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Secondary Victims  – Medical Negligence

The Court of Appeal case of Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 is the latest high profile decision in the area of secondary victims of nervous shock when losing a loved one in a medical negligence context.  Upon considering a number of online articles/reviews of this decision it seems a number of commentators may be misinterpreting or perhaps overestimating the impact of this case, and the general trend for such cases.

The basics:

It is perhaps best to start with the basics: the starting point being the cases of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, both arising out of the Hillsborough disaster.

Five necessary elements were identified for such a claim to succeed:

  1. The Claimant must have a close tie of love and affection with the person killed, injured or imperilled;
  1. The Claimant must have been close to the incident in time and space;
  1. The Claimant must have directly perceived the incident rather than, for example, hearing about it from a third person; and
  1. The Claimant’s illness must have been induced by a sudden shocking event
  1. The Claimant must have suffered “frank psychiatric illness or injury” as opposed to grief, sorrow etc i.e. the normal effects of losing a loved one

A “sudden shocking event”

Much of the battleground in recent medical negligence cases has revolved around this point.

In Alcock the Court defined “shock” in this context as:

“…the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.  It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system”

In medical negligence cases it can often be the case loved ones see the patient in an unexpectedly terrible state, perhaps with tubes attached and/or suffering, within a hospital setting.

The Court identified in Ronayne there was only one reported case in which a Claimant had succeeded in such circumstances i.e. witnessing the events of medical negligence in a hospital setting.  This of course does not mean there has only been one such success as only certain cases, normally in higher courts, are reported.  However, the Court commented in Ronayne about this as follows:

“That is in my view unsurprising.  In hospital one must expect to see patients connected to machines and drips [and] expect to see things that one may not like to see.  A visitor to a hospital is necessarily to a certain degree conditioned as to what to expect, and in the ordinary way it is also likely that due warning will be given by the medical staff of an impending encounter likely to prove more than ordinarily distressing.”

However, the Court also recognised the Court of Appeal case of North Glamorgan NHS Trust v Walters [2003] PIQR P16 in which a mother witnessed her child suffering a fit in hospital due to negligence and following that she was unprepared for things turning worse after being provided with incorrect medical advice that the fit had not caused harm.

Walters – “a seamless tale with an obvious beginning and an equally obvious end”

The essence of the mother’s case in Walters was that the 36 period beginning with the moment she was awakened to her child’s fit until the point at which his life support machine was turned off was one “horrifying event” which she suddenly appreciated, rather than gradual assaults on the nervous system.  The question for the Court in Walters therefore was whether such a 36 hour period, in a hospital setting, could be seen to be an “event”.

The Court in Walters decided yes – it was a “seamless tale with an obvious beginning and an equally obvious end.  It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.”

The appreciation had been sudden in that the mother woke to her baby’s convulsion and seeing this was a “sudden assault on the mind” and the bad news provided to her the following morning (that the baby had suffered permanent and terminal injury) were “sudden and unexpected assaults on her mind.”

The Court summarised the position as follows:

“The first… …event in the series is her being woken by her child’s convulsion.  What she saw was unexpected.  That amounted to a sudden assault on her mind.  The next event is arriving at the hospital, hopes high.  She is given news she did not expect and did not want.  The reaction was to leave her stunned.  This was a sudden and unexpected assault on her mind.  The next day she is told she should switch off the life support machine.  Perhaps she feared it might be so but does one doubt the consultant’s evidence that she and her partner found it particularly devastating because they thought they had been reassured prior to Elliot’s transfer than his condition was treatable?  Each of these three events had their impact there and then.  This is not a case of gradual dawning of realisation that her child’s life had been put in danger by the defendant’s negligence.  A consequence of that negligence was that the child was seized with convulsion.  She was there witnessing the effect of that damage to her child.  The necessary proximity in space and time is satisfied.  The assault on her nervous system had begun and she reeled under successive blows as each was delivered.”

Ronayne – “a series of events over a period of time with no inexorable progression”

The basic story in Ronayne is one of a wife developing post-operative complications, being readmitted to hospital as an emergency case, things seeming okay, the family then being called in and seeing their wife/mother in a terrible state and hooked up to machines etc.  Further surgery followed and again following that surgery the family were taken in to see Mrs Ronayne who was this time on life support machines and much worse.  The following weeks were very troubling but thankfully she slowly recovered.

On the face of it the facts appear similar to Walters – could this be “an event”?

The Court in Ronayne decided no – it was not, like Walters, a “seamless tale with an equally obvious end.”  This case rather concerned “… a series of events over a period of time.  There was no “inexorable progression” and the Claimant’s perception of what he saw on the two critical occasions was in each case conditioned or informed by the information which he had received in advance and by way of preparation.”

The Claimant i.e. Mr Ronayne knew of his wife’s condition and so, in the Court’s view, it was “artificial to regard the sight of his wife in her pre-operative condition as constituting the beginning of an event distinct from what had gone before”

Further, it was “nothing like the assault upon the senses to which Mrs Walters awoke” and “this sequence of events was far from seamless.”

What Mr Ronayne had experienced was a gradual dawning of realisation that his wife’s life was in danger as a consequence of the negligence, which, in the Court’s view, was not sudden and unexpected as was the case in Walters when the mother awoke to observe her child suffering a fit.

