Medical Negligence – Do health care providers owe a duty of care to the relatives of their patients?

There have been many cases where a relative of a patient has claimed to have suffered nervous shock due to a medical practitioners negligence. This Blog looks at where the law in respect of this point currently stands.

Nervous shock claims arise in the context of psychiatric injury suffered by an individual due to witnessing or experiencing a traumatic event caused by another’s negligence.

Background

The leading authority on nervous shock in Ireland is the case of Kelly v. Hennessy[1]. In that case, the plaintiff was told over the phone that family members had been in a serious car accident and immediately afterwards saw them in hospital. The plaintiff suffered post-traumatic stress disorder. The case sets out the following conditions which a plaintiff must satisfy to recover damages for nervous shock (“the Kelly v. Hennessy criteria”):

1. A plaintiff must establish that they suffered a recognisable psychiatric illness;
2. A plaintiff must establish that their recognisable psychiatric illness was shock-induced;
3. A plaintiff must prove that the nervous shock was caused by the defendant’s act or omission;
4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff; and
5. A plaintiff must show that the defendant owed them a duty of care not to cause them a reasonably foreseeable injury in the form of nervous shock.

There have been claims where plaintiffs have been successful in obtaining damages for nervous shock where they showed that they had suffered a recognisable psychiatric illness by witnessing the injury or death of their loved one as a consequence of medical negligence[2]. However, in Morrissey v. HSE[3],the Court determined that the negligent misreporting of Mrs. Morrissey’s cervical smear did not give rise to recoverable nervous shock of her husband because Kelly v. Hennessy criterion 5 was not satisfied – namely that Mr. Morrissey had not proven that the defendant owed him a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock. This arose in respect of the cervical screening programme and did not address the broader question of whether health care providers owe a duty of care to the relatives of their patients.

Recent Case Law – Carmel Germaine v Mary Day

It is clear that these claims are complex, some of the complexities were recently considered by the High Court in Carmel Germaine v Mary Day[4] (“Germaine”).

The case of Germaine involved a claim brought by Carmel Germaine, a widow who alleged she suffered nervous shock following her husband’s death from lung cancer. There was no dispute in respect of breach of duty which was admitted in relation to a delay in diagnosis of lung cancer. Sadly, an earlier diagnosis would not have changed the prognosis so the delay was not causative of the deceased’s death from lung cancer.

The plaintiff’s claim was dismissed by the High Court based on the principles of Kelly v Hennessy.

Kelly v. Hennessy criterion 1: recognisable psychiatric illness

The Court accepted that the plaintiff suffered an adjustment disorder.

Kelly v. Hennessy criterion 2: Is the plaintiff’s psychiatric illness shock-induced?

The plaintiff alleged that her adjustment disorder was ‘shock- induced as it resulted from witnessing the sudden and frightening deterioration of the deceased’s condition’.

The Court ruled that the plaintiff’s injury was not “shock induced” and that in fact the “deceased’s deterioration and the plaintiff’s appreciation that medical assistance was necessary were part of a continuum – a gradually unfolding state of affairs leading to a dawning realisation”.

Kelly v. Hennessy criterion 3: Was the plaintiff’s nervous shock caused by a defendant’s act or omission?

The Court  was not satisfied that ‘but for’ the defendant’s breach of duty, the plaintiff would not have suffered nervous shock.

Kelly v. Hennessy criterion 4: the nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff.

No issue was raised in argument as to compliance with this criteria.

Kelly v. Hennessy criterion 5: Did the defendant owe the plaintiff a duty of care not to cause her a reasonably foreseeable injury in the form of nervous shock?

The Court noted that the in order to consider criterion 5 it was necessary to consider the test set out in Glencar Explorations Plc v Mayo County Council No.2[5] (“Glencar”)

Glencar Test

This test consists of four elements which are all necessary to establish duty of care:

1. reasonable foreseeability
2. proximity of relationship
3. the absence of countervailing public policy considerations; and
4. the fairness, justice and reasonableness of imposing a duty of care.

In Germaine the Court accepted that the defendant should have foreseen that a want of care in diagnosing the deceased’s cancer could lead to grave consequences for the deceased and to consequent psychiatric injury to his wife, the plaintiff. The Court in Germaine considered the UK Supreme Court decision Paul v. Wolverhampton NHS[6]  (“Paul”) which excludes medical crises from the nervous shock sphere and holds that due to a lack of proximity doctors do not generally owe relatives a duty of care.

In respect of proximity the Court in Germaine held that irrespective of how proximity is interpreted, there was no duty of care between the defendant and the plaintiff. The Court held that the plaintiff could not satisfy Kelly v. Hennessy criteria 2, 3 or 5 and so her claim in nervous shock failed.

Where do things stand now?

The decision in Germaine still leaves it open to the Court to decide whether a duty of care is owed to bystanders by healthcare providers.

The Court in Germaine noted that ‘establishing a duty of care to relatives in a particular case will always be a context driven analysis’. In general, the Court stated that it is reasonable to hypothesise that the further away from the consequences of the original clinical negligence the less likely the circumstances are to be within any potential duty of care based on the doctor patient relationship. However, the Court also discussed the possibility of cases where there may be a “systems failure” in the provision of a public health service which “might more readily support a finding of proximity and also duty of care as between the hospital and the relative in question”.

It remains to be seen whether the Irish Courts will follow the Supreme Court of England and Wales Paul decision, which held that in general doctors do not owe a duty of care to the relatives of their patients.

While this means that there is currently uncertainty it is helpful to know that when the time comes for the Court to determine these issues it is the criteria set out in Kelly and Glencar that will likely guide the Court in coming to a decision.

 [1] [1995] 3 IR 253

[2] Courtney v. Our Lady’s Hospital Ltd & Ors [2011] IEHC 226, Barry v. Health Service Executive [2015] IEHC 791

[3] [2019] IEHC 268

[4] [2024] IEHC 420

[5] [2002] 1 IR 84

[6] [2024] UKSC 1

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