Nature of secondary psychiatric shock in medical negligence cases maybe considered by the Supreme Court

Relatives of a woman who collapsed and died some time after doctors failed to diagnose her heart condition have been suggested to take their secondary victim psychiatric injury claim to the Supreme Court.

The suggestion came from Master of The Rolls, Sir Geoffrey Vos, who, in handing down his judgment, said he was bound by rules set down in a previous finding in the Court of Appeal, Novo.

He said: 'Novo is binding authority for the proposition that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event.”

However, he added: 'If I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury.”

He suggested that the claimants should take their case to the Supreme Court, which was in a better position to decide whether to depart from the law as stated by Lord Dyson in Novo.

The Court of Appeal judges had sided in favour of the Royal Cornwall Hospital NHS Trust and dismissed the relatives’ psychiatric injury claims.

The woman who died, Esmee Polmear, had been seen several times by her GP in 2014 with a history of strange episodes during which she could not breathe and turned blue.

Subsequent investigations concluded that her symptoms were likely to be related to exertion and were physiological, 'with nothing to suggest an underlying abnormality of her cardiac rhythm.’

She had a further episode later and, despite medical care, died in Royal Cornwall Hospital NHS Trust hospital in July 2015.

The two claimants developed psychiatric injury as a result of having seen Esmee Polmear collapse and providing first aid to her until the paramedics arrived.

Royal Cornwall Hospital NHS Trust admitted that Esmee Polmear should have been diagnosed by mid-January 2015, leaving the door open for secondary victims to claim for the Trust's negligence in failing to make a correct diagnosis.

A secondary victim is generally someone who suffers a psychiatric injury, previously known as 'nervous shock', due to witnessing the death of a loved one as a result of negligence.

To succeed in a secondary victim claim, a person must prove a close tie of love and affection with the main victim; show that they witnessed the event or its ‘immediate aftermath’; have a direct perception of the harm to the main victim and that they suffered psychiatric injury due to ‘a sudden shocking event.’

An example of a case in which a person can claim secondary victim psychiatric would be witnessing the death of a loved one in a car accident, where the shock is instant.

However, the nature of medical or clinical negligence claims means that there is often a gap in time between the misdiagnosis or non-diagnosis and the subsequent death.

In the Esmee Polmear case, the Court of Appeal had to consider whether, as a defendant of clinical negligence, the Royal Cornwall Hospital NHS Trust could be held liable for the relative’s psychiatric injury due to negligence, days, weeks or months earlier, so that the shock was not instant or in the 'immediate aftermath' of the negligence.