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Clinical Negligence Solicitors

A&E - How long do I have to wait? I’m going home. (18 April 2018)

Date: 18/04/2018
Duncan Lewis, Clinical Negligence Solicitors, A&E - How long do I have to wait? I’m going home.

A lesson learnt following the Court of Appeal decision of Darnley v Croydon Health Services NHS Trust [2017] - think twice before walking out of A&E after being told the waiting time to be seen by a doctor.

The Court of Appeal decision, which is now being taken to the Supreme Court, provided that A&E receptionists have no duty to inform patients of their waiting times, they perform solely a clerical function. Even if there was a duty on the receptionist and it was breached, that scope does not extend to the liability for a patient to leave without informing the staff they were going to leave.

History of the case

In this case Mr Darnley attended A&E after sustaining a head injury from an assault and was driven by his friend to the nearby A&E department. Upon arrival, a receptionist in the waiting area informed Mr Darnley that he would have to wait for 4-5 hours before being seen – this estimation was in fact incorrect.

The actual waiting time was only 30 minutes. However, Mr Darnley decided that 4-5 hours was too long to wait and he left after 19 minutes.

When Mr Darnley returned home he deteriorated and later returned in an ambulance.

As a result of the delay in treatment, Mr Darnley was found to have sustained an extradural haematoma and suffered partial paralysis with long term disabilities.

Mr Darnley brought a claim against the NHS Trust on 2 grounds. Firstly he said that the receptionist‘s failure to provide accurate information regarding the waiting times was negligent and secondly, the hospital were negligent on the basis that he ought to have been seen within 15 minutes.

It is important to note that in September 2007 The National Institute for Health and Care Excellence (NICE) issued guidelines entitled: 'Head Injury – Triage, Assessment, Investigation and Early Management of Head Injury in Infants, Children and Adults'. Para of the guidelines stipulate that patients presenting with a head injury should be assessed by a trained member of staff within 15 minutes of arrival.

The NHS Trust denied the breach of duty but accepted that had Mr Darnley been present when called to be seen by a doctor he would have avoided permanent injury.

Court of Appeal Judgment

It was held that the NHS did not breach their duty of care and there was no duty of care on the receptionist to give accurate waiting times.

The case also failed on causation as it was Mr Darnley’s own decision to leave the hospital without informing the staff.

Mr Darnley’s solicitors appealed the lower court’s decision in the Court of Appeal on the basis that he was told to wait 4-5 hours and normal practice would be to tell patients they would be seen within 30 minutes. If Mr Darnley was told 30 minutes he would have waited. It is reasonably foreseeable that he would have left if told 4-5 hours.

The Court of Appeal’s majority decision accepted there is no duty on the receptionist as she is solely performing her clerical function. However, Lord Justice dissented on the basis that it was not appropriate to draw a distinction between clinical and clerical functions.

This case is now being appealed to the Supreme Court.

This case presents an important lesson - those of you who attend A&E be warned that if you are told to wait 4-5 hours before you are actually seen by a doctor this may be incorrect and you are more than likely to been seen sooner rather than later. Hospitals are meant to see 95% of patients within 4 hours.

That being said, in March this year, it was reported that the NHS emergency departments in England recorded their lowest performance since records began in 2004, with only 88.4% of patients recorded to have been seen within 4 hours.

Author, Nilma Shah is a solicitor in the Personal Injury and Clinical Negligence department at Duncan Lewis with over 4 years post qualification experience. She is experienced in a mixed litigation cased load including fast track and multi-track claims and has dealt with a wide range of clinical negligence cases involving misdiagnosis, delay in diagnosis, surgical errors, and birth injury claims.

For expert advice call Nilma on 020 3114 1274 or email her at nilmap@duncanlewis.com.

Duncan Lewis Clinical Negligence Solicitors

Duncan Lewis’ Clinical Negligence team have extensive expertise in brain injury claims, resulting from medical negligence, including birth injuries, misdiagnosis, prescribing errors and surgical errors.

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If you or someone you know requires expert advice on a brain injury claim, call Duncan Lewis on 0333 772 0409.

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