Darnley v Croydon Health Services NHS Trust  EWCA Civ 151
This Court of Appeal Judgment was published back in March of 2017, but it is an interesting and topical decision, especially given how busy A & E departments are on a day to day basis. Indeed this Judgment notes that in England there are about 450,000 visits to A & E each week.
This case centres on whether a civilian receptionist (the term used by the Court in this case to describe a receptionist with no clinical experience) owes a duty of care to a patient when she provides them with an inaccurate time estimate as to when they will be seen.
In May 2010, Mr Darnley was subject to an assault which resulted in a head injury and subsequently attended the A & E department of Croydon University Hospital (which at the time was “Mayday University Hospital”).
Upon arrival at A & E, Mr Darnley provided his details to the receptionist and it was noted that he was complaining of a head injury with a duration of 1hr and 26 minutes. He told the receptionist that he was in considerable pain. She told him to be seated and that there would be a wait of four – five hours before he was seen.
After a nineteen minute wait in the A & E department, Mr Darnley decided he was going to leave and take paracetamol.
The receptionist had failed to explain that within 30 minutes of arrival, Mr Darnley would in fact be assessed by a triage nurse and that nurse would decide how soon he would see a doctor. Whilst some patients that night may have had to wait four or five hours, a patient with a serious head injury would not have had to wait that long.
Unfortunately, Mr Darnley’s condition deteriorated when he left. An ambulance was called later in the night and the Claimant was required to undergo neurosurgery. By this stage permanent injury had occurred in the form of left hemiplegia and Mr Darnley suffered long term disabilities.
The legal question
The question that the trial judge at first instance faced, and subsequently the Court of Appeal had to deal with was whether the receptionist owed a duty of care to the Claimant?
The decision at first instance
Among other points in the Judgment, the trial Judge at first instance found that to impose a duty of care on the reception staff would not be “fair, just and reasonable”.
He found alternatively that even if there was a duty imposed on the receptionist, the inaccurate information in relation to waiting time did not cause the Claimant’s injury and the Claimant must take responsibility for his decision to leave
The Claimant appealed to the Court of Appeal on four grounds, which are helpfully summarised by Lord Justice Jackson. He noted those grounds were:
“i) The defendant’s failure to triage the claimant within 15 minutes was a breach
of duty, even if he was not assessed as priority.
- ii) Contrary to the judge’s finding, the claimant’s presentation on arrival was such
as to merit priority triage.
iii) The judge erred in assessing the scope of the duty owed by the reception staff.
- iv) The judge erred in his application of the “fair, just and reasonable” test.”
In relation to the first and second grounds, the COA found that the Judge was entitled to reach the decision that the Claimant’s presentation meant that he was not a case for priority triage. In addition the trial Judge found that whilst the nurses did not carry out triage on the Claimant within 15 minutes (which is in accordance with NICE guideline target times), this was not in itself a breach of duty and a longstop of 30 minutes seems appropriate. (Indeed the triage nurse had come to see him but he had already left at this time). The COA found the Judge was also entitled to reach this decision and accordingly the first two grounds of appeal were dismissed.
When dealing with whether the receptionist owed a duty of care, Lord Justice Jackson noted that the receptionist’s role was to record information, tell patients where to wait and then pass the relevant details to the triage nurse. He did not find that it was their function to give out wider advice nor did he find that her comment in relation to the waiting time was an actionable misstatement.
In addition, Lord Justice Jackson did not believe that it would be fair, just or reasonable to add a duty not to provide inaccurate information about waiting times. He was also sympathetic to floodgate arguments.
In any event, Lord Justice Jackson also noted that even if there was a breach of duty in the receptionist offering inaccurate information, the claim could not succeed as the scope of the duty could not extend to cover the consequences in which a patient walks out of A & E without informing staff.
Lord Justice McCombe and Lord Justice Sales
Interestingly, whilst Lord Justice Sales agreed with Lord Justice Jackson on the appeal being dismissed, Lord Justice McCombe gave a dissenting opinion.
He commented that the hospital had an overall duty and dealing with the facts specific to this case, it seemed to him that had the Claimant been given the correct information, he would not have suffered his injury. He was of the view the claim should have succeeded.
Whilst the case was dismissed, it does raise several interesting questions, especially in light of Lord Justice McCombe’s dissenting opinion.
Would the floodgates necessarily be opened if each case was decided fact specifically? Should a hospital have an overall duty to not provide inaccurate information to a patient (whoever gives that information)?
Does a patient need to accept responsibility if they choose to leave without informing staff?
Readers should note that this is not intended to be definitive legal advice but rather a summary and comment on the facts specific to this case.
Lois Norris, Legal Services Manager at Gerard McDermott QC Limited and Legal Assistant to Gerard McDermott QC