Paul and Another v Royal Wolverhampton NHS Trust – A miscarriage of justice?

Should people who suffer psychological injury as the result of the death of a loved one after medical care or treatment goes wrong be able to claim compensation? In my view the answer is clearly yes, but the Supreme Court does not agree.

In a judgment handed down this week the Supreme Court has stopped secondary victim claims in their tracks. There are now only limited circumstances in which a claim such as this can be made.

The Court in

Paul and another v Royal Wolverhampton NHS Trust was considering whether a relative who suffers psychological injury following the death of a relative through negligence has a claim against the negligent party, such as a doctor.

The judgment dealt with 3 cases, heard together, where the claimants sought compensation for psychiatric illnesses caused by seeing the death of a close relative in distressing circumstances. In each case, the death was allegedly caused by the doctor or health authority’s negligence. The facts of each case were set out by the Court and I repeat them below:

The Cases

In the case of Paul, on 26 January 2014, while out shopping with his two daughters, aged 9 and 12, Mr Paul suffered a cardiac arrest and collapsed in the street. His daughters saw him fall backwards and hit his head on the pavement. They tried to call their mother on their mobile phones and to call an ambulance, which was eventually called by a passer-by. When their mother arrived, the daughters were taken to a nearby church. They heard their mother screaming their father's name. They came out and saw an ambulance crew put a foil blanket over their father and paramedics performing chest compressions on him. Mr Paul was taken by ambulance to hospital but was declared dead on arrival.

In this action Mr Paul's daughters were each claiming damages for psychiatric illness allegedly caused by witnessing these events.

Mr Paul's heart attack and death were caused by occlusion of a coronary artery due to atherosclerosis. Some 14 months earlier, on 9 November 2012, he had been admitted to the defendant's hospital complaining of chest and jaw pain. He was treated for acute coronary symptoms and discharged on 12 November 2012. The claimants alleged that the defendant was negligent in failing to arrange coronary angiography during Mr Paul's admission to hospital and that, had this been performed, it would have revealed significant coronary artery disease which would have been successfully treated by coronary revascularisation, in which case he would not have collapsed and died when he did.

Polmear

In August and September 2014 Esmee Polmear, then aged six, was seen by her GP with a history of strange episodes during which she could not breathe, appeared pale and turned blue after a few minutes. She was referred to a paediatrician at the defendant's hospital who saw her on 1 December 2014. In January 2015 some tests were carried out, but the consultant paediatrician wrongly concluded that Esmee's symptoms were likely to be related to exertion and failed to diagnose that they were caused by pulmonary veno-occlusive disease. The defendant admits that Esmee's condition should have been diagnosed by mid-January 2015.

On 1 July 2015 Esmee died from effects of this disease in distressing circumstances. Her parents, who are the claimants in this case, were present when she died. Because she had felt unwell her father had agreed to meet Esmee at the beach where she was supposed to be taking part on a school trip, to take her back to school if required. When he arrived, he found Esmee with a teacher and another pupil looking tired, pale and breathless. Esmee wanted to sit down but was encouraged to try to walk back to the school. At one point she stopped and vomited. She had to keep stopping to rest and her father then had to carry her. Her father left Esmee at the door of the school but shortly afterwards was called back and found her lying on the floor with a member of staff administering first aid. He took over and tried to give Esmee mouth-to-mouth resuscitation. She was not breathing. Esmee's mother ran to the school and saw her lying on the floor with members of staff attempting resuscitation which she could see was not working. Paramedics arrived and also tried unsuccessfully to revive Esmee. Both parents went with Esmee in an ambulance to hospital where she was declared dead.

Esmee's parents were each claiming damages for post-traumatic stress disorder and major depression developed as a result of their experiences on 1 July 2015. It is their case that with proper diagnosis and management Esmee would not have collapsed and died on that day.

Purchase

Evelyn Purchase died on 7 April 2013 at the age of 20 from severe pneumonia. Three days before, having been unwell for several weeks and having made two previous visits to her GP, Evelyn attended the out-of-hours clinic with her mother. She was examined by the defendant, Dr Ahmed. Evelyn had difficulty walking into the clinic as a result of weakness, dizziness and difficulty in breathing, which was rapid, shallow and noisy. Dr Ahmed failed to diagnose her condition and sent her home with a prescription for antibiotics and an antidepressant.

