Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error

AuthorPaula Case
Published date01 July 2004
Date01 July 2004
Secondary Iatrogenic Harm: Claims for Psychiatric
Damage Following a Death Caused by Medical Error
Pau la Cas e
The purpose of this paper is to investigatethe feasibil ityof claims for psychiatric damage follow-
ing the death of a family member, wherethat death has been caused by medical error.
The rela-
tive’s position is a subject of heightened interest since the exposure of the plight of the parents
involvedin the UK organ scandal,
and in the case of an iatrogenicdeath it is, of course, the family
who are essentially the focus of the law’s attempts to provideredress.Whil st the cases of deceased
patients’relatives se eking damages for mental harm are inherently problematic in light of the
restrictive secondary victim criteria applicable to psychiatric damage claims, a close look at the
rules which permeate this area of compensation revealsthat denying compensation to the relative
su¡ering psychiatric harm is di⁄cult to sustain.
The term ‘iatrogenic medicine’ originates from the work of Ivan Illich and his
dystopianportrayal of modern medicine. In Medical Nemesis
Illich contended that
not onlywas there no directrelationship between the decline of population threa-
tening diseases such asTB or diphtheria and modern medicine (improvements in
sanitationand hygienewere the key factors in controlling thesemaladies),but that
modern medicine was responsible for a higher incidence of injury than all other
industries except mining and construction.
Whilst it is not this authors intention
to pursue this negative representation of hospitals and medicine as pathogens,
Institute of Medicine, Law& Bioethics, University of Liverpool.W|ththanks to Professor Michael Jones
and the Modern LawReview referees for their valuable commentson an earlier draft of this paper.
1 A much earlier draft of this paper was distributed at Medico-Legal Issues Arising Out of Death,a
conference of the Association for V|ctims of Medical Accidents (London, 20 May 2003).
2 During the course of investigating fatality ratesat Bristol Royal In¢rmary’scardiac un it forchil-
dren, it came tol ightthat tissue and organs fromchild patients who had died in hospital had be en
routinely stockpiled athospitals/research facilities throughout the UKwithout parental consent.
See The Royal Liverpool Children’s Inquiry 2001 at (last visited 19
March 2004) and the recently launched litigation: ‘D. Lee,‘Should NHS Pay for Parents’Grief ?’
TheT|mes27 January 2004.
3 Although the case can equally be made for liability to be extended to relatives in cases of non-
medical negligence, the case is perhaps strongesti nthe hospital context due to the frequent visi-
bility of the patient’s close family, but also raises speci¢c problems,not least the dogged resistance
by English courts to acknowledging that doctors mightowe a duty of care to non-patients.
4 I. Illich,The Lim its to Medicine: Medical Nemesis (New York:Penguin, 1977).
5 It is recognised that an alternative de¢nition of iatrogenici njuryexists, that is,‘neurotic manifes-
tations induced by a physician’s diagnosis.’ (V. A. Sharpe and I. A. Faden, Medical Harm (Cam-
bridge: Cambridge University Press, 1998). See Alexander & Others vMidland Bank Plc [1999]
IRLR 723 by wayof example.
6 For a detailed discussion of rates of iatrogenici njury, see chapterone of M. A. Jones,Medical Neg-
ligence (London: Sweet & Maxwell, 3
ed, 2003) and Making Amendswhich details the results of a
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(4) MLR 561^587
there is an accumul ating body of evidence which lends support to the notio n of
iatrogenic medicine.
One iatrogenic e¡ect of medicine might be regarded as the
psychologicalconsequences of a relatives unnecessary death in hospital ^ an inci-
dent which directlycontravenesthe usual expectationsof bene¢cence and specia-
list care associated with hospitalisation.
Of course, the relative of the deceased might be regarded as doubly prejudiced
in their claim in the sense that not only must they demonstrate medical practice
falling below the applicable standard of care, thus overcoming the Bolam test,
they must also ¢t their case into the tightly drawn conditions laid down in the
case law for psychiatric damage claims. It will become apparent in the following
pages that many recent decisions,both in the English courts andi nother jurisdic-
tions, suggest a softening or mellowing of the Alcock criteria, and o¡er incentives
for testing the boundaries of liability for psychiatric damage caused by medical
error, and beyond.
Although relatives a¡ected by an iatrogenic de ath in the family may (or may not)
su¡er any one of a number of psychiatric disorders, there are particular di⁄culties
for claimants where the major triggering factor of the illness is regarded as the
experience of bereavement, as opposed to witnessing a horri¢c external event
which causesbereavement.The relative is unlikelyto witness at ¢rsthand the ‘sud-
den shocking event’currently required by English law as, unlike the typical acci-
dent environment, the hospital is a highly controlled space where the familys
view of tragedy is often occluded by the intervention of hospital personnel.
Whilst grief is widely regarded as a normal reaction to bereavement, where the
experience of bereavement is aggravated by the belief that the loss of a loved one
was attributable to the fault of the attending clinician, it is perhaps not unlikely
that grieving will become obsessive and pathological.
There is what might be
described as a broad consensus within psychiatry that pathological grief is a dis-
tinct medical condition from ordinary grief.
Not unlike post-traumatic stress
survey in which 1.5%of patients interviewed stated that they had su¡ered medically caused i njury
which had a permanent e¡ect on their health (MakingAmends: A consultation papersetting out propo-
sals forreforming theapproach to clinical negligence in the NHS (Department of Health, June 2003) at visited 19 March 2004)).
7TheSocio-EconomicBurdensof HospitalAcquiredInfections(The Public Health Laboratory Service and
the London School of Hygiene and Tropical Medici ne, 1999) and The Management and Control of
Hospital Acquired Infection in Acute NHS Trusts in England HC 30 6 (Public Accounts Committee,
8BolamvFriern Hospital Management Committee[1957] 1 WL R 5 82.
9 For example, it wasthe police inquiry and court proceedings which followed the victims death
which were regarded as being responsible for the plainti¡’s grieving becoming pathological in
Calascione vDixon(19 93) 19 BMLR 9 7.
10 Eg S. J. Marwit ‘Reliability of Diagnosing Complicated Grief: A Preliminary Investigation’
(1996) 6 4 Journalof Consultingand Clinical Psychology563; J. Horowitzet al, ‘DiagnosticCriter iafor
Complicated Grief Disorder’ (1997) 154 AmericanJournal of Psychiatry9 04 andJ. S. Ogrodniczuk
‘Di¡erentiating Symptoms of Complicated Grief from Depression Amongst Psychiatric
Outpatients’(2003) 48(2) CanadianJournalof Psychiatry 87.
Secondary Iatrogenic Harm
562 rThe Modern LawReview Limited 2004

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