The Plaintiff in this case suffered a psychological injury associated with the death of her mother in circumstances suggestive of medical negligence whereby there was a failure on the part of a GP to remain with the Plaintiff’s gravely ill mother and the failure by the GP to call an emergency ambulance. This was a novel case in that it was the circumstances of and surrounding the death (as opposed to the death itself) which caused the Plaintiff’s injuries.
Ordinarily a Plaintiff who pursues damages for negligently inflicted psychiatric injury caused by the wrongdoing of a person must prove a causal link between the wrongdoing alleged and the psychiatric injury suffered (i.e. a claim pleading nervous shock arising as a result of the death simpliciter).
In this case the psychiatric assessment concluded that the Plaintiff required counselling as a result of the traumatic event of her mother dying in her arms and the failure of the doctor to remain at the scene. In her consultation with the psychiatrist she stated that she felt deserted by the GP who left her and did not make it clear to the emergency services that it was an emergency. Had the matter proceeded to trial the Defendants are likely to have argued that the Plaintiff would not have suffered a psychiatric injury had her mother not died and therefore she must establish that the actions which should have been performed would have saved her mother’s life.
The facts of the case were not considered by the High Court as shortly before the trial date the case settled favourably on the part of the Plaintiff. However had the case proceeded to trial it would have been a novel case in terms of nervous shock jurisprudence in Ireland. While the comment of Geoghegan J in Fletcher v The Commissioner for Public Works to the effect that “that decision [Kelly v Hennessy] should only be taken to relate to accident damage” suggested a more flexible approach being taken by the Irish Courts to the issue of psychiatric injury arising as a result of negligence on the part of another person in the future, more recent decisions appear to have reigned back on those comments and have endorsed the Kelly v Hennessy five preconditions to recovery in all cases alleging nervous shock cases and have refused to date to extend the law to non-accident/non-aftermath cases - see Devlin v The National Maternity Hospital  2 IR 222 and Larkin v Dublin City Council  1 IR 391 where Clark J referred to the Devlin decision before applying the Kelly v Hennessy five preconditions to a claim which did not relate to accident damage and thereafter dismissed the plaintiff’s claim.
If you have any further queries, please contact any of the following from our Medical Negligence group:
- Joice Carthy, Managing Partner
05 March 2012