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Jonathan Austen-Jones represented the Claimants, who are the parents of SV, in their claim for damages arising out of the tragic death of their only child, S, who died when he had just turned 3, in King’s College Hospital in September 2013.  No allegations of negligence or criticisms were made regarding the care provided by King’s College Hospital. 

The case centred around a 3-day period commencing 15 September 2013 when S was taken by his parents to the emergency department at the Royal Alexandra Children’s Hospital in Brighton. S was discharged home on the first occasion with a diagnosis of a likely viral infection. S was taken back to the hospital 2 days later on 17 September 2013 when again the working diagnosis of a viral illness was reached and again S was discharged home. 

S returned to the hospital on the following day, 18 September 2013, by which time his condition had deteriorated and he was transferred to the Paediatric Intensive Care Unit at King’s College Hospital where a diagnosis of bacterial meningitis was made and S tragically died on 21 September 2013.

Jonathan submitted, on behalf of the parents, with the benefit of expert opinion from an independent consultant paediatrician who specialised in infectious diseases that, on the balance of probabilities, S would have made a complete recovery had he been admitted to hospital and given intravenous antibiotics on the second occasion they attended the emergency department, on 17 September 2013.  It was accepted, on the advice of the expert consultant paediatrician, that the care provided by the hospital on the first attendance on 15 September 2013 was of a reasonable standard.

The claim also included damages for each parent as “secondary victims” witnessing the death of their only child.

Jonathan arranged for the parents to see a consultant psychiatrist to provide expert evidence in relation to the secondary victim claims.  That expert concluded that both parents had developed psychological symptoms over and above a normal grief reaction that satisfied the criteria for diagnosis of Post-Traumatic Stress Disorder (to slightly different degrees) and therefore satisfied the criteria for a diagnosis of being secondary victims. 

Although NHS Resolution, on behalf of the Hospital Trust, denied many of the allegations made in respect of the substandard care provided, NHS Resolution made one important admission on breach of duty regarding the failure to arrange for S to be reviewed by a senior paediatrician on 17 September 2013.  Importantly, in relation to causation, they also admitted that investigations should have taken place, followed by intravenous antibiotics more than 14 hours before they were given and that it was probable therefore that S would have survived, albeit with some permanent neuro-disability.

At this stage NHS Resolution did not make any admissions as to whether the parents fulfilled the criteria of secondary victims, nor in relation to the extent and prognosis of their pain, suffering and loss of amenity.

Jonathan obtained an early interim payment to facilitate the parents undergoing the recommended psychological treatment suggested by the psychiatric expert.  The parents also received payment of the Statutory Bereavement Award (which sadly is set at the incredibly low level of £12,980.00 at the time). 

Following extensive further negotiation, Jonathan was successful in reaching an amicable settlement with NHS Resolution in respect of both parents’ claim for high figure sums.

Bringing a secondary victim claim in the context of a clinical negligence claim can be extremely difficult and expert legal advice should be obtained.  The bar is often set high in the test for recovery of damages.

The test was laid down in the case of Alcock v Chief Constable of South Yorkshire Police [1992] which many people will remember from the Hillsborough football disaster and which still sets out the criteria for assessing such a secondary victim claim.

To be successful a claimant has to satisfy the following criteria;

  1. The claimant must have a close tie of love and affection with the victim
  2. The claimant must be close in time and space, “immediate aftermath”
  3. There must be a direct perception of harm to the primary victim (rather than just hearing about it at a later time), and
  4. The Courts have said that it must be a sudden and shocking event (this is judged against an objective standard by reference to persons of ordinary susceptibility)
  5. The claimant must also have suffered a recognised psychiatric illness as opposed to “ordinary” grief, sorrow or deprivation which would be considered inevitable because of such an incident and which is supposed to be compensated and reflected by the Statutory Bereavement Award.
  6. The treatment in hospital has to give rise to events so shocking in order for a secondary victim to succeed. As one of the judges in Alcock said, it requires “a horrifying event which violently agitates the mind” and therefore it can be difficult to succeed with a secondary victim claim except in the most grave and exceptional of cases. 

Please contact Jonathan for an initial no-obligation chat if you feel that you have been a victim in such circumstances, so that he may advise you of your legal rights and whether you have a viable claim to pursue.

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