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Medical negligence claims following death of a loved one

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    Reform of the law is needed for relatives who suffer psychiatric injury as a result of medical negligence involving a loved one

    By Ali Cloak

We are often approached by clients who wish to investigate a medical negligence claim following the death of a loved one.  Our clients were often closely involved in the medical treatment and witnessed very distressing events, including their loved one passing away, and as a result have suffered psychiatric injury including depression and Post Traumatic Stress Disorder.

WHO IS A SECONDARY VICTIM?

As the relatives were not directly receiving medical treatment they are referred to by law as “secondary victims” of the medical negligence, and there is very strict criteria as to who can claim as a secondary victim.  It is now almost 25 years since the legal criteria for secondary victims, which arose from litigation following the Hillsborough Disaster, was established, and many are now calling for it to be reformed.

Following the tragic crush at Sheffield Wednesday FC stadium in 1989, a number of claims were brought by relatives of the victims who were either present in other parts of the stadium or watched the events unfold on television. The case of Alcock v Chief Constable of South Yorkshire determined that these victims could not seek compensation for their resulting psychiatric injuries. Despite advances in technology and huge changes in the way we communicate, the law remains much the same as in 1989, leaving a system that is outdated and unfairly strict.

Following Hillsborough, there are two types of victim who can potentially recover damages for a psychiatric injury caused by negligence. Primary victims are those who were directly involved in the events. Secondary victims are those who were not directly involved in the events but have suffered psychiatric injury as a result of what they saw and heard.

A secondary victim must show that it was reasonably foreseeable that a person of reasonable fortitude would have suffered some psychiatric injury, which basically means that if a relative has a history of having suffered psychiatric injury then it may prevent them from claiming.  Additionally, there are 3 other hurdles which must be overcome:

• a close tie of love and affection to the primary victim,
• closeness in time and space to the incident or its immediate aftermath and witnessing through their own unaided senses, and
• the claimant must suffer ‘nervous shock’ .

The first of these hurdles is very restrictive and currently only the spouse, fiancé, parents and children of the original victim are presumed to have the ‘close ties’ required to bring a case. This means that siblings and unmarried partners have to go through further efforts to ‘prove’ their “close tie of love and affection”.

The second provision requires direct involvement in the events through unaided senses.  Watching on television, or by webcam, or being told about events, for example is not enough under the current law.  With the advent of social media and the improvements in mobile phone capabilities this position seems overly restrictive.

The third provision requires the psychiatric injury to have been caused by a single “shocking” event.  This has since been found to include a continuous shocking event of up to 36 hours.  This means that if a relative witnesses a loved one suffer a slow drawn out death, for example over the course of a week, then they will be unable to claim, whereas if they witnessed a sudden death they would be able to claim,

The legal criteria were specifically set to try to limit the number of relatives who could claim in such circumstances.  Whilst we understand this intention, our experience is that the present law is too ambiguous and open to argument on each aspect of the criteria.  This means that bereaved and traumatised relatives investigating medical negligence claims following death of a loved one have to face very distressing arguments in respect of who they are, how close they were to the deceased, what they saw, how they saw it, how long it lasted and how they have suffered.  There are often long drawn out arguments on these individual points which creates litigation which could be avoided with clear law.

SEEKING REFORM

Matthew Stockwell, President of the Association of Personal Injury Lawyers (APIL), has recommended to the Law Commission that this area of law be reviewed. He states that the law needs to reflect the changes in the way we live:

The law has remained far too strict… Witnessing a tragedy happen to a loved one through a webcam or while on a video call, for example, is very possible

We strongly support APIL’s recommendation that this area of law be brought up to date and be clarified in clear legislation to prevent further distress to relatives who are already traumatised by witnessing their loved ones suffering. The Clinical Negligence Team’s specialist lawyers are experienced in advising claimants with psychiatric injuries, whether they are a primary or secondary victim. Please contact us if you wish to discuss medical treatment provided to a loved one where you suspect there may have medical negligence.

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