Boate v Millenium Pharmacy: County Court allows secondary victim claim after fatal morphine overdose to proceed

The County Court has refused applications to strike out or grant summary judgment in a mother’s claim for psychiatric injury after her daughter died following an alleged morphine dispensing error. The decision in Esther Boate v Twin Ventures International Limited t/a Millenium Pharmacy & Anor [2026] EWCC 66 considers whether the administration of an incorrectly concentrated medication could constitute an “accident” for the purposes of secondary victim claims following the Supreme Court’s decision in Paul v Royal Wolverhampton NHS Trust.

His Honour Judge Holmes held that Ms Boate’s claim had a real prospect of success and should proceed to trial. The court did not determine liability or whether the claimant would ultimately establish the facts necessary to recover damages.

Juanita was born in May 2020 with complex congenital conditions for which treatment was not available. She was discharged from hospital under a palliative care plan that included morphine solution, administered through a nasogastric tube when required to relieve pain or breathing distress.

In late August 2020, a further supply was prescribed and dispensed. The intended concentration was 100 micrograms per millilitre, but the pharmacist supplied a solution approximately 20 times stronger than intended without specifying the volume to administer.

On 3 September 2020, Ms Boate gave her daughter the medication. Juanita immediately collapsed and experienced serious respiratory complications. She was taken to hospital, where treatment reversed the morphine intoxication sufficiently to stabilise her breathing, but she required intubation. She died six days later. The inquest recorded her cause of death as her congenital conditions following an accidental morphine overdose.

Ms Boate alleges that the events caused post-traumatic stress disorder and severe depressive disorder. The defendants sought to strike out the claim or obtain summary judgment, arguing that it could not satisfy the legal requirements for a secondary victim claim.

Applying the Supreme Court’s accident test

In Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, the Supreme Court held that secondary victim claims arising from witnessing a relative’s medical crisis caused by negligently untreated illness could not succeed merely because the claimant witnessed the illness, injury or death. The established framework instead requires an accident, understood as an unexpected and unintended external event causing, or potentially causing, injury through violent external means.

The defendants argued that Ms Boate had performed the routine act of administering medication through a nasogastric tube, as she had done previously. She had no reason to anticipate harm, and the administration itself was not an accident within the meaning of Paul.

For Ms Boate, it was argued that the Supreme Court had expressly left open, at paragraph 123 of Paul, whether administering an incorrect drug or dose could constitute an accident in a medical setting. The claimant submitted that the issue required examination at trial.

Judge Holmes accepted that the Supreme Court had not conclusively resolved this specific scenario. He considered that the administration of a substance into the body could amount to an external event capable of causing injury. The court saw no principled reason, at this stage, to distinguish between an injection and medication delivered through a nasogastric tube.

The judge also considered the alleged immediate connection between administering the morphine and Juanita’s acute reaction significant. If the reaction occurred immediately or almost immediately, that could support a finding that the event fell within the accident test in Paul.

Proximity and the claim’s prospects

The court further distinguished the case from Paul, where the claims concerned relatives witnessing medical conditions that negligent diagnosis or treatment had failed to prevent.

Ms Boate was directly involved in Juanita’s home palliative care. The judge considered there was a real prospect of establishing that the prescribing doctor and dispensing pharmacist should have foreseen that negligent medication handling could expose the mother to administering a toxic substance to her child, with resulting psychiatric harm.

The judge also drew comparisons with earlier cases involving claimants inadvertently placed in the position of participating in, or being implicated in, events causing injury to others.

Emphasising that the precise facts and legal findings would need to be determined at trial, Judge Holmes dismissed both defendants’ applications. The ruling leaves open whether Ms Boate will ultimately establish the elements of a successful secondary victim claim.

The decision provides a further illustration of the unresolved boundaries of the accident requirement established in Paul, particularly where alleged clinical negligence results in an immediate physical reaction witnessed by a close relative who has personally administered the medication.