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Duty of care: hospital not liable for non-clinical staff giving incorrect A&E waiting time

Darnley v Croydon Health Services NHS Trust
High Court
31.7.15

Andrew Cousins and Tracy Sell-Peters review this interesting decision limiting the expansion of duties placed on hospitals. In Darnley v Croydon Health Services NHS Trust, the High Court held that the Trust did not have a duty of care to provide accurate waiting times to patients attending A&E.

Facts

The Claimant was the victim of an assault and sustained an injury to the head. He was taken to hospital but the judge found he left some 19 minutes after arriving without being seen by a clinician. Having returned home his condition deteriorated and an ambulance took him back to hospital later the same evening. He was found to have suffered an extra-dural haematoma, requiring neurosurgery and he suffered a neurological injury.

The Claimant claimed that during his time at hospital there were breaches of duty by both clinical and non-clinical staff. It was alleged that the reception staff gave inaccurate information about the length of time which he would have to wait, that he was not assessed as a priority triage and that the clinical staff failed to assess him during his time at the hospital.

The Claimant alleged that he was told by the receptionist (incorrectly) that he would have to wait 4 to 5 hours to be seen and that if he had been told that he would actually be assessed by a triage nurse within 30 minutes he would have stayed at the hospital. It was further alleged that the Defendant had failed to comply with the National Institute for Health & Care Excellence (NICE) clinical guidelines which provided that head injury patients should be assessed by a clinician within 15 minutes of arrival at hospital.

Findings

HHJ Robinson dismissing the Claimant’s claim:

  • The Court was only concerned with the issue of liability and the claim was dismissed. As a finding of fact the Court concluded that the Claimant had stayed at the hospital for a maximum of 19 minutes after being told that he would be seen within 4 to 5 hours. However, on the evidence, the Claimant’s condition was not such as to have alerted the non-clinical receptionist to the presence of a serious condition requiring priority attention by a triage nurse.

  • In relation to the NICE clinical guidelines, the Court did not accept that failing to meet a 15 minute target by 4 minutes constituted a breach of clinical duty. The consensus amongst the experts was that the longest allowable target was 30 minutes. The Claimant not being seen within 19 minutes therefore did not amount to a breach and in any event did not cause a loss.

  • When considering whether the non-clinical staff had a duty to inform the Claimant if he would be seen within 30 minutes, the Court considered the three stage test from Caparo Industries Plc v Dickman [1990]. It was reasonably foreseeable that not treating patients could lead to harm and that a person who was informed that the waiting time would be 4 to 5 hours, rather than 30 minutes, may leave before he could be seen. However A&E receptionists were not under a duty to guard patients against the harm that may result from their decision to leave the hospital even if that harm could be prevented by giving more accurate information about waiting times.

  • The Court concluded that it would not be fair, just and reasonable to impose a liability on a defendant hospital for the receptionist not giving full and accurate information about waiting times. The receptionist’s task was to complete registration forms and the provision of waiting times was a courtesy. To impose liability in damages for failure to provide the information or for providing inaccurate information would be a step too far and would not be fair, just and reasonable.

  • The court also found that, had the claimant been told he would be seen within 30 minutes, he would not have left A&E, his brain haemorrhage would have occurred whilst in hospital, he would have received urgent treatment and would not have suffered neurological injury. Ultimately however, the Claimant had chosen to leave the hospital and the Defendant was not liable to compensate him.

Comment

The case limits the expansion of duties that are placed on hospitals. Had the Claimant succeeded then the duty of care owed by a hospital would have been expanded to non-clinical staff which would have significantly expanded the remit of a hospital’s liability.

Whilst a receptionist has to ensure that they complete the registration task competently because clinical judgments may be made on the information they take, the waiting time for a patient is a matter of clinical judgement and not simply imposed by strict adherence to a queueing system. Had the Court found in favour of the Claimant and allowed the claim, the Judge considered that reception staff would become unhelpful towards patients and not inform them of waiting times and that they would only complete registration forms. This would be undesirable and was a situation that should not be allowed to arise.

The Court found that ultimately the Claimant’s actions in leaving the hospital had broken the connection between any alleged deficiency of the information which had been provided to him and the harm he suffered. He knew that he had been hit over the head, that he was in pain but would ultimately be seen if he stayed in hospital. He chose to leave and had to accept the consequences of that decision rather than try to blame the Defendant.

The decision therefore is an indicator as to how far the Court is willing to impose liability on a hospital. The test set out in Caparo is still the leading consideration for the Courts in determining whether a duty of care should be imposed upon a defendant.

There is often no perfect answer to whether it is “fair, just and reasonable” to impose a duty upon a defendant and decisions can, and do, vary. With this decision, the Court has drawn a “line in the sand” about how far it is willing to impose a duty upon a defendant under conditions where clinical guidelines were only narrowly missed, and the Claimant chose to leave the hospital of his own accord which is, of course, far from exceptional, given how overstretched A&E departments are.

Contact

For further information please contact Andrew Cousins, Senior Solicitor Advocate, Insurance on +44 (0)161 603 5093

By Andrew Cousins and Tracy Sell-Peters

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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