Nervous Shock

The HSE were sued by the parents of a woman who died from cervical cancer following an alleged misdiagnosis by the HSE in the cancer screening process. The parents alleged that they had suffered nervous shock because of the breach of duty of care owed to them by the HSE.

The parents claimed that they suffered from nervous shock arising from learning in January 2014 that their daughter had cancer, that their daughter lost a pregnancy due to the cancer, that they witnessed the circumstances of her passing and ultimately learning that her death had been avoidable.

It was also claimed that there was a significant delay by the HSE in disclosing information, that was available, about the nature of the treatments which ought to have been taken to ensure their daughter’s health and survival. Finally, the parents also claimed they suffered stress from the inappropriate manner in which they had been informed by the consultant of the cause of death of their daughter.

The HSE in their defence raised two issues, which they submitted negated the plaintiffs’ claim. First, it was submitted that there was case law to state that the HSE did not owe a duty of care to the plaintiffs arising from negligent diagnoses and cited the High Court judgment of Morrissey v. Health Service Executive and Others. IEHC 268 to support this.

Second, it was said that the plaintiffs were barred from issuing proceedings because they were listed as statutory dependents in fatal injury proceedings brought by the daughter’s husband in 2018. The defendants sought to rely on section 48(2) of the Civil Liability Act 1961 which provided that “only one action for damages may be brought against the same person in respect of the death”.

The High Court in addressing the issues before the court, confined itself to the two points raised by the defendant. Regarding the Morrissey case cited by the HSE, the judge also considered another earlier High Court judgment which the plaintiffs claimed ruled out the Morrissey case which the defendants relied on.

The court held that there was a difference between the present claim and the Morrissey claim which was based on negligent care. The present plaintiffs made allegations in respect of the inappropriate manner in which the consultant revealed the cause of their daughter’s death. The court held that it would not reach a definite view on liability attaching to this particular allegation and would hear further submissions from counsel. In other words, the court left open the possibility of the plaintiffs being successful in suing under this particular heading despite the apparent roadblock of the Morrissey case.

On the section 48(2) of the Civil Liability Act 1961 point, the court held that the plaintiffs were not relying on the common law right to sue for wrongful death but were instead seeking damages for nervous shock. The plain wording of the section limiting actions in respect of death did not include nervous shock claims. As such, the court was satisfied that the plaintiffs were not barred by the 1961 Act from bringing the proceedings.

In summary, the court determined that the majority of the plaintiff’s claim for nervous shock was unfortunately undermined by the Morrisey decision, but it was open minded on their claim for inappropriate behaviour by the consultant. Considering the court’s findings, the judge determined that it would hear the parties on the consequences of the judgment.

Mitchell and Anor. v The Health Service Executive IEHC 394