Another Nail In The Coffin For Secondary Victim Claims

Timothy Owers (as administrator of the Estate of Karen Owers) & Anor v Medway NHS Foundation Trust and the Secretary of State for Health (Formerly Medway Community Healthcare NHS Trust) [2015] EWHC 2363 (QB)

The recent decision of Stewart J in Owers provides a blow to secondary victim claims and augurs further shutting of the Court doors to secondary victim claimants. By underscoring the high bar necessary to satisfy all 4 of the requisite control mechanisms, the decision provides further proof of the increased reluctance to favour these types of claims in the clinical negligence context.

The decision also highlights the importance of causation and provides a valuable example of why defendants should not shy away from pursuing a causation defence, even in the context of admitted breaches of duty of care.

The case

The case concerns the events surrounding the admission, treatment and care provided to a patient (KO) at the Medway Maritime Hospital, Kent (the Trust) on 14 March 2010. It was agreed that on 14 March 2010, KO suffered a stroke and such diagnosis was not made by the Trust or its employees. Whilst she was admitted to the Trust hospital on 14 March 2010 with suspected stroke, she was seen by triage at 8:20am, stroke nurses and then assessed by a senior house officer, KO's condition fluctuated and no clear diagnosis reached. It was accepted that by 9:40am her condition deteriorated, yet the senior house officer failed to re-examine KO and she was discharged at 11:36am (which the Trust accepted was negligent). On discharge, due to her worsening condition KO's husband drove her to another hospital. She was eventually diagnosed with a basilar artery occlusion stroke, a rare type of stroke resulting from vertebral artery dissection. Unfortunately, by the time diagnosis was reached and treatment administered she had deteriorated significantly, became seriously disabled and sadly died in 2014.

The Court was required to consider 2 issues: whether the Trust was liable to KO for pain, suffering and loss of amenity where the Trust had admitted that it had breached its duty of care to KO in respects of the care provided at A&E but denied causation; and whether KO's husband (TO) could succeed on a secondary victim claim against the Trust for psychiatric harm allegedly caused by the Trust's failure to properly diagnose and treat his wife.

Causation: The defence at its best

The Trust had admitted that the failure for any doctor to examine KO...