EWJ 60 April 2025 web - Journal - Page 40
found that it was straightforward to identify the duty
of care that exists between a clinician and their patient.
The clinician is providing a service of care to their
patient and therefore, the duty of care is apparent.
He emphasised that had the families brought claims
for damages in Scotland under the Damages
(Scotland) Act 2011 for their pain and suffering, loss of
society and loss of support of their loved one, they
would likely have been successful in being awarded
damages. Families in Scotland have the benefit
of being entitled to claim substantial damages in these
circumstances, in comparison to the damages
available in England and Wales.
However, the court found that a clinician's duty of care
cannot extend to a patient's family. They cannot be
expected to protect family members from the risk of
developing an illness as a result of witnessing the
consequence of medical negligence.
Nevertheless, these cases were brought as secondary
victim claims. Both Lord Carloway and Lord Sales
were in agreement that had Scots law been applied to
the facts and circumstances of these cases, the
same decision would have been reached and the
individuals would not have been successful in their
secondary victims claims for damages. These
comments have provided welcome certainty as to the
aligned approach in our respective jurisdictions.
This would likely extend to including the case of an
expecting father who may witness the unexpected
stillbirth of their child and develop a psychiatric illness
as a result. In such an instance, the father is witnessing
this shocking event in close proximity in both time and
space but will not be entitled to make a claim.
Whilst this may appear inconsistent with the duty of
care placed on drivers that extends to secondary
victims, this may relieve a certain pressure that would
otherwise be present on clinicians at end-of-life care.
Had the appeals been allowed, clinicians may resist the
wishes of a family wanting to be present as their loved
ones pass away as a consequence of negligence, for
fear of a secondary victim claim arising.
Author
Nicola Edgar
Partner
Accredited Specialist in Personal Injury Law and
Trauma Informed Lawyer
Morton Fraser MacRoberts LLP
www.mfmac.com
Scots Law
Whilst these cases were brought within the England
and Wales jurisdiction, Lord Carloway commented on
how the cases would have been dealt with had the
negligence occurred in Scotland.
Mr Manu Sood
Consultant Plastic Surgeon
MS, MCh (Plast), FRCS (Plast); Diplomate,
European Board of Hand Surgery
Consultant Plastic and Hand Surgeon based at the internationally renowned St Andrews Centre for Plastic
and Reconstructive Surger y
24 years of experience in reconstructive surger y and hand surger y as a Consultant in both the NHS and
the private sector
Special interests include:
1.
Complex hand and microsurger y including: Ar thritis, Carpal Tunnel Syndrome, Cubital Tunnel
Syndrome, De Quer vain's Tenosynovitis, Dupuytren’s Contracture, Ganglion, Mucous Cyst,
Ner ve Compression, Ner ve Injuries and treatment of hand fractures
2.
Facial reconstruction following skin cancer surger y, including basal cell carcinoma, squamous cell
carcinoma and malignant melanomas
Tel: 01277 840 140
Fax: 01277 829 918
Email: plasticsurger y@manusood.co.uk
Web: www.manusood.co.uk
PO Box 7191, Ingatestone, Essex SM4 9WA
EXPERT WITNESS JOURNAL
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APRIL 2025
