Secondary Victim Claims

Following the Supreme Court’s judgment, the answer to this question in the majority of cases will be No.

The Court has stated that the duty owed by a medical practitioner to a patient does not extend to protecting members of the patient’s close family from ‘exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative’.

The Supreme Court also made clear that in order to bring a successful claim the secondary victim has to have witnessed an ‘accident’.  This was defined as ‘an unexpected and unintended event which causes injury (or a risk of injury) to a victim by violent external means’.

In most medical negligence cases the event (or its aftermath) witnessed by the ‘secondary victim’ would generally not be classed as an accident, but instead classed as the suffering or death of the relative from illness, albeit caused by negligence.  The Court used the term ‘medical crisis’ for such scenarios.

Nevertheless, the Court did not state definitively that no claims for secondary victims relating to medical negligence would ever be possible.  An example was given of a relative witnessing an acute reaction induced by a doctor injecting a wrong dosage or drug.  This could arguably be seen as an accident.  The Court left the decision as to whether such a case would give rise to a claim to be considered on the individual facts if and when such a case is brought before the Court.

Therefore, there may be scope in particular circumstances for a claim to be made if a medical event is witnessed that could be defined as an accident.  However, there is clearly a lack of certainty around this issue and the limits on the duty of a doctor set out by the Supreme Court, and summarised above, appear likely to be a significant hurdle.

If you consider that you may have a claim then it is important to speak to a specialist solicitor.  Despite the Supreme Court’s judgment in the Paul case, the law in this area remains complicated.  A key issue to consider in all cases is who is a ‘primary’ victim.  For example, where there is an injury to a baby at birth, depending on the circumstances, a mother may be a ‘primary’ rather than a ‘secondary’ victim.

Irrespective of the Paul decision, there is no fundamental change in the ability to bring secondary victim claims in a personal injury context where an accident has been witnessed.