Can bereaved families sue doctors?
Supreme Court to rule on psychiatric injury resulting from clinical negligence
Wilkinson v Downton, decided by the High Court in 1897, is the one ruling on nervous shock that law students of my generation remember.
Thomas Wilkinson was landlord of the Albion public house in Limehouse, London. One day in 1896, he left his wife to manage the pub while he went off to the races. Downton, a regular at his pub, decided to play a cruel practical joke on Mrs Wilkinson. As the judgment records, Downton told her that her husband, “while returning in a wagonette with some friends from the races”,
was smashed up in an accident, and was lying at The Elms at Leytonstone with both legs broken, and that she was to go at once in a cab with two pillows to fetch him home.
All this was false. The effect of the statement… was a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity to her as well as expense to her husband for medical attendance.
A jury awarded Mrs Wilkinson damages of £100, plus 1s 10½d (nearly 10p in today’s money) to cover railway fares. The jury’s verdict was upheld by Mr Justice Wright. History does not record whether Downton ever managed to come up with such a large sum of money.
Psychiatric injury
The law has moved on since 1897 — and so has medical science. Perhaps there will be further developments on Thursday when the UK Supreme Court rules on three cases of psychiatric injury, as nervous shock is now called.
In each case, doctors had failed to diagnose a life-threatening condition. As a result, the primary victim suffered a traumatic death. Claims for psychiatric injury were brought by close relatives, referred to as secondary victims. Could they recover compensation for what they had been through? The question in each case was whether the necessary legal proximity existed between the defendant and the close relative.
Negligence is judge-made law. It’s for the courts to decide how far it should go — though parliament can always intervene. Whether or not the doctors were negligent in the three cases before the court has not yet been decided. At this stage, the judges are being asked to stop the claims going ahead on the grounds that they have no prospect of success.
Let’s look at each case in more detail.
Parminder Singh Paul
In November 2012, Parminder Singh Paul was admitted to New Cross Hospital in Wolverhampton after complaining of chest and jaw pain. He was discharged after three days. More than 14 months later, while out on a shopping trip with his daughters Saffron, then 12, and Mya, then 9, he collapsed and died from a heart attack. Needless to say, this was hugely distressing for his daughters to see.
His widow argued that the hospital should have carried out an angiogram. This would have revealed his coronary artery disease, which could then have been treated.
In 2019, a High Court master1 decided that the girls’ claims were too remote from the hospital’s alleged negligence. Master Cook said:
Mr Paul’s tragic death 14½ months after the negligent incident, in circumstances separated in space and time from the negligence I must assume occurred in the hospital, cannot possibly be said to be the “relevant event” for deciding the proximity required to establish liability under the established control mechanisms.
“Control mechanisms” are the factors that govern proximity. They could be summarised in these circumstances as:
a family relationship between the claimant and the primary victim
injury resulting from a sudden shock to the claimant’s nervous system
claimant present when primary victim dies
claimant’s injury results from witnessing the death
relevant event is close in time to the death
Paul’s family appealed to a High Court judge against Cook’s strike-out ruling. Giving judgment in 2020, Mr Justice Chamberlain said the key question was “whether Mr Paul’s collapse from a heart attack, 14½ months after the allegedly negligent treatment, is capable of constituting a relevant event”. After reviewing past rulings, he concluded that “the fact that the event occurred 14½ months after the negligent omission which caused it does not, in and of itself, preclude liability”. The claim was reinstated.
Esmee Polmear
Esmee Polmear was seven years old when she collapsed at her school in Perranporth, Cornwall, and died in July 2015. She had a rare lung condition which affects about one in 10 million people.
Esmee’s father, Mark Polmear, was called to the school and found her lying on the floor with a member of staff providing first aid. He took over and attempted mouth-to-mouth resuscitation. Esmee’s mother, Lynette Polmear, ran to the school and saw Esmee lying on the floor with members of staff attempting resuscitation. She could see it was not working. Paramedics arrived and attempted resuscitation, which was witnessed by both claimants.
As a result of seeing Esmee’s collapse, the unsuccessful attempts at her resuscitation and then her death, Lynette Polmear developed post-traumatic stress disorder and major depression. Mark Polmear developed post-traumatic stress disorder and major depression with addictive behaviour.
Esmee had been seen by a paediatrician at the Royal Cornwall Hospital in December 2014 and was assessed during the following month. The reviewing paediatrician concluded that Esmee’s symptoms were likely to have caused by exertion. The hospital now admits that her condition should have been diagnosed by mid-January 2015.
