Recent case decision brings some clarity to "Nervous Shock" claims: Germaine v Day 2024 [IEHC] 420

The High Court decision in Germaine v Day, delivered on 10^th July 2024 has brought some clarity to the area of "nervous shock" claims in the context of medical negligence litigation. It is the first medical negligence nervous shock case in which liability was in dispute, having regard to the principles set down in the seminal case of Kelly v Hennessy. While the plaintiff did not succeed in her action, this decision has not sounded the death knell for such cases.

Germaine v Day 2024

Case Facts

• Thomas Germaine (the Deceased) suffered from organizing pneumonitis affecting the upper lobe of his right lung. This condition was treated successfully, and he was under surveillance at St. James’s Hospital to monitor for relapse.

Chest x-ray and misdiagnosis

• On October 2, 2018, the Deceased had a chest x-ray, reported as normal. However, it showed an unrelated opacity in the right lung, which the radiologist did not initially detect. This opacity would have led to a lung cancer diagnosis if reported and followed up clinically.
• The consultant at St. James’s Hospital informed the Deceased that his lung condition had resolved, scheduling a review for October 2019. It was later admitted that there was a breach of duty of care.

Deterioration between October and December 2018

• Between October and December 2018 the Deceased’s health gradually deteriorated. By October 2018, his cancer was already incurable, and the evidence to the Court was that an earlier diagnosis would not have changed his treatment or prognosis.
• In December 2018 the plaintiff witnessed the Deceased's rapid health decline, including significant difficulty mobilising, severe headache, and inability to move his arms.

Cancer Diagnosis and death

• On Christmas Eve, after persuasion from the Deceased's wife (the plaintiff) and her daughter, the Deceased attended the Hermitage Clinic, where he underwent tests and was diagnosed with high-grade poorly differentiated non-small cell carcinoma.

• The Deceased was initially discharged home, but the family decided he should be cared for in the Hermitage Clinic. The Deceased remained at the Hermitage until his passing from metastatic lung cancer on February 14, 2019.
• The plaintiff was unaware of the terminal nature of her husband’s illness until late January 2019, shortly before his death.

Open Disclosure letter

• On February 18, 2019, the consultant wrote a letter addressed to Thomas and his general practitioner. After learning of the death, the letter was re-addressed to the plaintiff and sent in April 2019. The letter acknowledged the failure in care, stating that the cancer should have been diagnosed in October 2018 and included an unreserved apology.

The Plaintiff's case:

• The plaintiff argued that she suffered an adjustment disorder, a recognised psychiatric illness, which she claimed was shock-induced. This illness, she contended, resulted from witnessing the sudden and frightening deterioration of her husband's condition.
• The plaintiff claimed that the defendant's failure to diagnose her husband's cancer deprived her of the opportunity to prepare for his decline. She asserted that, had the diagnosis been made, palliative care and associated supports would have been provided, either preventing the deterioration or helping her cope with it better, thereby avoiding the shock and trauma.
• The plaintiff claimed the defendant owed her a duty of care to prevent foreseeable injury in the form of nervous shock.

The Defendant's position:

• The defendant countered that the plaintiff did not witness a sudden shocking event but rather a gradual decline in health.
• The defendant argued that this progressive deterioration did not qualify as a "sudden" event, which is a requirement for meeting the test in Kelly v Hennessy.
• The defendant argued the evidence did not support the claim that an earlier diagnosis would have changed the outcome or the plaintiff's exposure to her late husband's deterioration.
• The defendant disputed that they owed the plaintiff a duty of care, referencing the recent UK Supreme Court decision, Paul v. Wolverhampton NHS [2024] UKSC 1 decision, which generally held that doctors do not owe a duty of care to the relatives of their patients.

The Court's Findings

• The High Court held that the plaintiff’s case could not succeed primarily because she could not satisfy the criteria set out in Kelly v. Hennessy for a nervous shock claim.

• Kelly v. Hennessy [1995] 3 IR 253

Under the Supreme Court decision in Kelly, a plaintiff seeking to recover damages for nervous shock must prove:

1. Recognisable Psychiatric Illness: The plaintiff must suffer a psychiatric condition recognised by medical science.
2. Shock-Induced Illness: The psychiatric illness must result from shock.
3. Defendant’s Negligence: The defendant’s act or omission must have caused the injury.
4. Physical Injury to Plaintiff or Another: There must be actual or apprehended physical injury to the plaintiff or another person.
5. Duty of Care: The defendant must have a duty of care to avoid causing the plaintiff reasonably foreseeable psychiatric injury.

