Does a Duty of Care exist as between healthcare providers and a relative of a patient in a nervous shock claim?

Introduction:

In the recent High Court decision of Carmel Germaine v Mary Day [2024] IEHC 420, Ms Justice Egan dismissed the plaintiff’s nervous shock claim as she failed to satisfy all the criteria laid down in the Kelly v Hennessey case[1]. In this eagerly anticipated judgment, Ms Justice Egan was invited to explore whether a duty of care exists as between healthcare providers and a relative of a patient in a nervous shock claim. The defendant relied on the recent decision of the England and Wales Supreme Court in Paul v Wolverhampton [2024] UKSC1 (“Paul”) as supporting its argument that no duty of care exists as between a doctor and the relative of a patient. The Court did not go as far as adopting the approach laid down by the UK Supreme Court in Paul and held that “establishing a duty of care to relatives will always be a context driven analysis[2]”.

While the judgment did not establish a new legal precedent, it provides a detailed application of the law to the facts of the case, which can be instructive for future cases with similar circumstances. It serves as a significant reference point for the criteria and considerations relevant to nervous shock claims in the context of healthcare providers and their duty to relatives of patients.

The Test for Nervous shock:

Ms Justice Egan reaffirmed that the leading authority in nervous shock is Kelly v Hennessy [1995] 3 IR 253. In this case, Hamilton CJ set out the conditions that a plaintiff must satisfy to recover damages for nervous shock, namely:

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 they nervous shock was caused by a 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.

Ms Justice Egan also confirmed that the duty of care as between the plaintiff and the defendant under criterion 5 is to be determined by the test set out in Glencar Explorations Plc v Mayo County Council No 2 [2002] 1 IR 84 (“the Glencar test”). This test has been described as a four-stage test in which the elements necessary to establish duty of care are:

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.

The Germaine Judgment

In the Germaine case, the plaintiff claimed damages for nervous shock caused by the defendant’s delay in diagnosing her late husband’s lung cancer. The defendant admitted breach of duty in relation to the missed diagnosis. However, in respect of causation, it was established that an earlier diagnosis would not have led to any change in treatment and prognosis. Both parties accepted that the plaintiff was diagnosed with an adjustment disorder characterised by anxiety and depressive symptoms.

While Ms Justice Egan expressed great sympathy for the plaintiff in Germaine, she was unable to find in her favour as she did not satisfy criterion 2 and 3 of Kelly v Hennessey. In circumstances where the plaintiff did not satisfy criterion 2 and 3 of Kelly v Hennessy, she opined that the criterion 5 duty of care was not dispositive to this case. Despite this, she recognised the issue of being one of broad significance and her judgment explores the concept of proximity and how it might be assessed to "clearly identify the likely contours of future debate[3]".

In respect of criterion 2, Ms Justice Egan held that the plaintiff’s injury was not “shock induced in the sense that the expression has been interpreted[4]". There was no “sudden calamitous or horrifying event in the nature of an accident[5]”. Ms Justice Egan opined that "a sudden shocking event must involve a distinct change from what was there before[6]". The Court therefore concluded that the second criterion was not met.

In respect of criterion 3, Ms Justice Egan found that the plaintiff’s experts’ reports did not sufficiently prove that earlier diagnosis and treatment would have prevented the deceased’s symptoms from worsening. Additionally, the evidence indicated that the plaintiff would have experienced the adjustment disorder regardless of the timing or circumstances of her husband’s symptoms. The Court therefore concluded that the third criterion was not met.

Did the defendant owe the plaintiff a Duty of Care not to cause them a reasonably foreseeable injury in the form of nervous shock.

The defendant relied on Paul as supporting its argument that no duty of care exists as between a doctor and a relative of a patient. The UK Supreme Court in Paul held that relatives of patients who suffer from clinical negligence do not have a cause of action in nervous shock.

In addition to this, Paul excluded medical crises from the nervous shock paradigm and held that medical crises were in no way analogous to the kinds of accidents on which the nervous shock jurisprudence was based. Indeed, the Irish approach differs in this regard. Despite Kelly v Hennessy originating from a road traffic accident, it has been applied in several other contexts, including medical negligence actions. In this regard Ms Justice Egan referenced cases such as Courtney v Our Lady’s Hospital [2011] IEHC 226 (“Courtney”) and Barry v. HSE [2015] IEHC 791 as examples where the plaintiff has suffered a recognisable psychiatric illness by witnessing the injury or death of their loved one as a consequence of medical negligence.

In more recent jurisprudence, the Court ruled in Morrissey v HSE [2019] IEHC 268 that misreporting Mrs. Morrissey’s cervical smear did not lead to recoverable nervous shock for her husband due to the unsatisfied Kelly v Hennessey criterion 5. Similarly, in Mitchell v HSE [2023] IEHC 394, the Court declined to award damages, affirming the Morrissey decision, that no duty of care exists toward relatives participating in a screening program. While Ms Justice Egan acknowledged these cases, she observed that they both "concerned the cervical screening program and the more general question of whether health care providers owe a criterion 5 duty of care to relatives of their patients did not arise[7]".

