Thursday, 13 August 2015

Two more secondary victim claims in clinical negligence cases

The High Court and Court of Appeal have recently considered again the application of the secondary victim (SV) ‘control mechanisms’ to claims arising from clinical negligence. Please see the previous post “Wild” for a recap of the law.

Here, as a result of a negligently performed hysterectomy, C’s wife developed septicaemia and peritonitis, and was readmitted. C witnessed her condition deteriorate; she underwent further surgery and spent some weeks in intensive care.

C brought a claim as a secondary victim on the basis of his having witnessed two specific episodes (para[3]):

  • (a) At about 5.00pm on 18 July, shortly before she underwent emergency exploratory surgery, he observed her connected to various machines, including drips, monitors etcetera;
  • (b) Sometime on the following day he observed her in her post-operative condition. She was unconscious, connected to a ventilator and was being administered four types of antibiotic intravenously. Her arms, legs and face were very swollen. Pressure pads were in place to keep the blood in her legs flowing. Three years later Mr Ronayne described his wife’s then appearance to a consultant psychologist, Dr Eileen Bradbury, who gave evidence at trial, as resembling the “Michelin Man.”

The matter succeeded before HHJ Gore in Liverpool who found that C suffered from a psychiatric illness (but rejected his case that he had suffered PTSD). On appeal it was conceded by D that the Claimant had suffered an Adjustment Disorder. The appeal considered (a) whether the event was “horrifying” and (b) whether the appreciation of the event (i.e. ‘shock’) caused C’s psychiatric illness.

Importantly the Court of Appeal said this about diagnosis: “close attention to diagnostic criteria is… likely in this field to be of assistance in resolving what are often complex questions of causation.”

In upholding D’s appeal the court found that there was no ‘seamless tale’ (as there was in Walters); there was therefore no sudden appreciation of an event, but a ‘gradual realisation’ (para [40]):
At each stage in this sequence of events the Claimant was conditioned for what he was about to perceive. Before first seeing his wife connected to drips, monitors etc he knew, of course, that she was in hospital, and that that was because she was not recovering as expected from her operation and was running a high temperature”.

Secondly the court found that the events were not ‘horrifying’ and it is worth setting out the whole paragraph on this point as it is an important one (on which many such cases are likely to turn):
“Both on the first occasion and on the second the appearance of the Claimant’s wife was as would ordinarily be expected of a person in hospital in the circumstances in which she found herself. What is required in order to found liability is something which is exceptional in nature. On the first occasion she was connected to monitors and drips. The reaction of most people of ordinary robustness to that sight, given the circumstances in which she had been taken into the A. and E. Department, and the knowledge that abnormalities had been found, including a shadow over the lung, necessitating immediate exploratory surgery, would surely be one of relief that the matter was in the hands of the medical professionals, with perhaps a grateful nod to the ready availability of modern medical equipment. The same is more or less true of her swollen appearance on the second occasion. There is I think a danger of the “Michelin Man” epithet acquiring a significance greater than it deserves. The Claimant was conditioned to see someone from whom a litre of abscess had been drained and whose life was in grave danger. The pressure pads, routine medical equipment, no doubt contributed to the swollen appearance. I can readily accept that the appearance of Mrs Ronayne on this occasion must have been both alarming and distressing to the Claimant, but it was not in context exceptional and it was not I think horrifying in the sense in which that word has been used in the authorities. Certainly however it did not lead to a sudden violent agitation of the mind, because the Claimant was prepared to witness a person in a desperate condition and was moreover already extremely angry” [emphasis added]

In this case Mrs Owers suffered a stroke which went undiagnosed by the Defendant. Breach of duty was proven but causation was not.

Although the Judge found that the SV had suffered PTSD as a result of D’s breach of duty,  the SV claim was dismissed because the events were not ’horrifying’. The court noted that the bar was set high for such claims ([150]).

