In the High Court judgement of Germaine v Day, Egan J examines the intersection of the doctrine of nervous shock with medical negligence, and arrives at a similar position that was recently reached by the UK Supreme Court in Paul v. Wolverhampton NHS [2024] UKSC 1 (“Paul”), albeit via a somewhat different legal route.

 

The landmark decision of Kelly v Hennessy in Ireland established the criteria for nervous shock.  Hamilton CJ set out the conditions that 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.
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.

 

In the case of Germaine, a medical negligence claim was brought by the plaintiff, the widow of Thomas Germaine, whereby she sought damages for suffering nervous shock as a result of the circumstances leading to her husband’s death.

 

Background Facts

The deceased, Thomas Germaine, had organising pneumonitis, which was successfully treated, and he remained under surveillance for potential relapse. On 2 October 2018 the plaintiff accompanied him for a chest x-ray, which was reported as normal. However, an opacity in his right lung went undetected by the radiologist.  He was scheduled for a review the following October. Had this opacity been identified in October 2018, it was found that the deceased would have been diagnosed with incurable lung cancer.

The deceased’s health gradually declined between October and December 2018. His condition rapidly deteriorated during Christmas week, and he was diagnosed with high-grade poorly differentiated non-small cell carcinoma on Christmas Eve. He was hospitalised for several weeks and began radiotherapy.

He passed away on 14 February 2019 due to metastatic lung cancer. The plaintiff learned of the terminal illness in late January 2019 and asserted that she was not initially aware of her husband’s condition as she claimed he did not tell her.

 

Judgement

Ms Justice Egan held that although the plaintiff satisfied the first criteria of Kelly v Hennessy, she cannot satisfy criteria 2 and 3 and therefore the plaintiff’s case cannot succeed.  With respect to criteria 2, ‘the injury was not shock-induced’. It was also held that the defendant’s negligence did not cause the deceased’s deterioration.  Therefore criteria 3 cannot be satisfied.

Egan J examined criteria 5 and considered the complexities of this criterion.  The plaintiff contended that the defendant was under a duty to shield her from the impact of witnessing her husband’s deterioration in an unprepared manner. The Defendant disputed this, relying upon a recent decision of the Supreme Court of England and Wales, Paul, to suggest that healthcare providers do not owe a duty of care to the relatives of patients.  Egan J held that, even if there is a reasonable foreseeability of medical negligence, there is an insufficient proximity between a doctor and relatives to give rise to a duty of care. Egan J went on to explain, even assuming that both foreseeability and proximity of relationship were made out, it is not reasonable to impose on doctors a duty of care to patients’ relatives.

 

“A general requirement that a doctor consider the health of parties other than the patient is likely to give rise to unexpected consequences and to wide and uncontrolled liability.”

 

Egan J also indicated that a context driven analysis of each particular case is required to prove a duty of care. Egan J noted that Doctors must be taken to know that their patient’s relatives might foreseeably be negatively impacted by witnessing the result of a doctor’s clinical negligence.  Therefore, if contextual analysis is not required, and the knowledge of a doctor that a patient’s relatives may foreseeably be negatively impacted was sufficient to establish not only proximity but also a duty of care, there would be an exponential increase in the number of Plaintiffs in medical negligence actions. It was therefore held that the plaintiff failed to establish the proximity required and therefore the doctor did not owe the plaintiff a duty of care.

 

Egan J has not drawn a general conclusion on whether doctors owe a duty of care to relatives. However, similar to Paul, it seems that the circumstances where such a duty will be found to exist are limited in a medical negligence context. While Ireland does not have the same distinction between primary / secondary victims that is a key part of this area of law in the UK, the end position seems similar now in both jurisdictions.

 

For legal guidance and advice regarding medical negligence, please contact Kevin Hegarty or any member of our Healthcare team.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.