Who can claim compensation for psychiatric injury caused by medical negligence?

At Boyes Turner, our medical negligence lawyers specialise in high value compensation claims for clients who have suffered life-changing physical and neurological disability. Our clients’ injuries often involve brain damage at birth with lasting severe disability, paralysis from spinal injury, limb loss from amputation or lifelong pain and physical impairment from the effects of untreated cancer. Each of these injuries arose in unexpected or traumatic circumstances, as a result of medical mistakes.

‘Hidden’ psychiatric injury after medical negligence causes physical harm

Alongside devastating physical injury, a traumatic hospital experience can cause less obvious or hidden psychiatric injuries as the patient struggles to come to terms with a new disability, significant lifestyle changes or fear of death. Close family members can also suffer psychiatric injury from witnessing their loved one suffering life-threatening harm or unexpected death.

Psychiatric injury arising from negligently caused physical harm may be harder for the injured patient (or their affected loved one) to acknowledge or discuss. It may be unrecognised or remain untreated if the affected person feels unable to seek help. PTSD or other ‘nervous shock’ reactions can prevent healing and rehabilitation, restrict independence and mobility, reduce the ability to work and damage family relationships. It is, therefore, essential that when assessing the client’s injury and the effect of that injury on their life, the impact of any psychiatric injury should not be overlooked. 

Can I claim compensation for my psychiatric injury?

It is possible, as part of a clinical negligence claim for physical injuries, to recover compensation for psychiatric injuries. You must first establish that there has been negligent treatment and that you have suffered an injury as a result of that treatment.

To be eligible for compensation, the injury must be a physical injury (including a perceived risk of physical injury), or a physical and psychiatric injury. It cannot be a psychiatric injury alone. The approach to these types of claim differs depending on whether a person is considered a ‘primary’ or ‘secondary’ victim.

What is a primary victim?

Someone who has suffered foreseeable physical and psychiatric injuries from the events which took place is regarded as a ‘primary victim’. This means that they are entitled to recover compensation for their psychiatric injury and its financial consequences, as well as for their physical injury. In the context of clinical negligence claims, a primary victim is the patient who received the negligent treatment. 

What is a secondary victim?

A ‘secondary victim’ is someone who has suffered a psychiatric injury through witnessing and/or hearing a horrific and shocking event. A secondary victim is not directly involved in the traumatic situation.

Secondary victims need to meet the criteria laid down by the case of Alcock v Chief Constable of South Yorkshire [1992], which dealt with claims for psychiatric injury suffered by the families of those who died or were injured at Hillsborough Stadium. The family members claimed for their own psychiatric injuries which were caused by witnessing (rather than experiencing first-hand) the injuries to their loved ones during the disaster in 1989.

This case set out certain criteria which secondary victims must meet to succeed with their claim:

1. There must be a close tie of love and affection (i.e. a close relationship) between the injured person (witness) and the primary victim (directly suffering the harm).
2. The injured person has to have been at the scene of the event or present in the aftermath. 
3. The psychiatric injury must be caused by witnessing the horrific event, not by information being passed on from another person.

What is ‘nervous shock’?

Secondary victim claims are also known as ‘nervous shock’ cases, as secondary victims must also prove that they have suffered ‘shock.’ The Alcock case defined shock as involving ‘the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.” Psychiatric illness caused by the build-up of a series of incidents wouldn’t count as ‘nervous shock’. It is not enough to show upset or grief. For a secondary victim’s claim to succeed, they must demonstrate that they have suffered a recognisable psychiatric injury.

Primary victims do not need to show they have witnessed or heard a shocking event. 

Is the mother during a negligently managed birth resulting in brain damage to the baby a primary or secondary victim? 

Last year, we represented the mother in a case called YAH v Medway NHS Foundation Trust [2018]. This case was important because the court found that the mother of a brain injured child was a primary victim and was entitled to compensation for her own psychiatric injuries arising out of the traumatic birth.

Our client’s daughter was born in poor condition after being deprived of oxygen during her birth. She suffered brain damage and was later diagnosed with cerebral palsy. The defendant NHS Trust had admitted that the care during the labour and the birth was negligent and that as a result of the negligence, the baby was deprived of oxygen and suffered a physical injury.

During the trial, the mother told the court her recollection of the events surrounding her daughter’s birth. She explained that she was concerned when part way through her labour she was told by the midwife that her baby’s heartbeat was dropping. She recalled the fast and sudden actions of the medical staff and that as soon as her daughter was born she was taken away for specialist treatment.

The mother claimed that she had suffered a psychiatric injury, including an anxiety disorder and depression, as a result of the traumatic circumstances of her daughter’s birth.

The judge found that our client was a primary victim as she and her baby were legally one person at the time of the negligent treatment. Her psychiatric injuries were caused by the traumatic birth, the negligent treatment and also the realisation of the extent of her daughter’s brain damage.

If our client had been considered a ‘secondary victim,’ her claim would not have succeeded as, although the delivery of her daughter and the aftermath was ‘shocking and traumatic’, this did not amount to the ‘shock’ that is necessary for secondary victim claims.  As a primary victim, her claim succeeded as it was not necessary for her to establish ‘shock’. 

How much compensation could I receive?

To succeed with a claim we must first establish, with the help of medical experts where necessary:

• that there was negligent treatment
• that the negligent treatment caused a physical and/or psychiatric injury
• that our client is either a primary or secondary victim
• the extent of the physical injury and that our client has suffered sufficient psychiatric injury to meet the criteria as a primary or secondary victim

The amount of compensation that can be claimed will depend on the circumstances of each individual case and the effect of the injuries on our client.

Following psychiatric injury, we have helped clients recover compensation for:

• pain, suffering and loss of amenity suffered as a result of the injury;
• the costs of therapies, such as counselling, cognitive behavioural therapy;
• the costs of medication or private health care;
• the costs of treatment in the future to allow for periods of possible relapse; 
• the costs of travel expenses to and from GP or hospital appointments;
• loss of earnings;
• other financial losses caused by the physical and psychiatric injury.

If you are suffering with a psychiatric injury as a result of negligent medical treatment and would like to find out more about making a claim, contact us by email at mednegclaims@boyesturner.com.