Evelyn's condition did not improve and on 6 April 2013 she was also complaining of heart palpitations. That evening her mother attended a pre-planned event in London with her younger daughter. She returned home at 4.50 am on 7 April 2013 and found Evelyn lying motionless on her bed with the house telephone in her hand, staring at the ceiling and not moving. Her skin was slightly warm and she looked alive but was not moving or blinking. The younger daughter called 999 and the family were advised to give Evelyn cardiopulmonary resuscitation. When the mother opened Evelyn's mouth to attempt mouth-to-mouth resuscitation, blood and bodily fluids spilled out of the mouth and nose. When paramedics arrived, their attempts at resuscitation were also unsuccessful and Evelyn was declared dead.

Evelyn's mother realised that she had a missed call and a voice message from Evelyn on her mobile phone. The voice message was the sound of Evelyn's dying breaths which continued for four minutes and 37 seconds. The call was timed at 4.40 am and ended approximately five minutes before her mother got home and saw Evelyn.

As a result of these events, Evelyn's mother developed post-traumatic stress disorder and severe chronic anxiety and depression for which she was claiming damages. It was her case that her daughter's death was caused by the defendant's negligent failure to diagnose and treat Evelyn's symptoms when he examined her on 4 April 2013.

It has to be said that the circumstances of each of these cases is tragic and it is difficult to see why the Supreme Court found as it did that the doctors owed no duty of care to the relatives.

I can think of other scenarios where a relative would make a claim. For example, I know from personal experience that sometimes there is a cancer misdiagnosis and a GP will fail to diagnose cancer before it has spread resulting in there being no treatment. I have personally experienced this with a relative who subsequently died when they could have lived longer had the cancer been detected earlier. In some cases where the person could have been treated and survived for many years, but instead tragically they die, surely there should be some compensation for the relative who suffers PTSD or depression on top of the normal reaction of grief? Also, if someone commits suicide after receiving sub standard mental health care, why should a parent or other family member not be able to claim for the psychological effect? Such events can cause deep psychological hurt.

Whilst being sympathetic on the one hand, on the other their Lordships said: ‘The common law does not recognise one person as having any legally compensable interest in the physical well-being of another. The law affords compensation to the victim but not to others who suffer harm in consequence of the victim’s injuries or death, however severely affected they may be.

’They said that a line for liability must be drawn somewhere and that wherever the line was drawn, some people who suffer what may be a serious illness in connection with another person’s death will be left uncompensated.

‘There is a rough and ready logic,’ they said, ‘in limiting recovery by secondary victims to individuals who were present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim.

The Court found that a doctor who treats a patient does not enter into a doctor-patient relationship with any member of the patient’s family. The judges add that the responsibilities of a medical practitioner do not extend to protecting members of the patient’s family from exposure traumatic experiences. ‘To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.’

Society has not yet reached a point where the experience of witnessing the death of a close family member ’is something from which a person can reasonably expect to be shielded by the medical profession’.

There was one chink of light in the form of a dissenting judgment, Lord Burrows said the appeals presented a ‘rare opportunity…to move the law forward…to a more satisfactory position’.

He said the relevant event should be treated as the death ‘not least because it was witnessing the death or its immediate aftermath that caused the psychiatric illness to the secondary victims’. The psychiatric illness as a consequence of the death was ‘reasonably foreseeable’ and so, there should be liability ‘because it is not in dispute that, once one treats the event as the death, all the established proximity or control factors are satisfied’.

He added: ‘One might argue that the approach I am adopting does not represent any development of the law but is merely the correct application of the existing law to new facts.

The decision is viewed by many as being too harsh. The law now restricts claims to those who physically witness the death of a loved one and suffer psychological injury in an actual accident.

I do not agree with the majority of the Court that a doctor does not enter into a relationship with the patient’s family. From my own experience the family are often frequently involved in every decision taken by the patient and often speak privately to the doctor and receive advice. They often receive counselling services from the NHS. When one person in a family have an illness like cancer this affects the whole family and it is fair to say that the whole family is receiving treatment. It seems to me that the Court is out of touch with society. If there was an opinion poll today, what would people say? I expect they would say that close family should receive compensation in these circumstances.

The Supreme Court ruling will result in a sense of injustice in the minds of many people suffering mentally from the untimely death of a relative caused by third party negligence.

Unfortunately, there is no appeal from this decision. We must await another case on different facts to challenge the decision which could take many years.