Reading the judgment in Ronayne, the recurring point from the Court is that the Claimant was conditioned for what he saw as he had been briefed prior as to his wife’s condition and so what he saw, in that context, was in fact expected.

The Claimant’s case therefore failed.

So did Ronayne tighten the law for secondary victims in medical negligence cases?

In the writer’s view, and in contrast to that of some defendant commentators – no.

The law in Walters was clear – there must be a seamless tale with an obvious beginning and an equally obvious end and, harking back to the original case law – there must always be a sudden and shocking event.  If someone is in deteriorating health and their relatives are informed so, and then witness that person receiving the appropriate treatment for someone in such a state of health then it is difficult to see how this can be a “sudden and shocking event.”

In contrast to this case, as was the case in Walters, is a situation whereby a loved one experiences a sudden downturn in health which then spirals into tragic consequences.  In such a case the sudden downturn and then downward spiralling are unexpected to the relatives and therefore in many cases will indeed be “sudden and shocking.”

There must be some beginning to the “seamless tale” and there must then be a progression even if that progression includes some ups as well as downs.

There will of course be grey areas: for instance, if a relative experiences a sudden downturn/suffering but then enters a steady, but not improved, state and the family then observe the loved one in that following steady state.  It will perhaps depend upon the outcome – whether there is the “equally obvious end” to go along with the “obvious beginning.”  It will also perhaps turn upon the medical evidence – how much harm can be done by observing a sudden downturn which then levels out even if that levelling out results in a slow decline?  It seems to me such circumstances will probably break the “seamless tale” as it halts the repeated assaults upon the senses.

Each case will need to be decided upon its own merits but, in the writer’s view, considering the original law in Alcock and the clear criteria outlined in Walters, Ronayne was correctly decided and certainly did not vary or in any way criticise the law in Walters.

The position has not, I believe, been made worse for claimants in such cases but rather the legal position in Walters has been reiterated and re-emphasised by the Court.  Ultimately, a relative who observes a loved one entering an unexpected downward spiral followed by a downward progression should still expect their case to succeed, dependent upon the medical evidence and severity of events of course, just as was the case prior to Ronayne.

Taylor v Novo  [2014] QB 150 – a question of proximity

Taylor v Novo was a slightly odd case in which the Claimant’s mother sustained injury at work when wooden boards fell onto her.  Whilst she only appeared to suffer minor injuries at the time, three weeks later she collapsed and died at home.  Although the Claimant was unfortunately present when her mother collapsed and died, she was not present at the time of the original accident.  The Court held that as the daughter was not present at the time of the incident she was not sufficiently proximate enough and so her claim failed.

It is important to realise here that the Court’s test of proximity referred to the “accident” as opposed to “breach of duty.”  The Court’s logic being that it of course wanted to prevent situations whereby an accident occurs in which a person suffers minor or moderate injuries but then say, many years later, ultimately dies of such injuries in the presence of a loved one, and that loved one is able to then claim as a secondary victim, potentially many years earlier.  There is not normally an “accident” in clinical negligence cases but if one takes the concept of “accident” to equate to the realised effects of a prior breach of duty then it could be that the equivalent of “accident” in clinical negligence could be the first onset of adverse health effects attributable to the breach of duty.  If so, if a loved one was not present when the injured party first developed symptoms but say a few weeks later following discharge was present when the injured party declined unexpectedly and subsequently died their claim as a secondary victim would appear unlikely to succeed.

One could argue that Ronayne, Walters and Novo all highlight a similar point – the need for there to be a seamless tale of events beginning with the onset of symptoms attributable to breach of duty culminating in the death of the loved one.

However, what should be remembered is that “accident/onset of symptoms” does not necessarily equate to “breach of duty.”  For example, what if in Taylor v Novo the boards had been negligently strapped together two years prior to falling onto the deceased but the Claimant daughter had been present to witness the accident?  It seems highly unlikely the Court’s policy considerations would have had the intention of barring the daughter’s claim if say the mother had died at the scene purely on the basis the breach of duty (in this case the negligent strapping of the boards) had occurred years earlier as there would appear no reasonable justification for such a restriction.  Rather, where the legal position seems odd is that in in those circumstances if the mother had not died at the scene but had died three weeks later there may not, arguably, have been a “seamless tale of events” yet the Court indicated in the judgment in Novo that the daughter would recover in such circumstances.  One could perhaps ask if the daughter in Novo would still recover damages regarding a death three weeks later, despite witnessing the accident, post the Court’s decision in Ronayne?

Summary

The law here remains complex and the cases often difficult to reconcile.  It is perhaps the case that a general theme emerges, as set out in Walters, i.e. the need for there to be a “seamless tale of events” but where and how that tale begins and ends could remain a tricky and case-sensitive issue.

Despite the reaction to the Court’s decision in Ronayne it is important to bear in mind the Court in neither Ronayne nor Walters did not criticise the decision in Walters and so there is nothing to suggest the Claimant in Walters would not succeed in just the same way if the case was heard today, but in every case in which the loved one declines in a hospital setting very careful attention will need to be paid to the question as to what extent a “seamless tale of events” exists and whether any potential breaks in the chain, whether spatial and/or temporal, could defeat a secondary victim claim.

By James Winterbottom, Solicitor

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