Is a solicitor under a duty to warn their client of risks falling outside their retainer?
The recent case of Darnley v Croydon Health Services NHS Trust  EWCA Civ 15 before the Court of Appeal has shone a spotlight onto waiting times in cases of head injury and the role of the civilian A&E receptionist in the context of medical negligence claims.
The Claimant was the victim of an assault, suffering a violent blow to the head. He was driven to the A&E Department of Mayday Hospital and told by the receptionist to wait to be seen – 4 to 5 hours was the given waiting time. In fact, hospital practice was that head injury patients should be assessed within 30 minutes. After a short time (19 minutes) the Claimant, who was in considerable pain, decided to go home and take paracetamol. Tragically, the Claimant’s condition deteriorated once home. After being taken back to hospital by ambulance, a CT scan revealed the presence of an extradural haematoma which resulted in permanent damage and long term disabilities.
The essence of the claim was two-fold:
The answer to this can vary. National Institute for Health and Clinical Excellence Guidance states that all patients presenting with a head injury should be assessed within a maximum of 15 minutes. However, the Court of Appeal held that at busy periods a 30 minute maximum wait time is appropriate. Both the expert for the Claimant and Defendant agreed that the 15 minute standard may not always be achievable. In this case the Hospital disclosed their A&E records for the evening in question. The Court and experts, having regard to these records, found that the department was sufficiently busy to mean that 30 minutes was an appropriate waiting time for triage assessment.
It was found in the original trial that it was normal practice for the receptionist to tell patients that a triage nurse would see them within 30 minutes – however, there was no breach of duty by not following this practice. The Court of Appeal found that neither the receptionist nor the Hospital owed a duty to advise the Claimant about waiting times. The function of a civilian receptionist is to record details of new arrivals, tell them where to sit and pass on the relevant details to patients. It is not their function or their duty to give any wider advice or information to patients. It was held not to be “fair, just and reasonable” to impose such a duty.
The trial judge was concerned that imposing a duty on reception staff not to provide inaccurate waiting times would lead to a significant risk that staff would be simply instructed to refuse to provide estimated waiting times – an unhelpful outcome for patients. The Court of Appeal heeded these concerns and suggested that litigation about who said what to whom in A&E waiting rooms could become a fertile area for claimants.
It was admitted that had the Claimant been present when called for triage assessment (the triage nurse came looking for the Claimant shortly after he left), his treatment would have been prioritised and he would have made a full recovery. Further, the trial judge considered that it is reasonably foreseeable that a person may decide to leave thinking the waiting time was 4 to 5 hours, when they would have stayed had they believed that they would have seen a triage nurse much sooner (based in part on medical literature, 3-8% of patients leave without being seen).
However, the Court of Appeal considered that even if a receptionist did owe a duty of care to patients not to provide an inaccurate wait time, the Claimant’s injuries would not have breached such a duty or even if it did, the injuries were not caused by such a breach. The scope of such a duty cannot extend to the consequences of a patient walking out without informing staff that he was leaving. Lord Justice Jackson noted that there comes a point when people must accept responsibility for their own actions.
Although this case establishes that there is no duty to provide an accurate estimated waiting time we should still be mindful that this time period can often be critical - something which sadly, this case very much illustrates. As we have previously written, it represents a narrowing window of opportunity for treating a time critical emergency. Although the Court of Appeal’s recognition of A&E’s sometimes limited capacity is understandable, great care is required when extending assessment timeframes.
This blog has been written by Christopher James, Trainee Solicitor, Clinical Negligence and Personal Injury
If you would like to find out more information about adult brain injury claims please visit our dedicated page here or contact one of our specialist lawyers on 020 7814 1200 or email our Clinical Negligence team.
 Clinical Guidance 56 “Head Injury. Triage, Assessment, Investigation and Early Management of Head Injury in Infants, Children and Adult”. Published by the National Institute for Health and Clinical Excellence - September 2007
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