In respect of whether the defendant owed the plaintiff a duty of care in this case, Ms Justice Egan noted that “the Irish authorities do not elucidate how one should assess proximity and hence criterion 5 duty of care in a case such as this[8]". Ms Justice Egan opined that it is “unclear whether, for the purposes of the bystander’s nervous shock claim, proximity should be assessed on broader negligence principles (as the defendant contends) or whether, alternatively, proximity bears a specialised meaning in this context[9]". The Court highlighted the specialised proximity considerations as being “relational, spatial and temporal proximity” or the “confluence of proximities[10]".

Ms Justice Egan applied both tests in assessing proximity in Germaine and held that no duty of care arose.

Assumed responsibility

The defendant contended that proximity as between a relative and a doctor is based upon an assumption of responsibility on the part of the doctor for the health and well-being of the relative specifically (as opposed to the patient). The plaintiff argued that the consultant had, or ought to have had her in mind at all times and therefore owed her a duty of care as she attended all of the deceased medical consultations with him and received an open disclosure letter setting out the errors in the care and offering condolences and apologies. The Court held that the plaintiff’s attendance at medical consultations and the receipt of an open disclosure letter were insufficient to demonstrate that the consultant had assumed responsibility for the health or well-being of the plaintiff. Therefore, no duty of care arose.

Specialised Proximity

She considered the specialised proximity considerations of relational, spatial and temporal proximity to the facts of the case and ultimately held that proximity and foreseeability alone do not give rise to a duty of care. In this regard, she noted “doctors must also be taken to know that their patients’ relatives might foreseeably be negatively impacted by witnessing the result of clinical negligence on the doctor’s part. If these factors alone established not only proximity but also a duty of care, the number of potential plaintiffs in a medical negligence action could be multiplied by the number of potentially impacted family members[11]".

Ms Justice Egan observed the Glencar test and reiterated that the Court must consider factors beyond reasonable foreseeability and proximity in deciding whether a duty of care arises. The Court must also consider whether it is reasonable to impose the duty of care contended for. Ms Justice Egan held that the plaintiff’s contention that the defendant was under a “duty to shield her from the psychological impact of witnessing her husband’s deterioration in an unprepared manner[12]" was not a reasonable duty to impose in this case. Furthermore, in this regard she noted that “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[13]".

The Court also opined that “the further one moves from the consequences of the original clinical negligence the less likely are the circumstances to be within any potential duty of care based on the doctor patient relationship[14]". She distinguishes the Germaine case with the Courtney case. In Courtney, the plaintiff succeeded in her claim for nervous shock as she witnessed the death of her young daughter as a result of a negligent failure to diagnose meningitis. The Court noted that on the facts of Courtney, the defendant hospital was able to respond to and control the events causing the plaintiff’s psychiatric injury. In other words, there was a direct causal link between the defendant hospital’s negligence towards her daughter and the psychiatric injury suffered by the plaintiff. She describes the Germaine case on “the other end of the spectrum[15]" with reference to Courtney.

Conclusion:

The case of Germaine did not set a new precedent in the law of nervous shock claims. Instead, it reaffirmed and applied the existing legal principles established in Kelly v Hennessy. The Judgment also reasserts that the Glencar test must be relied upon when assessing criterion 5, the duty of care.

In distinguishing the facts of Germaine with the Courtney case, the Court acknowledged that a duty of care to a patient’s relative can exist in some claims arising from care in a medical setting. However, the risk of psychiatric illness in “witnessing a deterioration in its patients health in an unprepared manner” was not a risk the defendant “ought to have in their reasonable contemplation[16]" in this claim.

Ms Justice Egan’s decision in this case serves as a reminder of the stringent requirements that must be met for such claims and underscores the challenges in expanding the scope of duty of care in nervous shock cases. This Judgment illustrates the careful balance courts must maintain between acknowledging the suffering of relatives and maintaining reasonable limits on the scope of duty of care to prevent a “wide and uncontrolled[17]" expansion of liability.

[1] Kelly v Hennessy [1995] 3 IR 253

[2] Paragraph 144 of the Judgment

[3] Paragraph 18 of the Judgment

[4] Paragraph 14 of the Judgment

[5] Harford v Electricity Supply Board [2022] 2 IR 541

[6] Paragraph 40 of the Judgment

[7] Paragraph 5 of the Judgment

[8] Paragraph 16 of the Judgment

[9] Paragraph 16 of the Judgment

[10] Paragraph 126 of the Judgment

[11] Paragraph 137 of the Judgment

[12] Paragraph 17 of the Judgment

[13] Paragraph 139 of the Judgment

[14] Paragraph 144 of the Judgment

[15] Paragraph 146 of the Judgment

[16] Paragraph 143 of the Judgment

[17] Paragraph 139 of the Judgement