by Martha Wilson , Katie Nugent, Kevin Kelly July-11-2024 in Healthcare Law

GERMAINE v. DAY [2024] IEHC 420 

The High Court recently gave judgment in a claim for nervous shock arising from the death of the plaintiff’s husband.  In a considered decision in the case of Germaine v Day [2024] IEHC 420, the High Court examined the law applicable to nervous shock claims arising from alleged medical negligence, and – while expressing great sympathy for the plaintiff on her loss and injury – was unable to find in her favour. 

The defendant hospital failed to diagnose the plaintiff’s husband with cancer in October 2018 resulting in a missed diagnosis and he sadly passed away on 14 February 2019.  The plaintiff pleaded that between October 2018 and February 2019 she witnessed her husband’s deterioration which she said caused her to suffer a recognisable psychiatric illness. While the defendant admitted breach of duty in relation to the missed diagnosis, it was established that had the cancer been diagnosed in October 2018 it was already incurable at that time and an earlier diagnosis would not have led to any change in treatment or prognosis.  

 

TEST FOR NERVOUS SHOCK 

Ms Justice Egan reaffirmed that Kelly v. Hennessy [1995] 3 IR 253 is the leading authority on nervous shock claims in this jurisdiction and reiterated the criteria a plaintiff must satisfy in order to succeed in a claim for nervous shock: 

  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. 

 

THE INTERSECTION BETWEEN NERVOUS SHOCK AND MEDICAL NEGLIGENCE 

In its ruling, the High Court acknowledged that Kelly arose out of a road traffic accident but observed that the test had subsequently been relied upon in nervous shock claims arising from the death of a loved one as a result of medical negligence, referencing Courtney v Our Lady’s Hospital [2011] IEHC 226 and Barry v. HSE [2015] IEHC 791 as examples. However, Ms Justice Egan also noted the contrasting decision in Morrissey v. HSE [2019] IEHC 268, in which the Court held that a relative of a CervicalCheck claimant could not recover compensation for nervous shock because the fifth criterion in Kelly was not satisfied, and a similar judgment in Mitchell v. HSE [2023] IEHC 394.  

 

HIGH COURT DECISION 

 

The High Court held that the plaintiff’s case failed for the following reasons: 

 

1. The plaintiff could not establish that her recognisable psychiatric illness was shock-induced. 

In assessing whether the plaintiff’s psychiatric injury was shock-induced, the Court observed that the plaintiff witnessed her deceased husband’s deterioration over a period of several months and as such, her injury was not shock-induced within the meaning of the law. In analysing what constitutes a shock-induced injury, the Court cited the decision in Harford v. ESB [2022] 2 IR 541, stating that there was no “sudden calamitous or horrifying event in the nature of an accident”.  As such the plaintiff had failed to satisfy the second of the Kelly v Hennessy criteria. 

 

2. The plaintiff could not prove that the nervous shock was caused by the defendant’s admitted breach of duty.  

The plaintiff maintained that the sudden shocking event that triggered her recognisable psychiatric illness was the deceased’s deterioration in the period following the missed diagnosis in October 2018, and particularly on 23 December 2018.  The Court concluded that the defendant’s negligence did not, in this particular case, cause the deceased’s deterioration and on the contrary, this deterioration (and the plaintiff’s exposure to it) would have occurred in any event.  It was established on the evidence that the failure to diagnose the deceased’s cancer would not have had led to a different outcome since the cancer was already incurable in October 2018.  Additionally, the Court did not accept the plaintiff’s argument that her injury was caused by not learning of her deceased husband’s diagnosis at an earlier stage so as to allow her prepare for witnessing the deterioration in an prepared manner.  Ms Justice Egan therefore concluded the plaintiff did not satisfy the third of the Kelly v Hennessy criteria.   

