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Written on 22nd April 2024 by Tara Pileggi-Byrne

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, or paralysis from spinal cord injury (SCI), 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.

How can physical harm from medical negligence cause psychological injury?

Alongside devastating physical injury, a traumatic hospital experience can cause less obvious or hidden psychological injuries as the patient struggles to come to terms with a new disability, significant lifestyle changes or fear of death.

Psychological injury arising from negligently caused physical harm may be harder for the injured patient to acknowledge or discuss. It may be unrecognised or remain untreated if the affected person feels unable to seek help. PTSD or other psychological 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 patient’s injury and the effect of that injury on their life, the impact of any psychological injury should not be overlooked. 

Can I claim compensation for psychological injury caused by medical negligence?

It is possible, as part of a clinical negligence claim for physical injuries, to recover compensation for psychological 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 psychological injury. It cannot be a psychological injury alone.

What is a primary victim?

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

What is a secondary victim?

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

Following recent changes in the law relating to psychological injury caused by medical negligence, only primary victims can claim compensation for psychological harm in medical negligence cases.

Is a mother whose baby suffers a brain injury during a negligently managed birth a primary or secondary victim? 

In 2018, we represented the mother in a birth injury case called YAH v Medway NHS Foundation Trust. This case was important because the court found that in birth injury claims the mother of a brain injured child was a primary victim and was entitled to compensation for her own psychological 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 a brain injury 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 heartrate 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 psychological 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 psychological injuries were caused by the traumatic birth, the negligent treatment and also the realisation of the extent of her daughter’s brain injury.

How much compensation can I claim for psychological injury from medical negligence?

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 psychological injury;
  • that our client is a primary victim;
  • the extent of the physical injury and that our client has suffered a psychological injury which has been professionally diagnosed according to accepted diagnostic criteria.

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 psychological 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 or a family member have suffered severe injury as a result of medical negligence or have been contacted by HSSIB/MNSI or NHS Resolution you can talk to a solicitor, free and confidentially, for advice about how to respond or make a claim by contacting us.