Tuesday, 25 July 2017

Mayday!Mayday! Leaving A&E .

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The Court of Appeal's decision in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 has met with a mixed response from clinical negligence practitioners. This was the case of the head injured claimant who attended A&E only to be told wrongly by a receptionist that he would have to wait a number of hours to be seen, when in fact he would have been seen within 30 minutes. He was with a friend and decided to leave to go home after 19 minutes, rather than wait for hours. He later deteriorated and suffered permanent neurological injuries. The Court of Appeal held, by majority, that it had not been within the scope of the duty of care of the receptionist to advise as to waiting times but she had done so as a matter of courtesy. In any event there was no causal connection between any alleged breach and the injury because the claimant had made a free choice to leave the hospital.

At the AvMA conference in Leeds this summer, one speaker tore at this judgment and supported the minority decision of McCombe J. Many of the claimant lawyers agreed! In particular it was regarded as unreasonable to have in effect held the claimant accountable for leaving the hospital when one of the key reasons he left was due to the misinformation given to him by the defendant Trust's employee (or agent).
Mayday Hospital is now known as Croydon University Hospital


Darnley was raised as a defence in another claim against the same hospital's A&E department in the recent High Court case of McCauley v Karim and Croydon Health Services NHS Trust [2017] EWHC 1795, a decision of Mr Justice Foskett. The Claimant suffered multiple amputations of toes, fingers and his left leg after being rushed to hospital with septic shock. Earlier he had attended the Defendant's A&E department. The triage nurse had requested blood tests but the Judge found that they would not have included CRP which would have been important in terms of subsequent management. However the claimant was seen by a doctor who ordered bloods including CRP and his direction was not actioned. On the court's findings they would have led to further investigations and treatment that would have prevented the claimant's severe injuries.

The claimant had attended the A&E department at 1030 hours and he left without any blood tests having been performed, at 1630 hours. The court's finding was that but for a negligent system, rather than negligence attributable to any one, identifiable individual, blood tests would have been performed by 1530 hours and that the claimant would have stayed for a further medical consultation to discuss the results and any further investigations.

No contact was made with the claimant after he had left the hospital. Either someone had tried to find him to take blood but after he had left, in which case they did not then take steps to contact him, or no-one ever actioned the request for blood tests and therefore no-one noticed he had gone.

In relation to the former scenario the Judge noted the defendant's submissions in response to the claimant's case that steps should have been taken to call the claimant back:
    "If it was mandatory to summon C back to hospital (a patient who had capacity and absconded whilst waiting for blood tests with a reasonable differential diagnosis of ? evolving ischiorectal abscess/?prostatitis) then this obligation would seem to apply to all adult patients who leave without being seen who need blood tests or might have an infection. There is nothing in the material provided by the experts which could justify the imposition of so wide an obligation on a busy A&E department.
    In reality this is just another mechanism by which C has sought to fix D2 with responsibility (i.e. to blame D2) for the consequences of his own decision to leave. The submissions on this topic above apply with equal force: C must take responsibility for his own action in leaving."

    Mr Justice Foskett was not attracted to this submission:
  1. This, as it seems to me, is endeavouring to extend the effect of the decision in Darnley beyond what was intended. It does seem to me that the situation in this case is not one that can be swept aside by the assertion that this was all the responsibility of C and that telephoning him would have the effect of imposing an excessive obligation on a busy A & E Department. I accept that his decision to leave the hospital might mean that C cannot rely upon what was said by the receptionist as an actionable misstatement (following Darnley), but this situation is different: it involves the "system" failing (i) to identify the fact that an important test had not been done on C and (ii) to alert him to or to reinforce the desirability of making himself available for it to be carried out. At the risk of repetition, it should be emphasised that he was an overweight diabetic who it was thought might have an ischiorectal abscess. Even if he was told by Dr Uhercik that a blood test was required (which is likely), there is no evidence (because neither C nor Dr Uhercik remember the examination and any conversation) that C appreciated fully the importance of the test. Since he had been waiting since 10.30 in the morning, possibly anticipating a blood test in the light of the triage nurse's request, he may well not have seen this further request for a blood test as any advance in trying to find out what was wrong with him. But whether something said by the receptionist encouraged him to think that there was no point in staying any longer (see paragraph 57), in my judgment, there was a duty on the hospital to check that there was a good reason for him not being there to provide the specimen and then to warn him of the risk of not having done so. Only then could it truly be said that he had made an informed decision about ceasing to place reliance on the hospital that day for finding out what was wrong with him. If that had happened, the decision in Darnley may have prevented him from pursuing a claim.

  2. As I have said, I am unable to accept that imposing a duty to make contact in a case such as this places an unreasonable burden on a hospital. That people do leave A & E Departments before they are treated is a well-known phenomenon: see, e.g. the review article in the Emergency Medicine Journal, 2011, entitled 'Patients who leave emergency departments without being seen: literature review and English Data analysis' and 'The patient who absconds' 2013, guidance given by The College of Emergency Medicine. Mr Richmond has said that those who come within the cohort of cases to which C would belong for this purpose represent a very small proportion of those who leave an A & E Department before treatment: Mr Richmond is (or at least had been for a number of years) in charge of a busy A & E Department in Poole and had extensive experience in A & E Departments in Wales prior to that. I do not suggest that Dr Campbell-Hewson does not have relevant and appropriate experience, but it is less than that of Mr Richmond, and more importantly his view does not seem to me to address the question of what to do about someone who, like C, has been in the system for the best part of a day, in respect of whom an important diagnostic test has been commissioned and who, for some reason, has left before the test is carried out when there is no record in the notes that he had "gone missing" at the material time.

  3. All this arises, of course, only if it is established that the hospital realised that C was not present when the sample was to be requested. There is no evidence that this was the case and, as I have said, it is a legitimate inference that no step was ever taken to obtain a sample.

Clearly there are factual differences between McCauley and Darnley. The claimant had been seen clinicians, he had been in the system at the department for a number of hours. There had been ample opportunity to carry out the tests and to give him advice. In Darnley the claimant was present only for 19 minutes, had not seen a clinician and so had not relied on any advice from a clinician. Nevertheless it is not only the coincidence of the location that raises interest. Rather like McCombe LJ, Foskett J pointed to the system in place at the department. The defendant can be liable if the system is deficient. The judgment also demonstrates that a patient's decision to leave a hospital before the conclusion of the (intended) investigation or treatment of him will not necessarily defeat or reduce his claim.