New decision on psychiatric injury claims

In July last year, we wrote an article about whether you can bring a claim if you see a loved one being injured or passing away.  These are called secondary victim claims, as the person bringing the claim was not the patient or directly involved in the accident (called the ‘primary victim’).  On 5 February 2021, there was a further court decision on this issue: L Polmear and M Polmear v Royal Cornwall Hospitals NHS Trust [2021] EWHC 196 (QB).

BACKGROUND TO POLMEAR DECISION

To understand the decision in Polmear, it is important to look first at the appeal case of Paul v The Royal Wolverhampton NHS Trust.

In this case, Mr Paul had a heart attack in front of his two daughters and passed away.  Understandably, this was very traumatic for them both and they developed psychiatric injuries.  It was argued that Mr Paul had been negligently discharged from hospital 14 months earlier after attending with chest and jaw pain. The hospital hadn’t picked up that these were symptoms of a heart condition. Had Mr Paul been appropriately treated, it was argued he would not have passed away.

Mr Paul’s daughters brought claims for their psychiatric injuries. The hospital Trust applied to Court to have their claims struck out to prevent them continuing. In the Court’s first decision, Mr Paul’s daughters were told that they didn’t meet the strict legal criteria to claim as ‘secondary victims’ . The hospital Trust argued that in order to meet the criteria, the girls would have needed to witness the negligent failure to diagnose their father’s heart condition (which they had not), and the negligent failure would have needed to be a sudden shocking and horrifying event (which it was not). Mr Paul’s daughters appealed the decision, and they were successful.  The appeal judge decided that a claim doesn’t arise until the mistake has had a physical, external impact on the primary victim.  Therefore, if it was agreed that Mr Paul’s heart attack was the first time the hospital’s mistake had caused a visible effect, then this was the event that his daughters needed to witness in order to bring a claim, not the failure to treat his heart condition in hospital.

As will be important when looking at the decision in Polmear, the appeal judge also said that, even if some injury (‘actionable damage’) had been caused before Mr Paul’s collapse, this would not necessarily prevent a claim, as long as it was not an ‘event’ in the natural sense of the word.

FACTS AND JUDGMENT IN POLMEAR

Mr and Mrs Polmear’s 7 year old daughter Esmee passed away on 1 July 2015 after the Royal Cornwall Hospitals NHS Trust failed to diagnose her medical condition (pulmonary veno-occlusive disease) in January 2015.

For approximately 12 – 18 months, Esmee had experienced regular episodes where she was unable to catch her breath, looked pale, would start to turn blue, had cold hands and would almost pass out.  These episodes lasted approximately 30 – 60 minutes and increased in frequency over this period.  Esmee was referred to the hospital and saw a paediatrician.  They performed an ECG (a test to check Esmee’s heart rhythm) for 24 hours, despite Esmee’s mum requesting it last for a week, as the episodes weren’t happening daily.  The hospital did not agree.

The result of the ECG was normal and Esmee’s parents were reassured. However, Esmee’s episodes continued and she then started vomiting after them.  Her parents requested a second opinion but before this could take place, she collapsed at school.

Esmee’s parents were called to the school and saw her lying on the floor and a member of staff providing first aid.  Her father attempted to give her mouth to mouth resuscitation.  Paramedics soon arrived and took over, before transporting Esmee to hospital with her parents.  The resuscitation attempts continued, but Esmee sadly passed away later that day, 1 July 2015.

The hospital admitted that Esmee’s condition should have been diagnosed and managed appropriately when she was assessed in the hospital in January 2015.

Her parents each brought a claim due to the psychiatric injury they suffered as a result of seeing Esmee collapse and pass away.  The hospital asked the court to strike out her parents’ cases , stating that they were bound to fail as Esmee’s episodes continued after she was discharged (i.e. there was actionable damage before she died, which they argued would prevent the parents from succeeding in a secondary victim claim).

The judge refused the hospital’s request, advising that he had to follow the decision in the case of Paul, above.  This meant that whilst he agreed with the hospital that the negligence had caused an injury before Esmee passed away, based on the law as it currently is, the parents’ claims could still succeed at trial.  Therefore, the strike-out was rejected.

However, the hospital requested permission to have the decision reconsidered in the Court of Appeal.  Permission to appeal was granted, reflecting how complex this area of law is.

WHAT NEXT?

The decision in Polmear brings some welcome news for claimants. Even if the primary victim has already suffered harm before the shocking and horrifying event that caused the secondary victim’s psychiatric injury, this does not prevent the secondary victim from bringing a claim.

However, this is a fast-moving area of law and the question will actually be reconsidered by the Court of Appeal. The outcome of the appeal will have an important and far-reaching impact on secondary victim cases. This is a complex area of law which doesn’t always seem very logical and can result in unfair decisions. We hope that a decision from the Court of Appeal, one of the highest courts in the country, can help provide families with much-needed clarity on their secondary victim claims.

DO YOU THINK YOU MAY HAVE A CLAIM AS A SECONDARY VICTIM?

Secondary victim claims can apply to lots of different people and situations.  We regularly act for parents, spouses and children who have witnessed a shocking injury to their loved ones as a result of an accident or medical treatment.

If you consider you may have a psychiatric claim, please contact our specialist team for advice.