Medical Negligence

Secondary victim claimants are those who suffered psychiatric injury as a consequence of witnessing an accident death or injury of a loved one. But under limited or case to case circumstances, they have the right to claim compensation for the psychiatric injury they underwent. Less commonly, secondary victim claims are pursued by claimants who have suffered psychiatric injury after witnessing a medical crisis, which has been caused by negligence in the primary victim’s medical treatment. It has been assumed that both class of claimants (those who witness an accident and those who witness a medical crisis) fall within the exception to the general rule that a claim for compensation cannot be pursued by a person who is not the primary victim.

The supreme court on January 11,2024 conjoined three important cases in this regard for the limitations on the claimants of insurance of the secondary victims arising from medical negligence. Paul and another v Royal Wolverhampton NHS Trust, Polmear and another v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed. The judgement narrowed the scope of the secondary victim to claim arising out to the negligence completely.

The rule that existed was the secondary victim not to eligible for compensation for their injuries was considered unreasonable in certain situations and in Alcock v Chief Constable of South Yorkshire, the law developed, permitted them to claim compensation under limited circumstances. This case related to the Hillsborough Disaster in which 97 people were killed and 400 sustained injuries as a result of severe overcrowding in the Hillsborough football stadium. In that case, 10 claimants, none of whom were the primary victims of the incident witnessed the events that killed their family members, caused them to suffer psychiatric injuries.

The court determined the criteria, in this famous case, that should be satisfied for a claim by a secondary victim;-

• there must be a close tie of love and affection between the claimant and the primary victim.

• the secondary victim must have been present at the scene of the accident or its immediate aftermath.

• the secondary victim must have perceived the incident with their own senses (rather than hearing about it from a third person).

• there must be physical and temporal proximity to the incident.

After the evolving of judgements and cases the courts came to the conclusion that the general legal principle, when considering such claims is that the law does not grant remedies to third parties for the effects of injuries to other people. However, without a duty of care being owed by a doctor to a patient’s family members, there can be no liability in relation to injuries caused to those family members brought on by witnessing injury or death because of the doctor’s negligence, because that may always end up in an ambiguity.

Accordingly, there is now very little, if any, scope for a secondary victim claim in the context of pure medical negligence and such claims are now reserved for personal injury claims arising from a distinct accident witnessed in close proximity by certain close `family members.

Dep't of Veterans Affairs, 2023 WL 2274617 (9th Cir. 2023)

The United States Court of Appeals for the Ninth Circuit reversed a district court's decision to dismiss a medical negligence lawsuit against the U.S. Department of Veterans Affairs (VA). The Ninth Circuit found that the VA had a duty to provide competent medical care to the plaintiff, and that the VA's breach of that duty caused the plaintiff's injuries.

The plaintiff, a veteran, alleged that he suffered serious injuries as a result of the VA's failure to properly diagnose and treat his cancer. The VA argued that it was not liable for the plaintiff's injuries because it was not a "health care provider" under the Federal Tort Claims Act (FTCA). The FTCA waives the sovereign immunity of the United States government for certain tortious acts, but only if the act was committed by a "federal employee acting within the scope of his office or employment, based upon the exercise of or the failure to exercise a discretionary function or duty."

The Ninth Circuit found that the VA was a "health care provider" under the FTCA because it provided medical care to the plaintiff. The court also found that the VA's failure to properly diagnose and treat the plaintiff's cancer was not a discretionary function. The court reasoned that the VA's duty to provide competent medical care was a mandatory duty, and that the VA's breach of that duty was not a matter of discretion.

The Ninth Circuit reversed the district court's decision to dismiss the lawsuit and remanded the case to the district court for further proceedings. The Ninth Circuit's ruling is significant because it expands the scope of the FTCA to include medical negligence claims against the VA. The ruling also makes it clear that the VA's duty to provide competent medical care is a mandatory duty, and that the VA's breach of that duty is not a matter of discretion.