The SV had relied upon the following events for his claim ([126] – [128]):
… his wife was deteriorating in front of him and it was if they were being ignored. He felt that something should be happening and his fear was that if she deteriorated further and faster it would be too late. … By 11:30 – 12 noon C1 could make noises but not speak properly…
when they left Medway C1 could not get into the wheel chair and he could not do it without the assistance of his father…
Later on the drive to Darent Valley Hospital she deteriorated further. He said he could hear her choking. She could not alert him to the fact that something was wrong because she could not move or speak. He said this was the worst moment. He thought she was dying. He had to remove a bit of biscuit from her mouth because she could not swallow it. She was slumped in the front seat, seemingly lifeless and choking, with her head on one side and her eyes wide open. She was panicking. [I find that this incident of choking did happen. She may well not have been able to swallow something as large and hard as a biscuit.] [emphasis added].

However the court found that:
[the events] were not “horrifying” as judged by objective standards and by reference to persons of ordinary susceptibility. They were not wholly exceptional. His wife was in the throes of a severe illness and C2 should have seen her admitted and looked after (irrespective of the eventual outcome)
(footnote: I take account of the fact that C2 suffered PTSD, which is an indicator (but not determinative) of a sudden shocking event. Also the psychiatric evidence shows that C2 was more vulnerable than the average person to developing PTSD.)

 After the deterioration of 09:40 he not only saw a failure properly to diagnose and treat, but also the negligent discharge of his wife who was by then, on any account, very seriously ill. In the aftermath, which should have been avoided had the Defendants acted non-negligently, he perfectly understandably gave her a biscuit to eat and witnessed her choking upon it. [emphasis added]

Both of these judgements provide helpful guidance on the kinds of events that will be considered horrifying enough to meet the Alcock control mechanism: ‘Ordinary’ treatment which is “expected in the circumstances” will clearly not suffice.

Perhaps one can see why Ronayne failed, given that the primary victim was receiving treatment and simply had the appearance that many in hospital have.

Owers seems a very different case, with the primary and secondary victim seeking treatment to no avail, and the SV then witnessing his wife’s very serious deterioration and choking, in their car, to the point that he feared she would die. That is certainly not the same as witnessing someone being treated in a hospital bed attached to machines and wires.

However the sight of Mr Owers’ wife choking and unable to speak was not considered to be ‘horrifying’ because it was not “wholly exceptional His wife was in the throes of illness”. That is despite diagnosis apparently being important, and his having suffered PTSD.

In the context of an individual suffering a stroke, those symptoms are of course not ‘wholly exceptional’ (i.e. they are expected as a result of the condition).  However they were sufficiently distressing to cause Mr Owers to suffer PTSD; surely most ordinary members of the public would consider them to be exceptional things to witness.

It is difficult to see why, simply because symptoms are part of the natural course of a condition – and despite their causing PTSD – they should not be ‘horrifying’. On that analysis it is hard to see how any medical condition could give rise to a secondary victim claim, as in almost all cases the symptoms (however distressing) are not going to be ‘exceptional’ in the context of whatever condition is suffered.

Consider two recent cases on the issue:
  •         Walters, where the Claimant’s condition was not said to be wholly exceptional in medical terms, (though preventable) but was horrifying for the Claimant to witness and experience. That claim succeeded. What distinguishes that from Owers?

  •          Wild (though perhaps producing an unfair result) is a proper application of Alcock: There was no horrifying event, only a gradual realisation. “knowledge of the death” was the cause of SV’s psychiatric illness. That claim rightly (at least in terms of the control mechanisms) failed.

The control mechanisms were intended to prevent limitless claims by unrelated bystanders, and to limit claims to those caused by witnessing horrific scenes (those with sufficient proximity). Whilst one can understand that the event in Ronayne was perhaps not “horrific” by objective standards, the decision in Owers, it seems to me, is too narrow a reading of the Alcock mechanisms.

There is a circular logic in arguing that ‘expected’ symptoms cannot be horrific: Surely all symptoms are, by definition, expected as a result of whatever condition or injury is suffered and this would mean that no secondary victim claims could succeed.

Whilst it seems fair to say that where a primary victim is receiving treatment for whatever condition they are suffering, it would be difficult for that treatment to be “horrific” (as in Ronayne) it is difficult to see why Mr Owers’ fear of his wife’s death, witnessing her choking, and the helplessness he experienced (which caused PTSD) was not.

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