Nervous Shock: Does a doctor owe a duty of care to a patient’s relative?

This Judgment considers nervous shock claims in the context of clinical negligence actions. The seminal case in Ireland which determines the principles governing the law on claims for nervous shock is Kelly v Hennessy 1995 3 IR 253. The Supreme Court held that in order for a Plaintiff to recover damages for nervous shock, the Plaintiff must prove: -

1. a recognisable psychiatric illness has actually been suffered;
2. the illness was shock induced;
3. the Defendant’s act/omission caused the nervous shock;
4. the nervous shock sustained was by reason of actual or apprehended physical injury to the Plaintiff or a person other than the Plaintiff;
5. the Defendant owed the Plaintiff a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.

In Germaine, a clinical negligence claim brought by the widow (“Plaintiff”) of Thomas Germaine (the “Deceased”), the key facts were as follows: -

1. The Deceased suffered from organising pneumonitis, was successfully treated for this condition and he remained under surveillance in case of relapse. On 2^nd October 2018, the Plaintiff attended with the Deceased for an x-ray of his chest, and this was reported as normal, however an opacity in the right lung was not detected by the reporting radiologist and he was charted for review the following October. It seems that had this opacity been detected in October 2018 then the Deceased would have been diagnosed with incurable lung cancer.
2. It was claimed that the Deceased’s condition gradually deteriorated between October and December 2018 and the Deceased’s condition rapidly deteriorated Christmas week, and was diagnosed with high grade poorly differentiated non-small carcinoma on Christmas eve. The Deceased was an in patient at the hospital for several weeks and started a course of radiotherapy. On 14^th February 2019, the Deceased passed away as a result of the metastatic lung cancer. The Plaintiff became aware of the terminal illness at the end of January 2019 and contended that she was not initially aware of the terminal diagnosis as her husband did not inform her.

While the Plaintiff was found to have satisfied the first criterion of the Kelly v Hennessy test, that she suffered a recognisable psychiatric illness, Ms Justice Egan dismissed the Plaintiff’s case as the Plaintiff did not satisfy criterion 2 (that the injury was shock induced), and criterion 3 (the Defendant’s negligence caused the Deceased’s deterioration).

With respect to criterion 5, Ms Justice Egan held that a duty of care could not be made out in this case. While Ms Justice Egan acknowledges in her Judgment the importance of determining whether healthcare providers owe a duty of care to relatives, Ms Justice Egan went on to say that “a court should not decide a question of broad import unless necessary to resolve the case at hand. Such questions are best decided in the incremental manner of the common law by reference to the specific circumstances of each case. In short, the court should only pronounce on the meaning of proximity in nervous shock and on whether health care providers owe a duty of care to the relatives of their patients in an appropriate case in which these issues squarely arise.”

Additionally, Ms Justice Egan held that:

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

Many will appreciate that perhaps the most complex of the Kelly v Hennessy criteria is with respect to criterion 5 where the Plaintiff must prove that the Defendant owes the Plaintiff a duty of care not to cause her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general. In Germaine, the Defendant submitted that generally healthcare providers do not owe a duty of care to relatives of patients and relied on the recent decision od the England and Wales Supreme Court in Paul v Wolverhampton [2024] UKSC 1 (“Paul”).

The Plaintiffs in Paul had sought damages for nervous shock arising from the witnessing of the death of, or injuries suffered by, family members due to medical negligence. According to the Supreme Court in Paul, when a doctor is treating a patient, they are not expected to contemplate relatives of the patient who may be impacted psychologically by witnessing the effects of a disease which a doctor should have diagnosed and treated. The Supreme Court held that such claims “must fail due to the lack of proximity in the relationship between the parties”.

In Germaine, despite the Plaintiff attending hospital appointments and consultations with the Deceased and the consultant doctor sending the Plaintiff an open disclosure letter after the death of the Deceased, Ms Justice Egan held that these factors are insufficient to demonstrate that the consultant had assumed responsibility for the health or well being of the Plaintiff. Accordingly, it was found that the Plaintiff had failed to establish the proximity of relationship between her and the Deceased’s doctor.

Ms Justice Egan considers that if “Doctors must also be taken to know that their patients’ relatives might foreseeably be negatively impacted by witnessing the result of a 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”.

In conclusion, as the Plaintiff did not satisfy criteria 2, 3 and 5 her claim in nervous shock failed.

While Ms Justice Egan has not concluded generally on whether a doctor owes a duty of care to relatives of their patients in nervous shock cases, Germaine provides parties to clinical negligence proceedings with clarity in relation to claims for nervous shock which are unlikely to succeed, having regard to the particular circumstances of this case.

If you would like further information, please contact Stephanie Kidney or another member of the Healthcare team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

Link to Judgment: https://www.courts.ie/viewer/pdf/d9f5d313-e242-4388-aef2-e3e9ef6b0d32/2024_IEHC_420.pdf/pdf#view=fitH