Her parents’ claim came before Cook after he had been reversed by Chamberlain in the Paul case. Declining to strike the case out, Cook held that it was possible to identify a qualifying horrific event and that the horrific event did not have to coincide with or immediately precede the first actionable damage to the primary victim.
Evelyn Purchase
Evelyn Purchase, aged 20, died on 7 April 2013, from extensive bilateral pneumonia with pulmonary abscesses. Mahmud Ahmed, an out-of-hours GP at Holly Hall walk-in centre in Dudley, West Midlands, had examined her three days earlier but failed to diagnose her condition. Her mother Tara Purchase returned home to find Evelyn lying motionless on her bed with the house telephone in her hand, staring at the ceiling and not moving. Purchase attempted resuscitation in increasingly distressing circumstances, but this proved unsuccessful.
Purchase then found a missed call from Evelyn on her mobile phone together with a voice message. It turned out to be the sound of her daughter’s dying breaths. They continued for more than four-and-a-half minutes. When she heard this, Purchase ran out of the house and stood screaming in the street. The call had ended around five minutes before she found Evelyn lying motionless.
Purchase developed post-traumatic stress disorder, severe chronic anxiety and depression. She argues that Evelyn had severe pneumonia when seen by Ahmed and alleges that there was a negligent failure to properly assess and treat her daughter’s symptoms.
In a ruling delivered a month before Chamberlain’s decision, District Judge Lumb held that Tara Purchase’s claim was bound to fail and struck it out.
Court of Appeal
The two hospital trusts appealed to the Court of Appeal. So did Purchase. All three cases were considered together shortly before Christmas 2021. Less than a month later, judgment was delivered by Sir Geoffrey Vos, sitting with Lord Justice Underhill and Lady Justice Nicola Davies.
In each case, the appeal judges found in favour of the clinicians. They held that they were bound by an earlier Court of Appeal decision called Novo. But that case — and most other precedents — involved horrific events caused by accidents rather than clinical negligence.
Vos, the master of the rolls, said in his ruling a year ago:
If I were starting with a clean sheet, I can quite see why secondary victims in these cases ought to be seen to be sufficiently proximate to the defendants to be allowed to recover damages for their psychiatric injury. Since, however, this court is bound by Novo, it is for the Supreme Court to decide whether to depart from the law as stated by Lord Dyson in that case.
Unusually, the Court of Appeal gave permission for the three appeals to be heard by the Supreme Court. An extended panel of seven justices heard argument last May and have been considering the arguments since then.
What the Supreme Court has to decide can be summed up in a single sentence:
Can an individual make a claim for psychiatric injury caused by witnessing the death or other horrifying event of a close relative as a result of earlier clinical negligence?
The answer to be delivered on Thursday morning is anxiously awaited by the bereaved claimants in these tragic cases, as well as others similarly affected. It will also be of great importance to the medical profession — and its insurers.
Update 11 January: The appeals were dismissed by a majority of six to one, with Lord Burrows dissenting.
The court concludes that, while doctors owe a duty of care to protect the health of their patients, they do not owe a duty of care to members of the patient’s close family to protect them against the risk of illness from the experience of witnessing the death or medical crisis of their relative from a condition which the doctor has negligently failed to diagnose or treat.
The majority justices said:
There is no doubt that witnessing the death from disease of a close family member can have a powerful psychological impact additional to the grief and deep distress caused by the fact of the death. Whether that impact is damaging or may even help the grieving process must depend on many factors, including the vulnerability and circumstances of the individual who witnesses the event and the place, time and other circumstances in which the death occurs.
The experience of seeing a person die or discovering their dead body is rarer today than it once was. Most deaths in the United Kingdom now occur in hospitals or other institutions such as care homes. But although social attitudes and expectations may be changing, we would not accept that our society has yet reached a point where the experience of witnessing the death of a close family member from disease is something from which a person can reasonably expect to be shielded by the medical profession.
That is so whether the death is slow or sudden, occurs in a hospital, at home or somewhere else, and whether it be peaceful or painful for the dying person. We do not mean in any way to minimise the psychological effects which such an experience may have on the person’s parent, child or partner when we express our view that, in the perception of the ordinary reasonable person, such an experience is not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition.
The Court of Appeal’s order dismissing the claims was therefore upheld. The judgment is here and there is also a press summary.
A High Court master is a judge who deals with all aspects of a claim from its issue until the trial, which takes place either before a master or a High Court judge.
Presumably if these claims succeed this will create an exception to the limitation of damages for bereavement of £15,120 under the Fatal Accidents Act 1976, which limits claims by spouses or the survivor of a co-habiting couple, and cases where parents are claiming damages for negligence causing the death of their child.