Irish High Court considers whether doctors owe a duty of care to their patients’ relatives

In a much-anticipated judgment, the Irish High Court has found that the wife of a man who died following a delayed diagnosis of cancer cannot recover damages for nervous shock. From a legal perspective, the significance of this decision lies not in this finding, which is somewhat specific to the facts of this particular case, but in the Judge’s comments on the broader issue of whether, as a general principle, healthcare providers owe a duty of care to the relatives of their patients. This issue was recently pronounced upon in our neighbouring jurisdiction by the UK Supreme Court in Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) [2024].

Kelly v Hennessy (1995)

In the leading case on nervous shock in Ireland, Kelly v Hennessy (1995), the Supreme Court set out five conditions that a plaintiff must establish to recover damages for nervous shock:

1. They suffered a recognisable psychiatric illness.
2. This recognisable psychiatric illness was shock-induced.
3. The nervous shock was caused by the defendant’s act or omission.
4. The nervous shock sustained was by reason of actual or apprehended physical injury to themselves or another person.
5. The defendant owed them a duty of care not to cause them a reasonably foreseeable injury in the form of nervous shock.

Specific facts of Germaine v Day

The plaintiff was the wife of a man who was under the care of the hospital to treat organising pneumonitis.  An x-ray was taken in October 2018, as part of surveillance of his organising pneumonitis.  This x-ray failed to pick up an opacity in the right lung, which would, had it been picked up, have led to a diagnosis of lung cancer. While the hospital admitted breach of a duty to the deceased, in so far as it had misreported the relevant x-ray, the delayed diagnosis did not in fact cause the deceased’s death, as  his cancer was already incurable when this x-ray was misreported.

Following the death of her husband, the plaintiff brought proceedings against the hospital seeking damages for nervous shock. Her case was essentially that she suffered an adjustment disorder as a result of witnessing her husband’s “dramatic deterioration” in December 2018 and being unprepared for the decline in his health. She said that had her husband been diagnosed when he first attended the hospital, she would have been spared the shock to which she was exposed when his condition deteriorated.

High Court decision

Judge Egan in the High Court found that the plaintiff’s case failed because she did not satisfy criteria 2 and 3 in Kelly v Hennessy.

The High Court held that:

“…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.”

There was, therefore, “no sudden calamitous or horrifying event in the nature of an accident”.

The broader issue

The High Court’s obiter comments on criteria 5, whether healthcare providers owe a duty of care to the relatives of their patients, is of even wider import and has set the scene for “the likely contours of future debate.”

In the recent landmark decision in Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) [2024], the UK Supreme Court excluded medical crises from the nervous shock paradigm and held that, due to a lack of proximity, doctors do not generally owe relatives a duty of care.

The UK Supreme Court stated:

“Common to all cases of this kind, however, is a fundamental question about the nature of the doctor’s role and the purposes for which medical care is provided to a patient. We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”

Judge Egan in the High Court focussed on the importance of proximity as the control for establishing whether a duty of care might be owed to a relative of someone injured in a medical negligence context. The High Court accepted that proximity has a “wide meaning” and an “elastic definition”, as noted by Judge Geoghegan in Fletcher v Commissioner for Public Works.

The Court once again accepted that the four-limb test for establishing a duty of care, set out by Chief Justice Keane in Glencar, is relevant in determining whether a relative of a patient injured in a medical negligence context can recover for nervous shock. Under Glencar, to establish a duty of care, a plaintiff must show:

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.

Judge Egan stated:

“It may be that the requirement for a sudden shocking event is both a perimeter of liability in nervous shock and a potential gateway into such liability.  If so, the factors which might establish proximity in a nervous shock case in which the plaintiff sues qua bystander will not necessarily be the same factors as would establish free standing proximity in a stand-alone negligence action”.

Referencing the potential floodgates of “wide and uncontrolled liability” if nervous shock cases by a relative were not treated as a different category of claim,  Judge Egan commented that foreseeability and proximity of relationship alone is not enough to establish a claim:

“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 a medical negligence action could be multiplied by the number of potentially impacted family members.”

With Glencar in mind, the High Court noted that:

“In considering whether it is just and reasonable to impose a duty, one does not only consider what would be just and reasonable between the parties but also what is just and reasonable in the public interest. It would seem entirely contrary to the interests of patients, to good healthcare practice and thus to the interests of broader society, to hold that a relative’s attendance at medical consultations or their receipt of an open disclosure letter gives rise to a direct duty of care owed by a treating doctor.”

Comment

The decision of the High Court in Germaine has further paved the way for a more nuanced interpretation of the test laid down in Kelly v Hennessy, particularly when determining whether a duty of care arises between a doctor and the relatives of a patient injured in a medical negligence context. The Court acknowledged that this category of claim must be dealt with cautiously so as to avoid “wide and uncontrolled liability”. 

In analysing whether a duty of care was owed, the Court commented that proximity between the hospital and patient’s relatives under an “assumption of responsibility”  was not established in this case.  Considerations of “relational, spatial and temporal proximity” were important but the Court emphasised that proximity alone does not give rise to a duty of care.  While the Irish Courts are seemingly loathe to devise “inflexible control mechanisms” the Court has once again interpreted criterion 5 of Kelly v Hennessy in the light of the Glencar test to “consider whether, in all the circumstances, it is just and reasonable that the law should impose a duty…”.

Although the Court did not ultimately have to determine the hospital’s duty of care to the relatives in this particular case, the Court has carefully laid out the balanced approach that will need to be taken by the next Court which comes to determine this intricate question. 

Related item:

• Supreme Court ruling: secondary victim claims and clinical negligence