Medico-legal Minder previously reported on the decision of a judge to award against a doctor, who wrongly reassured a mother who wished to establish if she carried the haemophilia gene, damages in relation to the cost of bringing up a child with haemophilia and autism. The Court of Appeal has considered the case (Khan v MNX  EWCA Civ 2609) and has ruled that the judge’s decision was wrong.
The purpose of the mother’s consultation with the doctor was to enable her to make an informed decision in respect of any child she conceived who was subsequently found to be carrying the haemophilia gene. The doctor was liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and consequent upon it no termination of the pregnancy. However the mother took the risks of all other potential difficulties of the pregnancy and birth. The doctor had no duty to prevent the child’s birth and the risks of a child being born with autism was not increased by the doctor’s advice.
In legal terms, the Court of Appeal ruled that the judge had failed to apply the “scope of duty” test set out in South Australia Asset Management Corp v York Montague Ltd  AC 191 but instead had applied the “but for” causation test. The South Australia case required there to be an adequate link between the breach of duty (the negligent advice) and the particular type of loss claimed, and laid down a 3-stage test: (i) what was the purpose of the advice which was negligently provided? (ii) what is the appropriate apportionment of risk? and (iii) what losses would have been sustained if the correct information had been given? At the first stage, the purpose was to put the mother in a position to enable her to make an informed decision in respect of any child she conceived who was subsequently found to carry the haemophilia gene. At the second stage, the doctor was liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and consequent upon it no termination of the pregnancy. At the third stage, the loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism, which risk was not increased by the doctor’s advice.
A number of rules limit or define the damages which may be recovered where there is a breach of duty. This case illustrated (so the Court of Appeal found) the link that there must be between the scope of the duty and the damage sustained (which here limited damages to the issue of haemophilia) whereas the trial judge had, wrongly on the facts of the case, applied the “but for” causation test in awarding damages for the additional costs of an autistic child which costs would not have been incurred “but for” the breach of duty as a result of which the pregnancy had not been terminated.
In Chester v Afshar the misfortune which befell the claimant was the very misfortune that the defendant had a duty to warn against prior to surgery. The claimant recovered damages for that event arising. That was not, however, the case here. In Southern Australia there was discussion of the contrasting facts of the ‘mountaineer’s knee’. A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering (such as from an avalanche) but has nothing to do with his knee.
The facts of Khan v MNX are more akin to the ‘mountaineer’s knee’ than to the failure to warn of a risk of surgery which in fact occurs.
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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  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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