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Is a hospital liable for a receptionist's negligent advice?

  • Published: November 08, 2018
  • Author: Paul Sankey, Partner, Enable Law

Darnley v Croydon Health Services NHS Trust (2018)

A receptionist in Accident and Emergency tells a patient he would have to wait four to five hours to see a doctor. The advice is wrong. The patient leaves. He suffers injury as a result. Is the hospital liable for damages?

This was the issue that came before the Supreme Court in Darnley v Croydon Health Services NHS Trust. The claim had failed both at trial and in the Court of Appeal. But the Supreme Court disagreed.

What happened

Michael Darnley, a 26-year-old man, was assaulted. He suffered a head injury. A friend took him to Mayday Hospital in Croydon. They arrived at the Emergency Department just before 8.30pm.

They spoke to the reception. Mr Darnley said he had a head injury, his head hurt and he felt unwell. The receptionist had what was described at trial as an unhelpful attitude. She told him he would have to wait four or five hours to see a doctor. In fact, this was incorrect. He would be triaged within 30 minutes and how long he waited would depend on the level of priority he was given in triage. He said he felt as though he was about to collapse. She said that if he collapsed, he would be treated as an emergency. This may not have been very reassuring.

Mr Darnley sat down to wait but soon felt too unwell to stay. He thought he would be better off going home and taking paracetamol. So, after 19 minutes, he left without telling the receptionist.

The friend took him to his mother's house, where they arrived just after 9.10pm. Mr Darnley went to bed but felt worse. An ambulance was called. The ambulance arrived at 10.05pm and took him back to Mayday Hospital. On the way, he deteriorated. Mr Darnley reached the hospital just after 10.30pm. He had a CT scan which showed an extra-dural haematoma with marked midline shift. He was transferred to St George's Hospital and was taken to theatre for urgent surgery to remove the haematoma.

Despite the operation, he suffered permanent brain damage and was left with severe disabling hemiplegia.

The trial of his claim

Mr Darnley sought damages against Croydon Health Services NHS Trust, which was responsible for Mayday Hospital. His claim was that the receptionist was negligent in advising him that he would have to wait four to five hours to see a doctor and, had he been correctly advised, he would have stayed. Mr Darnley would still have collapsed but the collapse would have happened in hospital, and he would have undergone surgery sooner, avoiding his devastating brain damage.

The judge found that the receptionist's advice was incorrect, that it was foreseeable that a patient given that advice may not stay and that, had he stayed, he would have avoided his brain injury. However, the judge thought that a hospital should not be liable for negligence of a receptionist (as opposed to a member of the clinical staff) causing harm and that it was Mr Darnley's decision to leave, rather than the receptionist's advice, which caused the damage.

The appeals and the Supreme Court decision

Mr Darnley appealed first, unsuccessfully, to the Court of Appeal and then to the Supreme Court. The Court of Appeal upheld the trial judge's decision but the Supreme Court took a different view.

The first issue was whether reception staff were under a duty to give accurate information, or at least, not to give inaccurate information.

In the Court of Appeal, Jackson LJ and Sales LJ agreed with the trial judge that any information receptionists provided to patients was no more than a courtesy. It went beyond their role of registering patients. They were not liable if that information proved to be wrong. Jackson LJ thought that, to impose a duty in these circumstances, went beyond the existing law and would impose a new ground of liability. The floodgates would open. Hospitals would prevent receptionists from giving any information about waiting times to patients and patients would be worse off.

The Supreme Court did not agree. It was established in law that Emergency Departments had a duty to take reasonable care of patients. They had a duty not to give misleading information that could foreseeably cause harm.

The second issue was whether the duty was limited to medical as opposed to non-medical staff.

According to the Supreme Court, the duty governs all staff. There is no distinction in principle between medical and non-medical staff. The hospital was under a duty to patients and that duty must be considered. What was expected of staff would of course vary according to their role. So, a different degree of skill may be expected of non-medical staff.

The third issue was whether the receptionist was, in fact, in breach of duty.

The standard of care expected of the receptionist was that of an averagely competent and well-informed receptionist in an emergency department. It was reasonable to tell patients they would normally be seen for triage within half an hour. This is not what the receptionist in this case told Mr Darnley. She incorrectly said that he would have to wait up to four or five hours to see a doctor. That advice was wrong. It was foreseeable that a patient such as Mr Darnley who had been given that advice may decide to leave. It followed that the receptionist had breached her duty.

The final issue was whether that advice was the cause of Mr Darnley's loss.

The trial judge found that Mr Darnley's loss was caused by his decision to leave rather than the receptionist's advice. That finding was somewhat unsympathetic given that he also found that it was foreseeable that a patient given such wrong advice may decide to leave. The Court of the Appeal agreed with the trial judge. According to Jackson LJ, "…there comes a point where people must accept responsibility for their own actions. The claimant was told to wait. He chose not to do so. Without informing anyone of his decision, he simply walked out of the hospital".

Again, the Supreme Court took a different view. The trial judge and the Court of Appeal had not taken into account the impact on Mr Darnley of what the receptionist had said. The trial judge had in fact found that:

1. Mr Darnley would have stayed if he had been told he would be triaged within 30 minutes.
2. Incorrect information from the receptionist was part of the reason for him leaving.
3. It was reasonably foreseeable that a patient told he would not be seen by a doctor for four to five hours may decide to leave.

Mr Darnley, therefore, won his appeal.

Comment

Darnley is an unusual case. But, as the Supreme Court recognised, it has really developed the law as much as applied existing legal principles. It clarifies that hospitals are responsible in principle for the advice they give patients, whether that advice is provided by clinical or administrative staff.

The Court of Appeal was clearly worried that the finding for Mr Darnley would expose the NHS to large numbers of claims. They suggested that, when circumstances changed in emergency departments, reception staff would have to find patients to make sure they knew their advice had now changed. Sales LJ commented that it would not be just or reasonable "to impose a duty of fine-grained perfection". But, in so doing, it was knocking down a straw man. The duty is only to do what is reasonable. Receptionists should know how their departments operate and should be able to give appropriate advice to patients. It is not arduous to tell patients what normal timescales would be and perfectly reasonable that patients should have this information.

The decision may well have implications beyond receptionists in emergency departments. It could well apply to receptionists in other areas of hospital work and GP surgeries.

Ultimately, the decision is entirely reasonable and ensures reasonable care for patients without imposing a burdensome duty on hospitals.

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