Psychological Harm in Clinical Negligence Claims

KIRAN MADAN >

SQE Trainee Solicitor

Fri 19 May 2023 Psychological Harm in Clinical Negligence Claims

At Taylor Rose MW, we understand that psychological injuries can be at risk of being overlooked because they are often not immediately visible. Nevertheless, we understand that the effects of such injuries can be just as debilitating as physical injuries.

Kiran Madan, Trainee Solicitor in our Clinical Negligence department explains when compensation might be available for psychological injuries in clinical negligence claims.

We can help you obtain compensation for psychological injuries, and the future effect of the same. This can extend to provision for medical interventions such as counselling. We have therefore highlighted the different situations in which a claim may arise.

Consequential Psychological Harm

Compensation is available for psychiatric and psychological harm and/or trauma sustained as a result of clinical negligence which was caused at the same time as, or as a result of, physical injury. For example, we are able to help a client obtain compensation for Post-Traumatic Stress Disorder (PTSD) caused by suffering physical injuries resulting from surgical negligence.

In these situations, compensation will extend to the psychological impact of the clinical negligence. We therefore encourage our clients to speak out about the full extent of their injury, ensuring any hidden psychological harm is not overlooked.

Pure Psychiatric Harm

The legal rules become more complex when clients suffer a ‘pure psychiatric injury’, one not sustained alongside or because of any physical harm. There are two types of claimants in these cases, primary victims and secondary victims. The legal rules governing whether compensation is available differs between the two.

Primary Victims

Primary victims are those who were directly involved as a participant in the incident or event. Therefore, in most clinical negligence cases, only the patient will qualify as a primary victim.

To be able to recover compensation for the psychiatric injury, the claimant must have been at a foreseeable risk of physical injury by a clinician’s negligent conduct and the claimant must have suffered a recognised psychiatric injury. Recognised psychiatric injuries include:

Unfortunately, stigma surrounding mental health can make it too easy for victims suffering with psychiatric illnesses not attached to a bodily injury to stay silent. However, we are here to listen and may be able to help those suffering obtain compensation and further treatment.

‘Secondary Victims’

Secondary victims are those who have suffered a recognised psychiatric injury as a result of witnessing harm caused to another or fearing injury to a primary victim.

To qualify as a secondary victim, the psychiatric injury must arise from witnessing, with one’s own senses, an injury, death, or infliction of extreme danger or discomfort caused by negligence to another.

This area of law is restrictive, and further requirements must be met for a claim to arise, including:

The person affected must be someone with whom the claimant has a close tie of love and affection with, such as their child or spouse.
Moreover, it must be proved the psychiatric illness was caused by sudden and direct appreciation of a horrifying events, not by a gradual realisation, and the claimant must have been at the scene of the negligence or its immediate aftermath.
Also, there must have been sufficient closeness in time or space between the claimant and the event, and the psychiatric injury must have been foreseeable.

In clinical negligence, the above grounds are challenging to establish because the doctor and patient relationship usually exists on a 1:1 basis, but it is possible. For example, a clinical negligence secondary victim claim might arise from the facts which follow.

A clinician’s negligence causes an injury to a claimant’s infant baby immediately after birth in front of the mother. As a result, the baby suffers an injury and passes away, which causes the claimant to suffer a recognised psychiatric illness from witnessing the shocking events. Here, the mum may qualify as a secondary victim.

The above criteria were established by Alcock v Chief Constable of South Yorkshire Police [1991], a case which arose out of claims of psychiatric harm by those who witnessed others suffering injuries or death as a result of the Hillsborough Disaster in 1989.

Subsequent case law has potentially made recovering compensation in clinical negligence cases for secondary victims harder.

Taylor v A. Novo Ltd [2013] outlined that the relative must:

Witness the negligence itself.
Or its immediate aftermath
This must be done within sufficient space and time of the negligence occurring.

This made it difficult to establish a claim where the initial negligence occurs 1:1 between the clinician and patient, or where injuries or death may occur a significant amount of time after the initial negligence.

This need for closeness in time and space discussed above was challenged in Paul & Ors v The Royal Wolverhampton NHS Trust [2022] where leave for appeal to the Supreme Court has been granted. We hope the ruling of the Supreme Court in Paul will offer an affirmative decision either way for us to be able to confidently advise clients who are potential secondary victims of psychiatric harm.

As the Mind Charity rightfully point out, it can be hard to assert the above legal rights and speak out when one is unwell. Furthermore, we are aware that stigma and lack of awareness can push those suffering with psychological disorders to suffer in silence.

Our team of clinical negligence solicitors are here to listen and help you work out whether compensation may be available to you.

If you think you may have a claim, please do not hesitate to contact us at Taylor Rose MW on 020 3540 4444 or email Kiran directly by clicking the ‘contact us ‘ button.