A number of the claims that our medical negligence team handles involve the management of patients in A&E/emergency departments.

Although there is a perception that such claims usually relate to delays, the majority of claims that we deal with in fact involve missed diagnosis - typically either the failure to consider a less likely but more serious cause of symptoms and/or not taking proper heed of the information provided. A significant proportion of these claims concern missed diagnosis in children.

One recurring issue is the fact that a patient was initially seen by a junior doctor, and they and their families can feel aggrieved, believing that a more senior doctor would have identified the problem. In some cases the difficulty lies in a failure to escalate for senior review but, broadly speaking, the standards required in emergency care assessment are the same, regardless of the level of doctor seeing the patient.

A useful case confirming this principle is FB v Princess Alexandra Hospital NHS Trust.

This was a Court of Appeal decision in 2017 that clarified how the law assesses the standard of care provided by junior doctors in A&E.

What was the FB case about?

FB was a baby who became unwell in late September 2003. Over several days, her mother sought help from multiple healthcare providers. Eventually FB was taken to A&E by ambulance after worsening symptoms, including lethargy and eye rolling, were noted by her parents and reported to an out of hours service. Following her arrival at A&E, she was seen by a senior house officer (SHO) at around 5:20am.

Things did not go as they should with this assessment. Notes from the paramedics were not seen by the SHO, and the SHO failed to take a full history from the parents. In particular, the SHO did not establish that FB had arrived by ambulance because of her condition or the history of eye rolling (which can be indicative of a neurological issue in young children).

FB went home but her condition deteriorated further over the course of the day and she was brought back to A&E 12 hours later. This time she was referred immediately to paediatrics, given antibiotics, and transferred to Great Ormond Street Hospital. Belatedly she was diagnosed with pneumococcal meningitis. Although at that stage she was given all the correct treatment, the unchecked progression of the meningitis had already caused brain damage - leaving FB with lasting disabilities, including profound deafness.

FB (through her mother) brought a claim alleging that the SHO was negligent in failing to take an adequate history and/or perform a sufficient examination. It was alleged that had the SHO carried out a proper assessment, they would have realised that there were signs of concern that mandated action (including referral to the paediatric team) and the meningococcal infection would have been identified and treated earlier, improving FB’s outcome.

Often in medical negligence claims the dispute centres more on the impact of any failings than the failings themselves. However, in this case both sides agreed that if FB had been referred to the paediatric team during her first A&E visit, she would have received antibiotics in time to prevent the brain damage. The dispute was about whether the SHO had provided an appropriate standard of care, or whether the assessment was negligent.

The dispute continued to trial, where FB lost. The trial judge found that there was no negligence/breach of duty and the care provided was acceptable given that it was a junior doctor who assessed FB. Subsequently FB’s mother and her legal team appealed the findings. The matter remained in dispute and came before the Court of Appeal.

What were the findings of the Court of Appeal?

The Court of Appeal made the following points in its judgment:

  • the standard of care does not vary by seniority- the court rejected the idea that a less experienced doctor should be held to a lower standard than a senior one. All doctors must meet the standard of a competent doctor in their role, even if they are new to it. The standard of care applies to the role being undertaken and not the level of person undertaking the role (unless that person should not have been undertaking it in the first place due to lack of appropriate experience). The role of a doctor assessing a patient in A&E is to be alert to red‑flag symptoms and ensure appropriate escalation: the standards expected in this respect are the same regardless of the level of experience of the doctor;
  • history‑taking must be thorough - the court stressed that obtaining a proper history is a fundamental part of the role of an A&E doctor assessing a patient. The SHO had not taken an adequate history;
  • the trial judge had applied the wrong test - the Court of Appeal held that the trial judge had wrongly applied a lower expectation to the SHO because of their lack of experience. The standard required was that of a competent emergency doctor.

The court allowed the appeal, finding that the SHO’s failure to take an adequate history and conduct an adequate examination breached the duty of care.

What does this ruling mean for medical negligence cases involving junior doctors?

This case makes clear that the test to be applied in assessing the standard of care provided is always that of a competent clinician performing the relevant role. Providing it was appropriate for them to be performing that role (and some cases do centre on that issue), the standard of care applied is the same regardless of the level of experience. Being treated by a less experienced doctor does not reduce the standard of care a patient is entitled to.

The case also emphasised the importance, particularly in A&E care, of taking a full history and properly considering the information available, given the potential consequences of failing to escalate care for patients who are presenting with a condition where treatment is time critical.

We do from time to time encounter arguments about a doctor being less experienced and therefore not expected to meet the same standards as a more senior colleague. This case is a useful authority to demonstrate that such arguments generally lack merit.