Secondary Victim Claims: Psychiatric Injury in Clinical Negligence Cases

Watching someone you love die, or come close to it, because their illness wasn't picked up in time leaves its own injury. Families often ask us whether the law recognises that harm. Since January 2024, the answer has changed.

This guide explains what a secondary victim claim is, what the Supreme Court decided in Paul v Royal Wolverhampton NHS Trust, and what options families still have after a death or serious injury caused by negligent medical care.

Jan 2024

the Supreme Court’s judgment in Paul

The leading case is Alcock v Chief Constable of South Yorkshire Police (1992), which followed the Hillsborough disaster. It set out the conditions a secondary victim has to meet, including:

It must also have been reasonably foreseeable that someone in that position would suffer psychiatric injury. In practice, the threshold is high, and few claims get through it.

1992

What is a secondary victim?

A primary victim is the person directly harmed by negligence: the patient.

• a close tie of love and affection with the injured person, usually a partner, parent or child

• being present at the scene of the event, or its immediate aftermath

• psychiatric injury caused by witnessing that event directly, rather than being told about it later

The three families

• Paul. Two children watched their father die of a heart attack while out shopping. The claim was that a hospital had failed to investigate his heart 14 months earlier, which would have revealed treatable disease.

• Polmear. Parents watched their young daughter collapse and die. The trust admitted failing to diagnose the condition that killed her.

• Purchase. A mother found her daughter dying after a missed diagnosis of pneumonia.

In each case there was a gap between the negligence and the death the family witnessed.

The majority held that a secondary victim can only claim if they were present at an accident, or its immediate aftermath, caused by the defendant's negligence. An accident, in this sense, means a sudden external event that injures someone, or risks injuring them.

Witnessing a medical crisis is not enough. Where a relative suffers or dies from an illness that should have been diagnosed or treated, however traumatic that is to watch, there is no accident to witness, so the claim fails.

The ruling in one line

Behind the decision was the court's view that a doctor takes on responsibility for the patient's health, not for the health of the patient's family.

Two older requirements were dropped. The court removed the need to show a "sudden shock to the nervous system" and the idea that the event had to be "horrifying". It also disapproved the earlier case of Walters, which claimants had long relied on. What matters now is whether there was an accident, and whether the claimant was there.

Most secondary victim claims arising from medical care will now fail. If you watched a parent, child or partner deteriorate and die in hospital because their condition was missed, the law does not currently give you a claim of your own for the psychiatric harm that caused.

That is hard to hear, and many lawyers and campaigners disagree with it. One of the seven judges dissented. Any change now would have to come from Parliament.

But it is only one route among several, and closing it does not close the others.

Claims that are still open to families

✓ A claim for the person who died - Brought on behalf of their estate, covering the pain, suffering and losses they experienced before death.

✓ A dependency claim - For the financial support a partner, child or other dependant has lost.

✓ Funeral expenses and, for certain close relatives, a fixed bereavement award.

✓ A claim if you were also a patient - If the negligent care was owed to you too, for example during your own labour and birth, you may be a primary victim rather than a secondary one.

✓ A claim where an accident did happen - Where the harm came from a sudden external event you witnessed, the Alcock conditions may still be met.

Working out which of these applies is a job for a specialist solicitor, and it starts with the medical records.

Time limits apply

In England and Wales, you usually have three years to start a medical negligence claim. Where someone has died, that period normally runs from the date of death, or from when the family first realised the death may have been caused by negligent care.

Different rules apply to children and to people who lack mental capacity.

If you think you may be close to the deadline, get advice quickly.

Losing someone, or nearly losing them, to care that fell short is not something you should have to make sense of on your own. Medical Claim Direct will look at what happened and tell you honestly what can and can't be claimed, with your case handled by the specialist clinical negligence team.

✓ No Win No Fee. You won't pay anything upfront to start a claim.

✓ A free, unhurried conversation. No obligation, and no pressure to go ahead.

✓ England and Wales. We help families wherever they live in England and Wales.

We can help

If your family has been through a death or serious harm caused by medical care that fell short, talk to us. We'll listen, explain what the law allows and tell you honestly whether there's a claim, with your case handled by specialist clinical negligence team member.