The Supreme Court to hear a case which previously split the Court of Appeal as it was felt to have serious implications for Clinical Negligence law.
The case of Darnley v Croydon Health Services NHS Trust will be heard by the Justices after the case was dismissed by the majority of the Court of Appeal last year.
The claimant alleged that the receptionist in the accident and emergency department had acted negligently and believed that the receptionist or the NHS trust owed a tortious duty of care to provide accurate information about waiting times.
The claimant, Mr Darnley, was assaulted and hit over the head. His friend, Mr. Tubman drove him to the local hospital. The claimant arrived at A&E with a serious head injury resulting from the assault.
Mr Darnley’s stated that the receptionist has addressed him in an ‘off-hand’ way. He explained that his head was in pain, but according to his friend Mr. Tubman, the receptionist ‘did not have a helpful attitude at all’ and ‘seemed more concerned as to how the injury had occurred’ and ‘asked Michael if the police had been involved’.
The claimant was told that he should be expected to wait up to five hours before treatment however after waiting 19 minutes decided to go home as he felt faint and believed he was about to collapse.
However, the receptionist failed to mention the hospital’s policy of the triage system in urgency situations such as the claimants’ where a nurse aims to examine patient within 30 minutes of arrival.
Whilst at home the claimant’s condition deteriorated and even though he returned to the hospital, there was not enough time to prevent permanent injury. The claimant sustained partial hemiplegia and long-term disabilities.
Lord Justice Jackson indicated the importance of wider issues in the appeal, demonstrating that around every week around 450,000 visits are made to A&E departments across England.
In his judgement, Lord Justice Jackson stated that the judge in the first ruling had been entitled that the nurses’ failure to triage Darnley within 19 minutes was not a breach of duty. Additionally, neither the receptionist nor the NHS trust owed any duty to advise the claimant about waiting times.
Lord Justice Jackson saw the ability for a ‘floodgates’ argument consequently from this ruling declaring ‘litigation about who said what to whom in A&E waiting rooms could become a fertile area for claimants and their representatives’.
There was dissenting opinion between their Lordships as Lord Justice McCombe believes the NHS trust was in breach of its duty to the claimant and that that breach was the cause of claimant’s injury.
This had led to a controversial decision, however this was welcomed by the NHS Resolution, which said the ‘novel’ claim had to be avoided in the primary interests of the health service, and that ‘opening up receptionists to negligence claims of this kind would have had very serious consequences’.
The Supreme Court has allocated one day for hearing the appeal of this case, with arguments set to be heard tomorrow.
Nilma Shah, solicitor in the Personal Injury and Clinical Negligence department states:
“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.”
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 email@example.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.
As a Chambers & Partners 2017/18 recommended firm, Duncan Lewis Solicitors are adept in personal injury matters. We are the largest UK provider of Legal Aid and specialists in no win no fee claims, meaning our solicitors can advise on making a brain injury claim which protects your interests.
If you or someone you know requires expert advice on a brain injury claim, call Duncan Lewis on 0333 772 0409.