Oscar Wilde wrote the play “The Importance of Being Earnest”, but the case of Darnley-v- Croydon Health Services NHS Trust (2018), reported in the legal press, on 11 October 2018, now stresses the importance of being accurate in terms of information supplied to patients and would-be patients.
Briefly, Mr Darnley attended at the Trust’s A&E department after suffering a head injury, believed to be as a result of being in a fight.
The receptionist told him that he would be likely to have to wait for 4-5 hours to be seen. After 19 minutes, Mr Darnley decided he couldn’t wait and went home.
He didn’t tell anyone he was leaving and hadn’t been seen by anyone. He arrived home and collapsed shortly after and was returned to hospital by ambulance.
He required surgery, but still suffered permanent brain damage in the form of a left sided paralysis.
His claim for damages was rejected by the first Court and then by the Court of Appeal. However, the Supreme Court, the highest Court in the land have now ruled that his claim should succeed because the hospital breached their duty of care to him because their receptionist failed to explain the waiting times fully to him. She should have explained that although there could be an up to 5 hour wait, he was likely to be seen within 30 minutes by a “triage” nurse for assessment of the nature and extent of his injury. Had she done so, it is likely that Mr Darnley would not have left the hospital, would have waited to be assessed and the head injury spotted and treated. Thus he would not have suffered the brain damage he did. The 11 minutes proved crucial. The Court held the receptionist’s information to be “misleading”.
At earlier hearings, the Courts accepted the proposition that Mr Darnley had caused, or at least contributed to his own injury by leaving without telling anyone. The Supreme Court rejected this argument. His decision to leave was based on the receptionist’s “incomplete” information. A reasonable person, faced with this information, could be reasonably foreseeably expected to decide not to wait that long and to leave, especially if they had no idea that they had, or could have, if not treated, a significant injury.
It was also argued earlier that the hospital owed no duty of care to Mr Darnley, through their receptionists, to advise on waiting times. Not so, said the Supreme Court. There was an established category of a duty of care which was that the Trust, responsible for running the A&E department, had to take reasonable care not to cause physical injury to those “who presented themselves complaining of illness or injury”. This duty existed before the would-be patient was treated. This is well established law and is not a new duty. The Court said:
“Once the Appellant (the Claimant, Mr Darnley) had presented at A&E seeking medical attention, had provided the information required by the receptionist and had been ‘booked in’, he entered into a patient/healthcare provider relationship with the Trust and was in a distinct and recognisable situation in which the law imposed a duty of care. The scope of that duty clearly extended to a duty to take reasonable care not to provide misleading information which might foreseeably cause physical injury”
The Court made no distinction between “medically qualified professionals” and “administrative staff”. The receptionists were the first point of contact and as such, were responsible for providing accurate information. The Court accepted that while it would be and was impossible for receptionists to give every single patient accurate information as to when precisely they might be seen, they needed to take reasonable care not to provide information that could be misleading.
So what could be the implications of this case?
It is important to stress that what the case is NOT saying is that there can be a claim every time there is a delay in A&E, or every time someone waiting is not seen when they expected to be, or think they should have been. The important thing to remember that any potentially misleading information on timings MUST have a detrimental effect on the would – be patient concerned. Every case will be individually fact specific. It will not be enough to try to make a claim on the basis that you were kept waiting an hour longer than you were told. That extra hour will have to be proved to be crucial in causing you to suffer an injury, or to have an existing injury made worse. This is the established legal concept of “causation” – any breach of duty has to CAUSE something detrimental. If it doesn’t and the outcome is the same as it was had the breach not occurred, then a claim is unlikely.
A&E departments are being inundated with potential patients, some more appropriate than others. It is thought that this is at least in part due to the shortage of GP’s and the difficulty in actually getting an appointment at your on GP’s surgery. A 3 week waiting list is, somewhat surprisingly perhaps, not unusual.
But hospital trusts know this happening and even though they would rather it didn’t, they need to take on board that it is and it doesn’t look like easing any time soon. Therefore they need to try and make provision for it. We accept that this may be easier said than done, but our medical negligence team have seen a steady rise in “systems failure” injuries, which are not caused by poor treatment, but the failure in being able to access that treatment in the first place.
We are not advocating that receptionists should be trained to take the place of medically qualified staff, nor act as triage nurses when a person first presents themselves. The Court is not suggesting this either. That would be inappropriate. What they are saying is that Trusts need to improve the provision of information, potentially so that people can make an informed decision for themselves whether they stay and wait or go. If someone has been given complete and correct information, then if they do leave, it may not then be the hospital’s fault if they later deteriorate.
Improvements such as electronic signs, prominently displayed (as on many bus stops!) giving any changes in waiting times could help. Training receptionists and putting up signs and leaflets to tell patients not to leave without telling reception would be an improvement. Remind patients that if they do feel worse whilst waiting they should report it. There will of course always be people who will try and “jump the queue” by doing this, but better that than someone suffering in silence and decreasing their prospects of successful treatment by the minute, surely?