Nervous Shock and Medical Negligence – Germaine v Day
Much discussion has arisen following last year’s High Court decision in the case of Germaine -v- Day (1) regarding the duty of care owed by healthcare providers to the relatives of patients.
Our Sorcha King looks at what implications, if any, the Germaine case had.
Case Facts
The Plaintiff, a widow, claimed damages arising from nervous shock related to the delay in diagnosing her late husband’s lung cancer. While the Defendant admitted a breach of duty in failing to diagnose the cancer in a timely manner, no causation arose.
The Plaintiff alleged that she was unaware of her husband’s terminal prognosis until some weeks prior to his death. She claimed that the Defendant owed her a duty of care to avoid causing her a foreseeable psychiatric injury.
Law in Ireland
The primary case on nervous shock in Ireland is Kelly v Hennessy (2), the test is as follows:
- A recognised psychiatric illness was suffered,
- The injury was shock induced,
- The injury was caused by the defendant’s negligence,
- There was an actual or apprehended physical injury to the plaintiff or another person,
- There was a duty of care not to cause a reasonably foreseeable psychiatric injury.
Findings
The Plaintiff failed to satisfy criteria 2, 3 and 5 of the so-called Hennessy test. While the Court recognised the Plaintiff suffered a recognised psychiatric injury, it determined it was not “shock induced”. Indeed, the Deceased’s health deteriorated over the course of several months. No evidence was put forward that the Plaintiff would not have suffered an adjustment disorder had she been aware of her husband’s condition.
While the Defendant an admitted breach of duty, it did not change his medical course and his death was inevitable.
Finally, the Court concluded that no duty of care arose between the parties in this case.
Duty of Care to Relatives in the Context of a Medical Negligence Action
For the duty of care to extend to a patient’s family, it would be necessary to establish proximity and reasonableness as in the case of Glencar Exploration plc v. Mayo County Council (3).
a. Was the injury to the plaintiff reasonably foreseeable?
b. Is there sufficient proximity of relationship?
c. Are there any countervailing public policy considerations to the imposition of the duty?
d.Is it fair, just and reasonable to impose the duty of care?
Egan J noted as the Plaintiff failed on criteria 2 and 3, the question of proximity was irrelevant.
The Court acknowledged a duty of care can exist. A contrast was made with the case of Courtney -v- Our Lady’s Hospital Ltd & Ors (4) where a mother brought her toddler to hospital and witnessed her death from a fatal heart attack. The Defendant hospital failed to diagnose and treat her daughter in a timely manner and there was a clear link to their negligence and the Plaintiff’s psychiatric injury.
Conclusion
The judgment provides clarification on the criteria that Plaintiffs must satisfy for these actions to succeed, and guidance for practitioners on the application of the law. Crucially though, it does not follow the law set out in the Paul case in the UK, and shows the Courts here adapting to society’s understanding of psychiatric illness.
(1) [2024] IEHC 420
(2) [1995] 3 IR 253
(3) Glencar Exploration plc v. Mayo County Consel (No.2) [2002] IR 84