Is a hospital liable for the negligence of its non-medical staff?

You rush an injured friend to the hospital. The A&E staff say, “Please wait, we’re busy”. Your friend succumbs to his injuries. If you sued the hospital, will you win?

In May 2010, Michael Darnley was 26 years of age.

On the afternoon of 17th of May, he was assaulted. He was struck on the head.  The whys and wherefores of this incident are not important – what it did to Michael, is.

Shortly after, Michael called his friend Robert Tubman.

He complained of a headache.

Michael said it was getting worse.

Alarmed, Robert took Michael to the A&E Department at Mayday Hospital, Croydon.1Now called ‘Croydon University Hospital’.

The hospital was run by the National Health Service Trust, UK.

They arrived at the hospital at 8:26 p.m.

The receptionist says,“Go sit down and wait 4 hours”

Michael spoke to an A&E receptionist.

Michael told her someone had hit him on the head; that he was feeling “very unwell” and his “head was hurting”.

The receptionist was not helpful. She was more concerned to know how the injury occurred; and if it involved the police.

A little exasperated, Robert intervened.

He told the receptionist that Michael was “really unwell”, and that Michael “needed urgent attention”.

The receptionist told Michael to “go sit down”.

She said Michael would have “to wait up to 4 to 5 hours before somebody looks at you”.

Michael said he could not wait that long and said he was “about to collapse”.

The receptionist told Michael that if he collapsed, he would be treated “as an emergency”.

So Michael and Robert waited.

After 19 minutes, Michael could not bear the pain.

He wished to go home “to take some paracetamol”.

Michael and Robert left at 8:45 p.m.

They did not tell the receptionist anything.

Shortly afterwards the receptionist went looking for Michael.

She left a note for the next shift “to look out for Michael” because “a patient with a head injury had left the A&E.”


Robert drove Michael to his mother’s house. That took 13 minutes. Michael took some paracetamol and went to bed.

At 9:30 p.m., he was distressed.

At 9:44 p.m., an ambulance was called. It arrived at 10.05 p.m.

He was taken back to the same A&E department.

During his journey, Michael’s blood pressure shot up.

Ambulance staff identified Michael’s brain injury as ‘mild’.2“GCS 9/15”

He then “projectile vomited”: his stomach contents were forcefully propelled several feet.

Whenever a person vomits after a head injury, it is not good.

Michael arrived at the hospital at 10:38 p.m.

A CT scan identified a large collection of blood in the space between his scalp and his skull (‘extradural haematoma’).

At 12:55 a.m., the hospital transferred him to another hospital:  St George’s Hospital in Tooting, so that neurosurgeons could attend to him.

There, he underwent an operation for the release and evacuation of the haematoma.

Through openings made in the skull, the collection of blood was removed by a combination of suction and irrigation methods.

Because of the injury and the delayed treatment, Michael suffered permanent brain damage.

It left him with very disabling paralysis of the left side of his body (‘left hemiplegia’).

Michael sued the hospital.

The Hospital protests

During trial, the hospital complained that the court could not blame it for Michael walking out on his own accord.

Why should the hospital be blamed for that?

The way Michael had appeared at the reception, said the hospital, could not have alerted any medical staff of his condition, let alone the receptionist; and the receptionist’s mistake did not make the hospital liable.

The hospital said it would be wrong to hold the hospital liable just because it had delayed seeing Michael; that a mere delay of 19 minutes did not mean the hospital had breached any legal duty.

Thus any inadequacies in the information given him, said the hospital, could not be blamed on it.

What did the evidence show?

Medical experts agreed that under medical guidelines, patients such as Michael had to be seen within 15 minutes.

Even if the A&E had been busy, the triage nurse should have seen Michael within 30 minutes.

He was not.

There was also evidence that if the receptionist had told Michael he “would be seen within 30 minutes”, Michael would have stayed.

He would have undergone surgery much earlier.

And he would have made a near full recovery.

Was the hospital at fault?

At the High Court and Court of Appeal

Agreeing with the hospital’s lawyers, the trial court dismissed Michael’s case.

The Court of Appeal agreed with the trial court.3Darnley v. Croydon Health Services NHS Trust [2017] EWCA Civ 151

However, at the Court of Appeal there was a lone dissenting voice.  It was Lord Justice McCombe.

McCombe said that the information the receptionist had given Michael had been  wrong. It was this ‘misinformation’ that had caused all the trouble.4Darnley v. Croydon Health Services NHS Trust [2017] EWCA Civ 151, at p.18, paragraphs 68 & 69

He said patients had to be given correct information about waiting times.

They needed to know that in a true emergency the hospital could act quickly; that an ‘initial medical assessment’ would occur sooner than the sort of “average national A&E waiting times until treatment”.

(Does this remind you of anything?)

The ‘duty not to misinform’

McCombe wrote of two concepts that would change the history of medical law.

First, he said a hospital “has a duty not to misinform patients, and the duty is not removed by interposing non-medical reception staff” as “a first point of contact”.

He said, “I do not consider that the responsibility of the hospital can be shifted because the misinformation was provided by non-medical staff”.5Darnley v. Croydon Health Services NHS Trust [2017] EWCA Civ 151 paragraph 71

Second, he said the “functions of a hospital cannot be divided-up into those of receptionists and medical staff.”6Ibid.,  paragraph 71

The Case of the Three Night Watchmen

McCombe contrasted Michael’s case with the ‘case of the Three Night Watchmen’.7Barnett v. Chelsea and Kensington Hospital Management Committee [1968] 1 All ER 1068

Barnett and two colleagues were night watchmen.