In applying the Kelly principles to Mrs. Germaine's case, the Court held:

• Criterion 1: The plaintiff satisfied the requirement of suffering a recognisable psychiatric illness.
• Criterion 2 The Court found that the plaintiff's psychiatric injury was not shock-induced as there was no sudden, calamitous event akin to an accident
• Criterion 3: The Court found that the defendant's negligence did not cause the deceased’s deterioration, which the plaintiff claimed as the shocking event. The Court determined that this deterioration would have occurred regardless of the missed diagnosis, and the plaintiff's nervous shock from witnessing the deterioration in an unprepared manner did not meet the causation requirement.
• Criterion 5: The plaintiff could not establish that the defendant owed her a duty of care.

"Criterion 5" - Duty of care

The Court explored the complex issue of whether healthcare providers owe a duty of care to the relatives of their patients. The approach to the fifth criterion has been analysed by the Courts, most recently in Morrissey[1] and Sheehan[2] by reference to the test developed in Glencar Explorations Plc v. Mayo County Council No. 2 [2002] 1 IR 84

The elements necessary to establish a 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

Proximity in the context of Nervous Shock

The Court noted that Irish law lacks clarity on how to assess proximity in such cases (i.e. between a doctor and a patient's relative). The Court acknowledged that because duty of care was not in issue in Kelly, the principles that ought to apply to an assessment of proximity in these types of cases is not yet clear. It is to be considered, whether proximity should be assessed based on broader negligence principles, or if it bears a specialised meaning within the context of nervous shock claims. The Plaintiff argued that Proximity of Relationships (close personal relationships between the plaintiff and the patient) Spatial Proximity (physical closeness to the shocking event), Temporal Proximity (the timing of the plaintiff's perception of the event relative to its occurrence) were all relevant to determining proximity. The Defendant argued that only an assumption of responsibility by the doctor for the patient's relative ought to determine whether or not sufficient proximity exists.

In Germaine, on the matter of proximity, the Court held that the plaintiff’s hospital visits and attendance at consultations alongside the Deceased, and receipt of an open disclosure letter, were not sufficient to establish the necessary proximity or assumption of responsibility by the doctor for the Plaintiff’s health or well-being.

The Court concluded that even if foreseeability and proximity were established, it would be unreasonable to impose on the defendant, a duty to protect the plaintiff from the psychological impact of witnessing her husband's deterioration in an unprepared manner. Ms Justice Egan stated 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.” 

Ms Justice Egan observed 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. There might even be a conflict between the doctor’s duty to the patient and that allegedly owing to the relative. One can readily foresee how a doctor’s duty of confidentiality to their patient could deter a doctor from acting in a manner which would otherwise be in the relative’s best interests."

The Court emphasised that such a fundamental legal question as that of duty of care should not be resolved unless necessary to the specific case at hand. In this instance, since the plaintiff did not meet the criteria for nervous shock under Kelly, the Court did not need to definitively address the broader issue, adding that such questions are better decided incrementally by examining the specific circumstances of each case.

A note on Paul

It is not surprising that in Germaine, the defendant placed significant reliance on the recent UK Supreme Court decision in Paul v. Wolverhampton [2024] UKSC 1 as supporting its argument that by reason of proximity, no duty of care exists as between a doctor and the relative of a patient.

In Paul, the Supreme Court determined that due to a lack of proximity, doctors do not generally owe patients' relatives a duty of care. It also held that witnessing negligently caused medical crises (or their aftermath) was not generally within the Rubicon of nervous shock.

It was not argued by the defendant in Germaine that medical crises and their aftermath are not analogous to and lie outside the ambit of "nervous shock". It remains to be seen what the Court's attitude will be if such an argument is advanced.

While the decision in Paul did not set a precedent in Ireland, those defending healthcare professionals and hospitals would have drawn some confidence that the Supreme Court could follow suit in Ireland; hence its citation by the defendant in Germaine.

In Conclusion

The Court's decision in Germaine is unlikely to have surprised practitioners in the area of medical negligence litigation but helpfully, it has reaffirmed the principles in Kelly. In applying them to the circumstances, and eloquently setting out the jurisprudence in this area, there is no doubt that the decision will prove useful, especially to plaintiffs and their lawyers in understanding what is required to be established, in order to succeed at trial.