 

3. The defendant did not owe a duty of care to the plaintiff in the circumstances of this case. 

Although the Court established that the plaintiff had not satisfied the second and third of the five criteria necessary to succeed in her action, in case she was wrong in that conclusion Ms Justice Egan went on to consider the fifth criteria – did the defendant hospital owe the plaintiff a duty of care not to cause a reasonably foreseeable injury in the form of nervous shock? 

The Court held that the test for whether a duty of care has been established as set out in Glencar Explorations Plc v Mayo County Council No. 2 [2002] 1 IR 84 is to be applied when considering whether a duty of care is owed in a nervous shock case.  The necessary elements to establish a duty of care, according to Glencar, are reasonable foreseeability, proximity of relationship, the absence of countervailing public policy considerations and the fairness, justice and reasonableness of imposing a duty of care.   

The Court identified that the duty of care the plaintiff alleged she was owed by the defendant hospital was in effect “to shield her from the psychological impact of witnessing her husband’s deterioration in an unprepared manner.”  Ms Justice Egan concluded that this was not a duty it would be reasonable to impose.  The risk in question was not one that a doctor ought to have reasonably contemplated when caring for patients, and to impose this duty would be over and above the duty that the doctor owed to their patient. 

 

OPEN QUESTIONS? 

The High Court was careful to distinguish between issues upon which it was necessary for it to determine in order to dispose of the action before it, and other general but important issues which arose in the case.  In respect of the latter, the Court explained “there is merit in setting the issues out clearly to identify the likely contours of future debate.” 

Ms Justice Egan specifically stated that the Court should only pronounce on the meaning of proximity in nervous shock claims and on whether healthcare providers owe a duty of care to the relatives of their patients in an appropriate case in which these issues squarely arise.  

In concluding that the duty contended for here was not a reasonable one to impose on the defendant hospital, it was not necessary for the Court to determine the degree of reasonable foreseeability and proximity that a plaintiff will need to establish in order to succeed in their action.  What is clear from the judgment, and the parties’ submissions, is that the notion of proximity is a particularly thorny issue in the context of claims for nervous shock brought by relatives arising from alleged medical negligence. 

The Court reflected on whether proximity in such cases should be assessed by reference to broader negligence principles (i.e. the requirement to establish a close proximate relationship between doctor and injured relative, an assumption of responsibility by the doctor for the health and wellbeing of the relative) or whether proximity has some special meaning in this context.  By way of example, the Court suggested a close proximate relationship between the patient and relative, and between the relative and the sudden shocking event caused by the medical negligence.   

The Court then went on to apply both potential approaches to proximity.    

The plaintiff had contended that the following factors illustrated that the doctor had assumed responsibility for her health and welfare, and as such she had the necessary degree of proximity: 

  1. She attended all medical consultations with the deceased; 
  2. She attended the index consultation when the breach occurred and was assured that the deceased was in good health; and 
  3. The consultant was so concerned about the plaintiff’s welfare that he sent her an open disclosure letter setting out the error in the care and offering condolences and apologies.  

However, the Court ultimately felt that these factors were insufficient to determine that the defendant had assumed responsibility for the health or well-being of the plaintiff (if that was the test for proximity).  

The Court then looked at the case through the prism of specialised proximity considerations, alluding specifically to the fact the plaintiff was the deceased’s wife, the fact that she witnessed the collapse of his health on 23 December 2018 and the fact she developed a psychiatric illness as a result.  Ms Justice Egan commented that her ultimate finding that a duty of care had not been established would not be altered by the application of such considerations because proximity alone does not give rise to a duty of care. She therefore seems to indicate that if proximity has a specialised meaning in the context of nervous shock claims, this plaintiff was sufficiently proximate. 

As noted above the Court was not required to determine whether proximity has a special meaning in the context of nervous shock claims in order to reach its decision in Germaine, but as part of “laying out the contours of future debate”, Ms Justice Egan suggested that perhaps the fifth criterion of Kelly envisages a confluence of proximities – relational, spatial and temporal, and the greater the confluence the more likely it is that a duty of care will be found to exist.  

