Should the NHS pay damages for incorrect advice about waiting times?

10 October 2018

At first blush the answer to this is of course not, but what if it was you who got seriously injured as a result?

The Supreme Court has recently had to consider this conundrum in the case of Darnley v Croydon Health Services NHS Trust. 

Mr Darnley went to A & E with a head injury.  He was told that the waiting time would be up to 5 hours, and after about 20 minutes, he went home.  Unfortunately, the receptionist had neglected to tell him that under the hospital triage system, he would have been examined by a nurse within 30 minutes, and when the nurse came to find him he had already gone.

At home, he collapsed and suffered a permanent brain injury which left him with very serious disabilities.

Mr Darnley sued the hospital, and won his claim.  The High Court found that it was negligent not to advise him about the 30 minute triage system.  The Court of Appeal reversed the decision, and in the leading judgement Lord Justice Jackson warned about the “floodgates” being opened to lots of bad legal claims. 

By way of explanation for non-lawyers, the floodgates metaphor is often used as a kind of policy argument to say that certain types of legal claims should simply not be allowed. 

For most of us, once we get seen by a doctor or nurse, we are usually looked after very well, and we are full of admiration for the NHS managers and clinicians who somehow manage to keep it all going in the face of very obvious understaffing.

But, getting to the point where we actually see a clinician can sometimes be a real challenge, and we know that in A & E we will face a triage process that might involve a superficial assessment, and a wait for several hours before being seen by a clinician.

We can’t choose when we are going to become ill, and if we are seriously ill, the sooner we get treatment the better.  For that reason, the administration of healthcare is as important as the quality of the clinical care.

Modern clinical negligence law is about 60 years old.  It looks at the duty of care that is owed to patients, asks whether it has been supplied to a reasonably competent standard, and  what injury has been caused by any breach of duty.  It then asks what are the reasonably foreseeable loses arising.  

Under our common law system, the function of the Supreme Court is to remind us what the law actually says, and to consider whether the court of appeal got it right.  This is particularly important when it has to be applied to circumstances that may not have existed when the law was framed.
Supreme court judgements can be difficult to understand, but in simple terms Mr Darnley won his case and it has now been referred back to the High Court for the assessment of damages.

In the coming months and years, the legal community will digest the judgment, apply it to other cases, and decide whether it is good or bad law.

For present purposes, my view is as follows:

I think that the Supreme Court was right to find in Mr Darnley’s favour and I don’t agree with Lord Justice Jackson’s warning that the floodgates will be opened.  The Supreme Court has done it’s job, and simply reminded us of how the law of medical negligence should be applied.  It has not invented new law, and it won’t make it easier for people to bring bad claims.   It is worth remembering that a medical negligence claim will only succeed if it is supported by at least two independent doctors.

Neither will it impose cumbersome new responsibilities on hospitals.  Had Mr Darnley been given a simple one page information sheet explaining the triage system, this tragedy could have been avoided.  

The debate about how we fund and resource the NHS is a huge one, and there are no easy answers.  For the most part the NHS is fantastic, but sometimes, without anybody intending it, it lets people down and they get hurt.  That’s why we have the law of negligence.  It enables us, as a society, to compensate people when they suffer due to the mistakes of others.  

And, as I suggested at the start of this blog, how would you feel if you were the unfortunate patient who was left with a permanent disability, and two independent doctors had confirmed that there was negligence?  Would you just accept the fact that your life would never be the same, or would you want the right to go to a court to seek compensation?

Terrence Donovan is the head of the Medical Negligence & Personal Injury team at Kingsley Napley LLP.  If you have been affected by any of the issues discussed in this blog, you can contact him at  Alternatively, you can contact us on: 020 7814 1200 or email us at .

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