Dave Berry | Partner

The Waiting Game

Darnley v. Croyden Health Services NHS Trust [2017] EWCA Civ 151 is an English case concerning an appeal brought by Mr Darnley (“the claimant”) based upon the alleged negligence of a non-clinical Accident and Emergency Receptionist.

The case hinged on whether a non-clinical receptionist owed any duty to provide accurate information – or not provide inaccurate information – regarding A&E waiting times.

On 17 May 2010 the claimant was assaulted, sustaining a violent blow to his head. He was driven by a friend to A&E. The A&E receptionist noted the claimant’s details which included that he had been suffering with considerable pain from a head injury which had persisted for approximately an hour and a half. He was advised that he could be waiting 4 to 5 hours to be seen. This information was not correct. The system implemented by the A&E department was that head injury patients would be triaged by a nurse within 30 minutes of arrival to determine priority.

After 19 minutes and without advising reception staff, the claimant left the A&E department to return home for paracetamol. The triage nurse looked for the claimant but could not find him.

Unfortunately his condition thereafter rapidly deteriorated. An ambulance was called, he returned to hospital and a CT scan revealed an extradural haematoma. Neurosurgery could not prevent serious permanent injury.

The claimant’s position was that he should have been triaged within 15 minutes per NICE (The National Institute for Health and Care Excellence) Guidelines. If that was not accepted, his second position was that reception staff were negligent in advising him he would have a 4-5 hour wait. It was also the claimant’s position that if he was advised he would be triaged within 30 minutes he would have waited.

The Health Board denied liability. However, they did admit that if the claimant had been present when called for triage, he would have been prioritised and that if he had received that prioritised treatment he would have made a full recovery.

The experts agreed that the claimant should have been triaged within 30 minutes of arrival notwithstanding NICE Guidelines stating 15 minutes. Effectively, in a busy A&E department 15 minutes was unachievable.

At First Instance it was held:

  1. The claimant’s condition on arrival was not such that a non-clinical member of staff would have appreciated requirement for priority triage.
  2. Given pressure on A&E that night failure to triage within 15 minutes was not a breach of duty
  3. There would have been a breach of duty if the claimant was not triaged within 30 minutes.
  4. It was not part of the reception staff’s duty to give information about waiting times. They were therefore not in breach of duty for providing inaccurate information on waiting times.
  5. It was neither just nor reasonable to impose such a duty upon them.
  6. Even if their actions amounted to a breach of duty, it was not causative of Mr Darnley’s injury, but rather the cause of the injury was his decision to leave the hospital.

The claimant failed.

The case was appealed on the following grounds:

  1. The failure to triage within 15 minutes was a breach of duty, even if the claimant was not assessed as a priority.
  2. The claimant’s presentation on arrival merited priority triage.
  3. The judge erred in assessing the scope of duty owed by reception staff.
  4. The judge erred in his application of “fair, just and reasonable”.

The primary grounds of appeal were points 3 and 4.

At Appeal it was held:

1. Failure to Triage within 15 minutes

This ground of appeal was rejected. Upon attending A&E the claimant was coherent and able to respond to questioning. He was reasonably not considered a priority case.

The failure to triage within 19 minutes was not a breach of duty. On a busy night, such as the night in question it may not be possible to triage all head injury patients within 15 minutes. The failure to meet a target time by 4 minutes was not in itself proof of breach of clinical duty of care. Rather, the longstop time was 30 minutes.

2. Was there breach of duty by the receptionist? Did this cause injury?

The following findings in fact were made by the judge at First Instance:

– The receptionist told the claimant he would not be seen for 4-5 hours
– She did not tell the claimant he would be triaged within 30 minutes, despite this being normal practice
– If the claimant had been told he was to be seen within 30 minutes he would have waited.
– It was reasonably foreseeable that a person who believes their wait may be 4-5 hours may leave before being seen.

The claimant alleged that it was the duty of the receptionist to take reasonable care to give accurate information, including not to give inaccurate information on waiting times. He attempted to draw comparison between an A&E receptionist and an ambulance service telephonist per Kent v. Griffiths [2001] QB 36 where a telephonist was negligent for giving incorrect information.

The appeal court drew a fine distinction between the A&E receptionist and ambulance service telephonist on the basis that the law imposes duty on the ambulance service telephonist to provide accurate information to paramedics and patients as that information will necessarily be relied upon by those individuals. Moreover, the consequences of providing inaccurate information by the ambulance service telephonist would be clearly understood.

In contrast an A&E receptionist’s role was considered to be different. It was held that their primary duty was simply to record details of new arrivals, advise where to wait, and pass details to triage nurses. Their function was not to give any wider advice or information.

The A&E receptionist in giving inaccurate information was not assuming responsibility to the claimant or accepting the catastrophic consequences were that advice incorrect; “foreseeability alone is not sufficient to give rise to a duty of care”.

The appeal court held it was not just fair or reasonable to impose upon the A&E receptionist, a duty to not provide inaccurate information about waiting times. It was felt that to do so would add a new layer of responsibility to clerical staff, and a new head of liability to NHS health trusts.

In essence the appeal court was concerned, as was the judge at First Instance with “opening the floodgates”, as the ability of A&E receptionists to provide accurate waiting time information in a busy A&E department must be fraught with difficulty.

Moreover, even if there was a breach of duty, the chain of causation was broken by the claimant simply walking out of the hospital without advising anyone as to his decision.

The appeal was therefore dismissed by majority with a dissenting opinion by Lord Justice McCombe.

Whilst an English authority this case provides a useful reminder as to how difficult clinical negligence cases can be to pursue, particularly when directed against an overburdened NHS and how legal principles can often be overshadowed by larger policy considerations. In addition, the case also acts as a reminder that NICE Guidelines are simply that, guidelines and that negligence is not established upon breach of guidelines alone, but rather on the basis of expert evidence as to what is accepted practice, in Scotland per Hunter v. Hanley [1955] SLT 213.

Dave Berry

Dave Berry

Personal Injury Team

“It may be something of a cliché but I enjoy helping my clients and guiding them through what can often be the daunting prospect of being involved in a personal injury court action, whilst also ensuring I obtain the best possible result for them.”

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