Third party cannot recover damages for a personal injury suffered because of an omission in the treatment of another.
On 19th March 2003, NC was seen by a consultant neurologist at the Defendant Trust with a complex presentation of neurological impairment. As part of the diagnostic work up, testing was ordered of very long chain fatty acids (VLCFA). Unfortunately, the test was not in fact done until August 2006; the result was abnormal and identified him as a carrier of adrenoleukodystrophy (‘ALD’), a genetic disorder, of which his family members were also at significant risk of being carriers.
In Smith v University Hospitals of Leicester NHS Trust [2016] EWHC 817 (QB), the Claimants were NC’s second cousins. Callum Smith had been diagnosed with ALD following an acute admission on 23rd March 2006. He was then 6 years old. Unfortunately, the ALD was, in his case, too advanced for treatment and on 26th April 2012 he died, aged just 12 years old. Connor Smith’s diagnosis was made following, and because of, that made in his brother. Because the disease was not so advanced in him, he survived, with appropriate treatment but still suffers from significant intellectual and neuropsychological problems.
The Claimants alleged that the Trust was in breach of its duty of care in failing to perform the VLCFA test when it was ordered in 2003. It was said that had it been done, it would have been positive; a positive result would have led to testing of the wider family which would have included the Claimants; this in turn would have led to their diagnosis some 2 ½ to 3 years earlier than was in fact the case. An earlier diagnosis, it is said, would have led to a materially improved outcome for both Callum and Connor.
The Defendant Trust, represented by John Whitting QC, successfully applied to strike out both claims pursuant to CPR Part 3.4(2)(a). The Court found that there is no duty between a doctor/hospital and someone who is not a patient; in other words, a third party cannot recover damages for a personal injury suffered because of an omission in the treatment of another.
To extend a duty of care to a patient’s second cousins (even though on the particular facts of this case there was the potential for them to be affected by an omission in the treatment of that patient) would be to go well beyond the existing law and failed, therefore, the test of that which is ‘fair, just and reasonable’.
