A hospital is not liable for the psychiatric injury suffered by a woman who witnessed the rapid deterioration of her husband’s health before he died from lung cancer, the High Court has ruled.
Carmel Germaine suffered an adjustment order which she alleged was induced by shock from witnessing a sudden and frightening decline of Thomas Germaine, who lived in Lucan, Dublin. He died on February 14th, 2019.
Ms Justice Emily Egan found Ms Germaine did not satisfy all the conditions for being entitled to an award of damages for “nervous shock”.
The judge said St James’s Hospital in Dublin admitted a breach of duty of care in failing to initially report an opacity on Mr Germaine’s lung in an October 2018 x-ray taken as part of monitoring an unrelated condition from which he had recovered.
X-ray
While this x-ray could have led to an earlier diagnosis, both sides in the case agreed his cancer was already incurable by this point, so there would not have been any change in his treatment or prognosis, the judge said. The admitted breach did not, therefore, cause his injury.
Ms Justice Egan said a 1995 Supreme Court decision sets out five conditions for someone to be entitled to damages for nervous shock as a result of suffering a recognisable psychiatric illness by witnessing a relative’s injury or death caused by medical negligence.
The judge held that two of the five conditions were not satisfied in this case.
St James’s Hospital chief executive Mary Day, named as the defendant in the case as the hospital’s representative, contended a third criterion– that a defendant owed a plaintiff a duty of care – was also not met, but Ms Justice Egan did not reach a conclusion on this issue.
Ms Germaine alleged her husband’s health declined in the months following his October 2018 x-ray. She said she saw him rapidly decline on December 23rd and she persuaded him to attend the Hermitage Clinic on Christmas Eve.
He was diagnosed there with a high-grade lung cancer. He underwent radiotherapy but died of metastatic lung cancer in February 2019.
Ms Germaine alleged that if her late husband had been correctly diagnosed at St James's, she would have been spared her shock. She submitted he could have had palliative care and other supports and this would have either prevented the deterioration or prevented her from witnessing it.
Alternatively, with supports, she would have had an opportunity to come to terms with his situation and avoided the shock and trauma of his sudden decline, she claimed.
She also claimed the hospital owed her a duty of care to avoid causing her foreseeable injury.
Ms Justice Egan accepted Ms Germaine’s adjustment disorder is a recognisable psychiatric illness, satisfying the first criterion for an award of nervous shock damages.
St James's Hospital, represented by Eoin McCullough SC and Rory White BL, instructed by the State Claims Agency, contended the second condition was not met as the situation did not qualify as a sudden, shocking event but was a gradual arc of health decline.
Not 'shock-induced'
The judge agreed, finding the widow’s injury was not “shock-induced” in the way that phrase has been interpreted by the courts as a “sudden, calamitous or horrifying event in the nature of an accident”.
The third condition – that a plaintiff must prove nervous shock was caused by a defendant’s act or omission – was also not met. Ms Justice Egan said the hospital’s negligence did not cause Mr Germaine’s deterioration, which would have occurred in any event.
She held that Ms Germaine could not succeed on her argument that her nervous shock was attributable to being unprepared to witness the decline.
The judge did not reach a conclusion on the hospital’s further contention that it did not owe a “bystander” a duty of care. This was a complex issue of broad significance, the judge said, adding that she would have needed to hear further legal argument on it.
However, this was not necessary as determining the point would not affect the outcome of the case.
Ms Justice Egan said she has great sympathy for Ms Germaine, who has “undeniably” suffered psychiatric injury in addition to losing her husband. However, she could not find in her favour.
