The future of secondary victim claims: "a medical crisis is not an accident"

In a landmark ruling the Supreme Court held (by a majority of six to one) that doctors do not owe a duty of care to the families of patients.

In Paul & Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 (and the conjoined appeals of Polmear and Purchase), the Court determined that in order to succeed a ‘secondary victim’ needs to have witnessed an accident. Witnessing a “death or manifestation of injury which is not caused by an external, traumatic event in the nature of an accident, but is the result of a pre-existing injury or disease”, is insufficient to give rise to the duty of care. For example, in Paul the deceased died of a heart attack in front of his two daughters over fourteen months after he received negligent cardiac care. The Claimants’ appeals in all three cases were dismissed.

Comment 

There is likely to be a significant reduction in the number of claims brought by secondary victims and the strongest cases will have the claimant as effectively a primary victim.

Insurers should review their book of such claims and consider applying to strike out any which fall outside the criteria, unless they are discontinued. For those which are due to an external traumatic event in the nature of an accident, modified ‘Alcock’ criteria still apply i.e.

• claimants must prove their presence at the scene of the accident (or immediate aftermath)
• have witnessed it and have a close tie of love and affection with the primary victim.

On causation a claimant need only demonstrate a causal connection between witnessing the accident and the illness suffered. It is no longer necessary to demonstrate the precise medical mechanism by which the illness was induced or that the event was horrifying and that there was a sudden shock to the nervous system. It also remains to be seen if any psychiatric injury cases are brought in the private sector on contractual grounds.

Read more about the decision in our insight.

Informed consent will remain a patient-centric process, but clinical judgment still has a role to play

Consideration of the ‘material risk’ of any treatment (a key ingredient of informed consent since the 2015 Supreme Court decision in Montgomery), often requires discussion of alternative treatments.

In McCulloch and others (Appellants) v Forth Valley Health Board (Respondents) [2023] UKSC 26, the Supreme Court considered what is a reasonable alternative. The Appellant’s late husband was admitted to hospital complaining of chest pains, nausea and vomiting. Whilst in hospital his condition improved. When seen by the consultant cardiologist he looked much better and denied having any chest pain. She therefore saw no reason to prescribe any additional medical treatment. In particular she did not regard it as appropriate to prescribe non-steroidal anti-inflammatory drugs (NSAIDs) because Mr McCulloch was not in pain at the time and there was no clear diagnosis of pericarditis.

Three days later he was discharged home, but on the next day he suffered a fatal cardiac arrest.

It was alleged that the cardiologist was in breach of her duty of care by failing to inform the deceased that NSAIDs were a possible treatment option for him. If he had been given that advice, he would have taken the NSAIDs and would not have died.

The Supreme Court determined that Dr Labinjoh was not obliged to inform the deceased that NSAIDs were a treatment option as her view was supported by a responsible body of medical opinion (the Bolam test).

Comment

The decision confirms that in practice there is still a role for clinical judgment in the assessment of treatment options. However, a doctor cannot simply inform a patient about the treatment option(s) the doctor prefers. The information given (or not) must be ‘Bolam compliant’ i.e. supported by a responsible body of medical opinion.

For the consent process to be ‘Montgomery compliant’ the doctor must consider the risks of any proposed treatment that are material to the patient. It remains essential that the discussion of risk issues and alternative treatments is fully documented.

Will there be more claims based on material contribution following the Court of Appeal decision in Holmes?

In the industrial disease case of Holmes v Poeton Holdings Ltd [2023] EWCA Civ 1377, the Court of Appeal reviewed the law in relation to causation and material contribution.

The Claimant alleged that his exposure to trichloroethylene TCE during the course of his employment had materially contributed to the development of his Parkinson’s disease. This was an ‘indivisible’ injury where once contracted its severity is not affected by the total amount of exposure to the agent.

Historically, case law suggested it was necessary to demonstrate that the injury was ‘divisible’ (i.e. where the severity is influenced by the total amount of the agent e.g. asbestosis), in order to establish causation using material contribution. In Holmes, the Court determined that in the case of an indivisible injury, proof of a material contribution (more than ‘de minimis’) is sufficient to establish liability.

The Court also provided guidance on how causation should be dealt with. Claimants need to demonstrate generic and individual causation. In this instance generic causation was whether exposure to TCE can cause/ materially contribute to Parkinson’s. Individual causation (required where generic causation cannot be established) would involve a claimant demonstrating features of their case “that are not reflected in the generic evidence that compel a finding of causation”.

The Defendant’s appeal was allowed as there was insufficient evidence that the tortious exposure of the Claimant to TCE had caused or materially contributed to his disease. Demonstrating an increased risk of Parkinson’s was insufficient to establish liability.

Comment

Widening the pool of potential claimants to include those with an indivisible injury on its face suggests an increase in the number of claims – e.g. in cancer cases. However, claimants will need watertight expert evidence that demonstrates the scientific basis of the claim. They will still need to prove more than an increase in risk to show that the negligence made a material contribution to their outcome; a fairly high hurdle to overcome in most cases. Although Mr Holmes has not made an application for leave to appeal to the Supreme Court, we think it likely that at some point the Court will be asked to consider the law on causation and material contribution.

Dispute resolution: the focus will continue to be on “out of court” methods with litigation as a last resort

In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the Court of Appeal has confirmed a court can lawfully order a stay in proceedings and compel the parties to engage in a “non-court-based dispute resolution process”, subject to there being no impact on “…the Claimant’s right to proceed to a judicial hearing, and [it being] proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost”.

The Claimant had refused to engage in the Defendant’s complaints procedure and issued court proceedings. The Defendant sought a stay of proceedings, but this was refused in the High Court based on the Court of Appeal’s decision in Halsey (2004). In that case the court considered that compulsory ADR would amount to a violation of article 6 of the European Convention on Human Rights – the right to a fair trial.

The Defendant’s appeal was allowed. The Court determined that proceedings could be lawfully stayed provided there was no impact on the Claimant’s right to proceed to a judicial hearing and that it was proportionate in costs and time to do so.

Read the insight our experts put together on this case here.

Comment

It is likely that this decision will lead to more active case management by judges. Compulsory mediation is already required in the small clams track and it is likely to this will be expanded further.

Parties and their insurers should consider dispute resolution at all stages of a claim whether this is mediation, arbitration, early neutral evaluation, ombudsman schemes and maybe even complaints procedures as in this case, although in this case the Defendant’s scheme was its own i.e. not independent. Mediation is a key strategic pillar, which can be undertaken at any point, to rebuild relationships between the parties and resolve claims cost effectively. Technology will also continue to play a central role in how courts operate and we expect to see a continued increase in online mediation as well as Early Neutral Evaluation initiatives.

Medical Malpractice Insurance Forward View 2024

This article is part of Capsticks’ Medical Malpractice Insurance Forward View 2024. Read the other articles featured in this publication below:

• Increased use of ‘digital health’ will bring new challenges for developers, manufacturers, suppliers and users
• On the horizon
• Potential for much bigger Schedules of Loss in catastrophic injury cases
• New streamlined process for lower risk clinical trials may encourage more sponsors to conduct clinical trials in the UK
• Elite athlete welfare will remain a focus for claims litigation
• Early preparation will be key to managing the impact of the Personal Injury Discount Rate (PIDR) Review
• Major change to costs regime for lower value clinical negligence cases
  

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Aiming to be the firm of choice for medical malpractice insurers, we advise and support on all aspect of claims and inquests. 

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan or Chery Blundell.