Regarding the general question of whether a healthcare provider owes a duty of care to the relatives of their patients, the Court emphasised that this will always require a context driven analysis. The High Court noted that Irish law is unclear as to whether medical practitioners owe a duty of care to patients’ relatives.  The UK decision of Paul v Wolverhampton [2022] EWCA Civ 12 had been submitted to the Court by the defendant.  This is a decision which ruled that relatives of patients who suffer from medical negligence do not have a cause of action in nervous shock.  Ms Justice Egan summarised the effect of the Paul decision as (1) excluding medical crises from the nervous shock paradigm and (2) holding that due to a lack of proximity doctors do not generally owe relatives a duty of care.  The High Court indicated that it would not comment on this question in general terms in Germaine. 

While the Court did not make any general findings, the High Court raised a number of important considerations as to why it may not be just and reasonable to impose a general duty of care on doctors towards relatives of patients in the future: 

  • “Doctors must … 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 the medical negligence action could be multiplied by the number of potentially impacted family members. 
  • “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.” 
  • “Doctors are not obliged to shield relatives of patients against the risk of psychiatric illness in witnessing the deterioration of a loved one in an unprepared manner, observing that this “is not a risk which doctors ought to have in their reasonable contemplation when directing their mind to the medical care of their patients.” 

 

CONCLUSION 

The primary impact of Germaine is the emphatic re-statement of the Kelly v Hennessy principles, as well as the provision of a road map to be followed by practitioners and the judiciary alike when assessing the merits of claims for nervous shock arising from medical negligence.  Stated another way, it clarifies the hurdles that a plaintiff must overcome in order to succeed: 

 

  1. They must establish that they suffered a recognisable psychiatric illness.   
  2. They must establish that their recognisable psychiatric illness was shock-induced i.e. brought on by a sudden calamitous or horrifying event in the nature of an accident (by reference to objective, rather than subjective standards).  
  3. They must establish that the nervous shock was caused by the defendant’s act or omission. Even if there is breach of duty on the part of a healthcare provider, unless the breach caused the medical crisis which in turn caused the plaintiff’s injury, the plaintiff cannot succeed in a claim of nervous shock.   
  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. They 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 assessing this, the Glencar test will apply: 
    1. Was the injury to the plaintiff reasonably foreseeable? 
    2. Is there sufficient proximity of relationship? 
    3. Are there any countervailing public policy considerations to the imposition of the duty? 
    4. Is it fair, just and reasonable to impose the duty of care?  

In this case, the plaintiff failed to establish that the defendant hospital owed her a duty of care but the High Court has not closed the door to such a duty of care being established in another case and Ms Justice Egan has helpfully outlined the considerations that will apply when the time comes.   

 

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About the Authors

Martha Wilson
Martha Wilson

Martha is a partner in the Healthcare team at Hayes solicitors. She works primarily in healthcare litigation, defending personal injuries claims taken against the Health Service Executive as well as against individual medical and dental practitioners.

In addition to contentious matters, Martha also advises on healthcare care related non-claims issues and represents doctors and dentists in relation to complaints to the Medical Council and Dental Council.

Katie Nugent
Katie Nugent

Katie is an Associate on the Healthcare team at Hayes solicitors.

She specialises in the defence of medical and dental claims taken against both public hospitals and private clinicians. Prior to joining Hayes solicitors, Katie worked for four years in the area of insurance defence litigation with a particular focus on personal injury claims. She also trained in general practice with a particular focus on plaintiff personal injury claims.

Kevin Kelly
Kevin Kelly

Kevin is a Legal Executive in the Healthcare Litigation Team. He works closely with partners, associates and solicitors in medical negligence defence claims including high value catastrophic injury cases. He liaises with clients, counsel and experts in preparing cases for trial and for settlement negotiations.