An intruder had struck one of them on the head with an iron bar.

They rushed to the hospital at about 4:00 a.m., seeking treatment for the injured man.

Afterwards, they returned to work. Three of them had a cup of tea.

They suddenly felt unwell.

They were vomiting for three hours.

They rushed to the casualty department. They related all this to the duty nurse.

She did not wait. She telephoned the doctor on duty at once.

She reported the problem.

The doctor, who was at home, made light of it.

He told the nurse to tell the watchmen to go home, and call their own doctors.

So the three men went home.

Five hours later, Barnett died.

The cause of his death was arsenic poisoning.

Barnett’s widow sued the hospital.

Did the nurse, or doctor or the hospital owe a duty to Barnett?  The court said, ‘Yes’.8Neild J

The nurse and the medical officer were required to exercise a level of skill and care expected from persons with their medical knowledge.9Ibid, at p.1073

If they fell short of that duty and injured someone, they were liable in law (we shall call it ‘the Barnett principle’).10Ibid

Now the Barnett case concerned the behaviour of a doctor, and a nurse.

Does the Barnett principle apply to non-doctors?

McCombe said the Barnett principle applied to any person who professes to have specialised knowledge.

It applied to a paediatrician as it does to a plumber, an engineer, an electrician, an architect or indeed, a lawyer.

The law demands that such persons must, in the course of their work, display a level of competence associated with their ‘profession, trade or calling’.11 An old law book pointed to such a duty. Winfield on Torts,7 Ed., 1963, page 183

In Barnett’s case, there was evidence that even if the hospital had immediately treated him, an antidote could not have saved him.

His death had been almost certain.

The hospital could not have prevented his death.

Although the hospital had breached its duty, it had not ‘caused’ Barnett’s death.

So the hospital escaped by the skin of its teeth.

Cannot demand too high a skill

But the court cautioned that “the rule must be applied with some care” to see that the law does not demand “too high a degree of skill”.

Take a passer-by who gives first aid to an accident victim.

He is not expected to have the skill of a surgeon.

So also, the Supreme Court in Darnley accepted that an A&E receptionist could not be expected to give the same level of medical advice as a surgeon.12Ibid. p. 36

An Australian law teacher picks up McCombe’s Dissent

In his dissent, McCombe ruled that the hospital, in giving erroneous information through its receptionist, had been negligent.

After the Court of Appeal had handed its decision, McCombe’s dissenting opinion, being in the minority, was forgotten.

But an Australian law teacher, Professor James Goudkamp, picked it up. He thought there was something in it.

He wrote a case note on it.13[2017] CLJ 481

He had studied law at the University of Wollongong, New South Wales.

He now teaches law at Keble College, Oxford.

Lord Lloyd-Jones, who wrote the judgment for the Supreme Court, said Goudkamp’s case note had  “greatly assisted [him]”.14Darnley v. Croydon NHS Trust [2018] UKSC 50 [2019] 1 All ER 27, at p. 36

The Supreme Court agreed with McCombe.

A patient has a right to be told accurate information

The court analysed the problem in this way:

A hospital was “a healthcare provider”.

A body that ran a casualty department had a duty to take reasonable care not to cause physical injury to any patient.

Once Michael had been “booked in”, he had been “accepted into the [hospital] system”.

He had “entered into a relationship” with the hospital.

That he had walked out on his own accord did not excuse the hospital.

Every patient has a legitimate expectation, said the Supreme Court, that he will receive, from hospital staff ‘a degree of skill appropriate to the task which the staff undertakes’.15Ibid, p.36, paragraph 25

While one could not expect a receptionist to give the same kind of advice as would a surgeon, they expected her to respond accurately to requests for information.

It was well within her area of responsibility.

She had no business giving inaccurate information.

That was contrary to the legitimate expectation of any patient.16Ibid, p.36, paragraph 26

The Supreme Court was not impressed with the hospital’s arguments that an A&E department was not always a “haven of tranquillity”; or that an employee should not be faulted for not giving “minute-perfect or hour-perfect information on how long the wait might be”.

‘False Targets’

The Supreme Court felt these arguments were aimed at “false targets”.  The question [that had been missed] was whether the hospital had the duty to take reasonable care when providing, by its receptionist, information to patients on how long they had to wait.

Here, such care had not been taken.

The receptionist had been negligent.

So the hospital was liable.17Ibid, p. 33

In imposing such a duty, the Supreme Court said that there was no difference between the duty owed by the hospital or its non-medical staff: (we shall call this the ‘Darnley principle’).

What happens if the ambulance arrives too late?

Suppose we apply the Darnley principle to another situation: a person has called an ambulance.

The call handler gives misleading assurance that the ambulance would arrive shortly.

It does not.

The patient suffers brain damage.

What happens in such a case?

In a similar case, the London Ambulance Service was held liable for two reasons: the delay in the ambulance, and the call-handler’s misinformation.18Kent v. Griffiths [2000] 2 All ER 474

If such an error is committed by an ambulance from a Malaysian Government hospital, the result can be no different.

The hospital would be liable.

Massive significance

The decision in Darnley was published on October 7th, 2018.

It has extended the duties of a hospital even to its non-medical staff.

This decision has a massive significance.

It will apply to a Government hospital, a private hospital, and even private clinics.

Private practitioners, and owners of private clinics – take the hint.  Train your staff what to say – or be ready to be sued.

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