January 2014 when he collapsed following a heart attack. The claimants’ case stated that there was a negligent failure to diagnose and treat coronary heart disease in 2012. Had appropriate treatment ensued, the heart attack would not have occurred. In this case, the heart attack was the first point at which negligence became evident. The key question throughout this case was whether the heart attack suffered over fourteen months after Mr Paul’s visit to the hospital could be identified as a relevant ‘event’. The Court of Appeal found that both the heart attack and death could in fact constitute the ‘event’.

This decision illustrates that a claimant does not have to prove that the ‘event’ is when the negligence or damage occurred; the event can be when the negligence becomes evident. This is especially important for clinical negligence cases where the negligence may be due to a failure to do something – and the ramifications only become evident later – as opposed to accident cases where the ‘event’ is usually the accident itself.

What does this mean for you?

Medical professionals now find themselves practising within an increasingly litigious environment. The decision in Paul v Royal Wolverhampton NHS Trust serves as a timely reminder of one of the repercussions for practitioners and healthcare corporations if errors are made or there is a failure to act.

The likelihood of secondary victim claims being successful is slowly increasing and, as such, this opens up yet another avenue for claimant law firms to pursue. The courts can be both liberal and restrictive in their interpretation of Alcock’s criteria. Importantly, it is likely that future secondary victim claims will focus on identifying the ‘event’ as the moment that the alleged negligence first became apparent. As a result, the success of secondary victim claims will likely increase.

In turn, this can raise the level of damages that are payable, and the costs of bringing secondary victim claims could increase, particularly given how intensely fought the points of law in this specific area are. This may mean mutual defence organisation (MDO) memberships and medical malpractice insurance policies become more expensive.

Healthcare professionals must be cognisant of this emerging risk. In order to tackle it, avoiding negligence in the first instance is the first and most crucial step. Important points to get right in this respect include:

  • Human factors are key. Consider enrolling on human factors training courses which emphasise the importance of good communication within teams and of double checking the basics – whether it is medication dose, site and side of the surgery, the patient’s name and date of birth and so on

  • Check for tiredness and speak out when you or a fellow staff member is obviously overly fatigued or stressed

  • Speak up if you are struggling with financial, personal or mental health issues. These are proven to impact negatively on performance

  • Ensure your consent process is accurate every time

  • Clearly write down all advice you give and the reasonings behind your decisions

  • Consider all possible diagnoses

  • Run all the appropriate tests that you have the authority to perform

  • Never attempt to conceal a mistake

  • Seek supervisory support or peer input if ever in doubt, and always record this

  • Follow your local and NICE Guidelines, they are there for a reason

  • Make specific note of patients/their families who refer to a patient as being particularly ‘out of sorts’, ‘really not themselves’ ‘feeling as if they might die’ even if at first glance it appears the patient has more of a generic low-level risk issue such as gastroenteritis

  • Follow referral guidance and stipulate the level of referral you require for your patient

  • Take and record and repeat, where required, all relevant observations and vital signs

Lockton can help with training in all these areas so please do not hesitate to contact us if you require support, or if you would like more information on the developments in this area of law. Similarly, our friendly team of placing brokers are available to discuss the impact of Paul and Covid-19 related developments on insurance premiums and will be only too happy to assist you in finding you a product that fits your requirements, particularly in a period where many professionals are seeing the private side of their practice dwindle.

If you would like further information, please feel free to contact us using the details above