Loo Peh Fern and Siew Ka Yan explain a case of a hospital's liability for misinformation by its non-medically qualified staff.
"Please take a seat, we will attend to you shortly."
The standard expression above is commonly heard upon registering one's attendance at a healthcare service provider. Oftentimes, there is no indication given to the patient as to how long he or she would have to wait before being attended to by a medical staff. This may be so even in the overwhelmed Accident and Emergency ("A&E") departments of hospitals. Waiting times may range from minutes to hours.
The issue of waiting time was at the heart of the UK Supreme Court case of Darnley v Croydon Health Services NHS Trust  UKSC 50 ("Darnley").
The claimant, Michael Mark Junior Darnley ("Michael") was assaulted and struck on the back of his head by an unknown assailant before presenting himself at the A&E department of the defendant hospital ("Hospital") with a suspected head injury. Upon providing his personal details to the receptionist at the Hospital and informing her that he required urgent attention as he was feeling very unwell, the receptionist told Michael that he would have to wait for about four to five hours before a medical staff would see him.
The receptionist did not inform Michael that he would be seen by a triage nurse within 30 minutes.
After waiting for about 19 minutes, Michael returned home as he was feeling worse and unwilling to wait any longer. He did not inform the hospital staff that he was leaving but both the receptionists on duty noticed that he had left. Michael's condition deteriorated an hour later when he was at home and his family called an ambulance. He was taken back to the Hospital where a scan identified a large extradural haematoma (i.e. internal bleeding between the skull and the outer membrane of the brain).
Surgery was conducted to remove the haematoma but unfortunately Michael was left with permanent brain damage in the form of a severe and disabling left hemiplegia (i.e. paralysis on one side of the body). He sued the Hospital for negligence, claiming that the receptionist had been in breach of duty by failing to provide accurate information about waiting times.
FINDINGS OF THE HIGH COURT
The agreed expert evidence was that had Michael's deterioration occurred at the Hospital, he would have been treated promptly and made a near full recovery. Nonetheless, the High Court held in favour of the Hospital based on the following findings and conclusions:
(i) Michael did not fall into the category of patients who should have been fast tracked under the priority triage system. His presentation was not sufficiently serious so as to alert the reception staff to call for the immediate attention of a nurse;
(ii) If Michael had been informed that he would be seen by a triage nurse within 30 minutes, he would have stayed and a medical staff would have attended to him. The subsequent deterioration of his condition would have occurred within the Hospital. Michael's decision to leave the Hospital was, in part, made based on the inaccurate and incomplete information provided by the receptionist, and was foreseeable;
(iii) However, receptionists in A&E departments are not under a duty to guard patients against harm caused by the failure of patients to wait to be attended to, even if such harm could be prevented by the provision of full and accurate information about waiting times. It would not be fair, just and reasonable to impose liability on the Hospital for harm arising as a result of the failure of the reception staff to inform the patient of the likely waiting time to be seen by a triage nurse; and
(iv) Michael's decision to leave the Hospital broke the chain of causation between the inaccurate and incomplete information provided by the receptionist and the ultimate harm suffered as the decision to leave was ultimately his.
Dissatisfied with the decision of the High Court, Michael appealed to the Court of Appeal.
FINDINGS OF THE COURT OF APPEAL
The appeal was dismissed by a majority on the ground that neither the receptionist nor the Hospital owed a duty to advise about waiting times.
Jackson LJ considered that the providing of inaccurate and incomplete information by the receptionist was not an actionable misstatement. When the receptionist informed Michael that he would have to wait for up to four or five hours, she was not assuming responsibility for the catastrophic consequence which he might suffer if he walked out of the Hospital. It was not fair, just or reasonable to impose on the receptionist or the Hospital, a duty not to provide inaccurate information about waiting times – to do so would add a new layer of responsibility to clerical staff and a new head of liability for the Hospital.
Further, even if the receptionist was in breach of duty by providing inaccurate information, the scope of that duty cannot extend to liability for the consequences of a patient who walked out without informing that he was leaving. The patient must accept responsibility for his own actions.
Sales LJ concurred and added that the fair, just and reasonable view was that information as to likely waiting times was provided as a matter of courtesy and out of a general spirit of trying to be helpful towards the public.
McCombe LJ in his dissenting judgment opined that the Hospital was in breach of its duty of care. The misinformation was provided negligently and created a false impression. It is the duty of a hospital not to provide misinformation to its patients, whether it is provided by the reception staff or medical staff. Hence, the division of a hospital's function in terms of administrative staff and medical staff was unhelpful and irrelevant. The Hospital's breach was causative of Michael's injury.
