UK: Another Nail In The Coffin For Secondary Victim Claims

Last Updated: 12 February 2016
Article by Clyde & Co LLP

Timothy Owers (as administrator of the Estate of Karen Owers) & Anor v Medway NHS Foundation Trust and the Secretary of State for Health (Formerly Medway Community Healthcare NHS Trust) [2015] EWHC 2363 (QB)

The recent decision of Stewart J in Owers provides a blow to secondary victim claims and augurs further shutting of the Court doors to secondary victim claimants. By underscoring the high bar necessary to satisfy all 4 of the requisite control mechanisms, the decision provides further proof of the increased reluctance to favour these types of claims in the clinical negligence context.

The decision also highlights the importance of causation and provides a valuable example of why defendants should not shy away from pursuing a causation defence, even in the context of admitted breaches of duty of care.

The case

The case concerns the events surrounding the admission, treatment and care provided to a patient (KO) at the Medway Maritime Hospital, Kent (the Trust) on 14 March 2010. It was agreed that on 14 March 2010, KO suffered a stroke and such diagnosis was not made by the Trust or its employees. Whilst she was admitted to the Trust hospital on 14 March 2010 with suspected stroke, she was seen by triage at 8:20am, stroke nurses and then assessed by a senior house officer, KO's condition fluctuated and no clear diagnosis reached. It was accepted that by 9:40am her condition deteriorated, yet the senior house officer failed to re-examine KO and she was discharged at 11:36am (which the Trust accepted was negligent). On discharge, due to her worsening condition KO's husband drove her to another hospital. She was eventually diagnosed with a basilar artery occlusion stroke, a rare type of stroke resulting from vertebral artery dissection. Unfortunately, by the time diagnosis was reached and treatment administered she had deteriorated significantly, became seriously disabled and sadly died in 2014.

The Court was required to consider 2 issues: whether the Trust was liable to KO for pain, suffering and loss of amenity where the Trust had admitted that it had breached its duty of care to KO in respects of the care provided at A&E but denied causation; and whether KO's husband (TO) could succeed on a secondary victim claim against the Trust for psychiatric harm allegedly caused by the Trust's failure to properly diagnose and treat his wife.

Causation: The defence at its best

The Trust had admitted that the failure for any doctor to examine KO following her deterioration at about 9:40am and decision to discharge her were negligent breaches in their duty of care. There were clear flaws in the Trust's Stroke Pathway, which did not clarify whose responsibility it was to make the relevant diagnosis and/or what to do when a stroke diagnosis could not be excluded, but also evident failures by the Trust to follow stroke protocols and NICE guidelines in KO's case. However, even in the context of admitted breach the Trust somewhat bravely relied in a causation defence, namely that even had aspirin been administered sometime after 10:40am it would have had no causative effect on the Claimant's outcome. This argument succeeded.

KO alleged that she was a candidate for thrombolysis at the time of admission and should have received this treatment (which needed to be administered within 3 hours of the onset of stroke symptoms). The Court disagreed and found, on the balance of probabilities her neurological deficit probably manifested before she awoke and on that basis she could not have been thrombolysed.

In the alternate, KO claimed that she should have been prescribed aspirin before 9:40am and if she had been, her outcome would have been significantly improved. The Trust had admitted that KO should have been prescribed aspirin at some point between about 10:40am and 11am but posited that even had this occurred, the ultimate outcome would not have altered and the breach therefore had no causative effect. The Court agreed, finding that on the evidence it was not possible to conclude that had KO been prescribed aspirin at any time prior to 11am, she would have had a better outcome. Therefore, KO failed to prove on the balance of probabilities that the Trust's breach in failing to prescribe aspirin caused or materially contributed to her eventual outcome.

Another loss for secondary victim claimants

Of greater interest is perhaps the finding in relation to the claim brought by KO's husband, which further underscores the high bench mark for secondary victim claims and why these claims rarely succeed. TO alleged that the distressing events he had witnessed being his wife's deteriorating condition; the Trust's failure to properly diagnose and treat his wife and then decision to discharge her when she was, by that time, very seriously ill, caused him to suffer a psychiatric injury. Of note, Stewart J found that on the balance of probabilities the Trust's breaches of duty had caused TO to suffer from post-traumatic stress disorder. Yet despite this finding, the secondary victim claim still did not succeed as TO failed to satisfy all 4 "control mechanisms".

The 4 control mechanisms for secondary victim claims (as set out at paragraph 10 of Liverpool Women's Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588) require:

1. A close tie of love and affection with the primary victim

2. Proximity to the incident (in respect of time and space)

3. Causation

4. The illness to be induced by a sudden shocking event

The issue for TO was the very high bar set for issue 4, which requires the events concerned to be of a nature capable of founding a secondary victim case (i.e. by being in the necessary sense "horrifying"). In order for TO's claim to succeed, he needed to satisfy the Court that there was a sudden appreciation of a horrifying event. Stewart J considered that the events witnessed by TO in relation to his wife's treatment, or failure thereof, and subsequent deterioration were by no means "horrifying" albeit agreed that they were distressing. Thus, the secondary victim claim failed.

Lessons learned

The Owers decision highlights the importance of the claimant being able to satisfy both breach and causation limbs in order to succeed on liability and underscores why defendants and Trusts with a robust causation position should not shy away from running this defence, even where breach of duty of care has been admitted.

The decision also demonstrates that the "horrifying event" concept is a requisite element of a secondary victim claim and there is an increasingly narrow interpretation of what may satisfy the concept of such an event. With mere distress not deemed sufficient, this case shows the ever increasing reluctance of Courts to entertain secondary victim claims.

Another Nail In The Coffin For Secondary Victim Claims

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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