A mother was recently successful in her claim for damages for psychiatric injury against the Doctors who negligently mismanaged her labour causing her daughter to be born with cerebral palsy, in what is being hailed as a landmark case on the status of a mother as a primary victim.
In law, a primary victim is someone who was directly involved in an incident – but who was not caused physical injury - and is able to claim damages for psychiatric injury suffered as a result.
In the recent case of YAH v Medway NHS Foundation Trust, the Claimant gave birth via an emergency caesarean section following the negligent management of her labour by the Defendant. She was faced with the overwhelming fear that her daughter would not survive, and the very thought of the strain of looking after her disabled daughter over the coming months and years caused her to suffer an anxiety disorder soon after delivery, followed by depression once the shock had set in.
The Defendants sought to argue that YAH was not a primary victim as she had already given birth at the time, meaning she would only be able to seek damages as a secondary victim, and knowing that she would not satisfy the criteria of having witnessed a shocking event sufficient to cause her psychiatric injury.
It was previously settled law that a mother and baby are a single legal entity until delivery, meaning a mother who sustained personal injury as a result of negligence to the unborn baby would be entitled to claim damages. However, the law was unclear on the position if the injury occurred once the baby had been delivered, as was the case here.
The Court ruled in favour of YAH, stating that a mother does not cease to be a primary victim at the moment of the delivery, and as the cause of the injury was closely linked to obstetric negligence just before delivery, she was entitled to claim damages.
Commenting on the case, David Gabell, Clinical Negligence Specialist at Fosters Solicitors said "this is a welcome clarification on the status of a mother as a primary victim, and is big step forward for mothers who have been exposed to negligence during labour."
If you or a loved one have been the victim of negligent treatment or advice during pregnancy, please give David a call on 01603 620508, or email us for a free no obligation chat.