THE DECISION OF THE SUPREME COURT
On further appeal, the Supreme Court allowed the appeal and decided in favour of Michael. The approach of the majority at the Court of Appeal was scrutinised.
Duty of care
First, the Supreme Court considered that the common law has abandoned the search for a general principle capable of providing a "one size fits all" practical test applicable in every situation to determine whether a duty of care is owed and if so, what its scope is. According to Lord Lloyd-Jones who delivered the unanimous decision of the Court:
"In the absence of such a universal touchstone, it [the common law] has taken as a starting point established categories of specific situations where a duty of care is recognised and it has been willing to move beyond those situations on an incremental basis, accepting or rejecting a duty of care in novel situations by analogy with established categories."
Foreseeability of damage, proximity and fairness need not be re-evaluated on every occasion where an established category of duty is applied. In cases where the existence of a duty of care had previously been established, the consideration of justice and reasonableness would have already been taken into account. It is only when the court is asked to go beyond the established categories of duty of care that it is necessary to consider whether imposition of such duty is fair, just and reasonable.
According to his Lordship, the present case was not concerned with the imposition of a duty of care in a novel situation. It fell squarely within an established duty of care – it has been long established that hospitals owe a duty to take reasonable care not to cause physical injury to its patients. As soon as Michael presented himself at the Hospital seeking medical attention and provided the information requested by the receptionist, he had entered into a patient-health care provider relationship with the Hospital. The scope of duty to take reasonable care not to act in a manner such as to foreseeably cause injury to a patient clearly extends to taking reasonable care not to provide misleading information which may foreseeably cause injury.
The duty of care owed by the hospital should not depend on whether the misinformation was provided by a person who was or was not medically qualified, though the distinction may be relevant in deciding whether there has been a negligent breach of duty depending on the degree of skill reasonably expected of a person charged with such responsibility. Here, the Hospital had charged its non-medically qualified receptionists with the role of being the first point of contact with persons seeking medical assistance and thus with the responsibility of providing accurate information as to its availability.
Breach of duty
The Supreme Court took cognisance of the stressful environment in A&E departments and the fluctuating demands for attention and priorities. While it was not required for receptionists to provide accurate information to each arriving patient as to the precise time he or she would be seen by a medical staff, it is not unreasonable to expect receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance.
The Court was satisfied that the receptionists on duty at the material time were aware of the standard procedure that anyone complaining of a head injury would be seen by a triage nurse and the usual practice was that such a patient would be informed that he or she would be seen by triage nurse within 30 minutes of arrival or as soon as possible. Hence, it is not unreasonable, in the opinion of the Court, to require that patients in Michael's position should be provided on arrival, whether orally or by a receptionist, by leaflet or notice, with accurate information that they would normally be seen by a triage nurse within 30 minutes.
Based on the findings of the trial judge, the Supreme Court was of the view that the conclusions of the High Court and majority of the Court of Appeal that Michael's unannounced departure from the A&E department broke the chain of causation could not be sustained for three reasons. First, the trial judge found that Michael would not have left the Hospital if he had been told that he would be attended to in 30 minutes. Secondly, Michael's decision to leave was made, in part at least, based on the misinformation provided by the receptionist which was inaccurate or incomplete. Thirdly, it was reasonably foreseeable that a person who believes that it may be four or five hours before he is seen by a doctor may decide to leave, whereas he would have stayed if he believed he would be seen much sooner by a triage nurse.
As noted by the Supreme Court, Darnley is not a case about whether a duty of care exists, but whether the Hospital had breached its duty by providing inaccurate information through its receptionist. The apex court clarified that the duty in the present case not to provide misinformation fits within the well-established category of duty owed by health care providers to its patients, i.e. to take reasonable care not to cause physical injury to its patients.
In this, we can see that the common law and the court's approach is not to determine the existence of duties of care based on precise factual circumstances framed as novel situations, but to look widely at the general duty owed in an established category and, if possible, place the precise factual circumstances under its umbrella. A hospital's general duty is to take reasonable care not to cause injury to its patients, and the duty to not provide inaccurate and incomplete information is just one of many specific duties parked under its umbrella. As seen in Darnley, the provision of negligent misinformation by a non-medical staff as to waiting times may cause serious and irreversible injury to a patient that is not dissimilar to a medical staff giving negligent advice as to treatment or diagnosis to a patient.
Darnley illustrates that in appropriate circumstances, such as those in the instant case, the duty to exercise reasonable care imposed not only on medically trained staff, but also on non-medically trained staff, of a hospital.
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