A duty on the hospital not to provide misleading information in A&E

What duty does a receptionist in A&E owe a person who attends seeking medical attention in providing information about the likely wait in being seen?

The Supreme Court in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 was concerned with a man who attended A&E following a head injury and was told by the receptionist that he would have to wait for up to 4 or 5 hours to be seen by a doctor.  Feeling unwell, after 19 minutes he decided to go home where a little over an hour later he collapsed.  Despite surgery he suffered permanent brain damage which would have been avoided had he collapsed while in hospital.

He was not informed by the receptionist that he would have been seen by a triage nurse within about 30 minutes of booking in at A&E.  The trial judge found that if he had been told that, he would have stayed and would have been seen by the triage nurse.  He would then have been admitted or told that he should wait, and in those circumstances his collapse would have been in hospital.  His decision to leave was in part at least made on the basis of the information provided by the receptionist which was inaccurate and misleading.  The judge also found that it was reasonably foreseeable that patients do leave A&E without being seen or treated and that in such cases harm may result and that it was reasonably foreseeable that someone who believes it will be 4 or 5 hours before they are seen by a doctor may decide to leave in circumstances where they would have stayed if they believed they would seen much sooner by a triage nurse.

Reversing the decision of the trial judge and the Court of Appeal on liability the Supreme Court held that this situation came within the well-established duty of care owed by those providing and running a casualty department to those presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards to take reasonable care not to cause physical injury to the patient.  By booking in the patient, he was entered into a relationship with the hospital. The duty included a duty not to provide misleading information which might foreseeably cause physical injury.  The duty was owed by the hospital trust and it was not appropriate to distinguish between medical and non-medical staff.

The receptionists on duty at the material time were both aware of the standard procedure under which someone complaining of a head injury would be seen by a triage nurse within 30 minutes.  The patient was misinformed and therefore misled as to the availability of medical assistance.  That was negligent, that is it fell below the standard to be expected of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.

Give the trial judge’s findings relevant to causation, that negligence caused injury because in the absence of the negligence the patient would have stayed in the department, collapsed in hospital and been treated with the likelihood of a near complete recovery.  The patient’s decision to leave did not interfere with that causation and was based in part at least on the misleading information provided by the receptionist.

It took the Supreme Court to put right the trial judge and the majority in the Court of Appeal, who were concerned at adding an additional layer of responsibility on clerical staff, and creating a new head of liability for NHS trusts, and concerned about ‘undesirable social consequences’ were the duty imposed on emergency departments.  But the Supreme Court decision was in fact only applying established legal principle and established legal duties on the Trust because there is a well-established duty of care owed by those providing and running a casualty department to those presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards to take reasonable care not to cause physical injury to the patient, and therefore not to provide misleading information.  It would have taken little by way of instruction to ensure that the misleading information in this case was not given by the receptionist, with its foreseeable and disastrous results.

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Important lessons for the expert witness from a recent case concerning bowel surgery

The recent case of Saunders v Central Manchester University Hospitals NHS Foundation was a claim for alleged clinical negligence resulting in ischaemic necrosis of the large bowel during surgery for reversal of an ileostomy. The issue was whether the damage to the blood supply to the bowel was the result of surgery or a naturally occurring blood clot.  Neither a spontaneous thrombotic event nor damage by excessive traction or torsion to the superior mesenteric artery during surgery had been described in the medical literature.

So far as the evidence of the two expert witnesses was concerned, the judge described one as ‘robust but at times [he] appeared unwilling to reflect on alternative viewpoints’, and the other as ‘more reflective but [he] was sometimes a little vague’.  The judge went on: ‘Neither approach was particularly unusual.  Each had its advantages and disadvantages.’ (para 33)

The joint statement was significantly criticised (paras 34 and 35).  It is worth recalling the purpose of the joint statement –

‘…following a discussion between the experts they must prepare a statement for the court setting out those issues on which –

(a) they agree; and

(b) they disagree, with a summary of their reasons for disagreeing.’ (CPR 35.12(3))

In this case the joint statement ran to 60 pages and failed ‘to agree and narrow issues’ (PD35 9.2) but, the judge found, ‘served only to confuse rather than assist’.  The problem was compounded by their being 2 agendas, as the parties’ lawyers had been unable to agree one consolidated agenda.  The judge pointed out:

The joint statement is an important document.  It ought to be possible to read it and to understand the key issues and each expert’s position on those issues … Frankly, the approach to the joint statement in this case achieved nothing of value.

The case failed because the claimant’s expert had not, to the judge’s satisfaction, offered a clear explanation of the likely mechanism of surgical injury, although he offered a number of possibilities.  His evidence was ‘somewhat vague and shifting.  He admitted he was starting from the position that something must have happened.  He offered various possible explanations, but it was clear he found the mechanism difficult to explain.  He settled on the likely cause being excessive traction … he still found it very difficult to say what [the surgeon] was likely to have done wrong’ (para 81).  There were factors pointing ‘both ways’ so that the judge concluded that she ‘was not able to conclusively exclude the possibility of either of these rare events by reference to the expert evidence alone.’  However the surgeon’s evidence was accepted that nothing unusual happened in the operation and that this was an entirely straightforward procedure.  Therefore the judge was not satisfied on the balance of probabilities that the injury resulted from surgical damage, and the claim failed.

A further problem for the claimant was that his expert suggested that the damage may have occurred because the claimant’s anatomy was such that it was particularly easy for damage to be done. That being so then the question would arise as to how in those circumstances causing such damage was evidence that the standard of care of the surgeon fell below that to be expected of a reasonably competent surgeon (‘Bolam’).

This case is an important reminder that:

  1. The way in which an expert gives evidence in court is important to, and will be assessed by, the judge.
  2. The joint statement should be a concise and useful document written to assist the judge in narrowing the issues and summarising the reasons for disagreement. To provide that is part of the expert’s duty to the court – ‘It is the duty of experts to help the court on matters within their expertise’ (CPR 35.3(1)) – as well as a requirement of the Rule and Practice Direction in relation to joint statements.
  3. Experts must be able to provide a clear, logical and convincing explanation of how their conclusion or opinion is reached, and therefore why it is the correct opinion. This is particularly so for the claimant’s expert because of the burden of proving the claim.
  4. In providing a conclusion or opinion, the expert must keep well in mind the appropriate legal test, in this case the Bolam test.

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