Why are we waiting? Most of us have at some stage had to attend the Emergency Department (ED) at our local hospital and been somewhat disappointed at the long wait to see a doctor that that generally entails.
In 2009 COAG introduced guidelines for waiting times, known as the National Emergency Access Target, in an attempt to set realistic expectations and goals. The aim was for 80% of ED presentations to be seen within clinically recommended triage times. However, the 2013 Public Hospital Report Card (available at https://ama.com.au/ama-public-hospital-report-card-2013) found that last year only 66% of patients classified as urgent were seen within recommended timeframes.
And those of us who are Novocastrians are sorely disappointed at the reports in the Newcastle Herald recently that reveal that the John Hunter Hospital (JHH) ED is understaffed and underfunded, particularly when compared to Liverpool Hospital which treats similar numbers of patients. Its hardly surprising then that the National Health Performance Authority found the waiting times at the John Hunter Hospital to be above the national average for semi-urgent and non-urgent conditions (see http://www.myhospitals.gov.au/hospital/john-hunter-hospital/services/emergency-department/waiting-times).
The Herald reported on February 16 that staff are concerned the stressful conditions they are working under mean they do not always make the most appropriate decision. Further, the President of the AMA, Dr Steve Hambleton, stated “[w]e have very strong data right here from Australia looking at what happens when you delay people getting out of emergency. If there’s insufficient beds in the system, and we can’t get people out of emergency, it does cause harm, and we do see unnecessary deaths that we do want to protect against.”
When things go wrong in the ED and the patient suffers an injury as a result of lengthy delays or due to a poor decision by an overwhelmed healthcare professional, the question often arises as to what rights and remedies the patient may have.
Firstly, most patients want to know what went wrong and why. There are systems in place in hospitals for adverse events to be investigated, the cause of the problem identified and measures put in place to prevent a recurrence. The Australian Commission on Safety and Quality in Healthcare has developed an Open Disclosure Standard which sets out the essential elements of conveying to patients what occurred. More information on the standard is available at http://www.safetyandquality.gov.au/our-work/open-disclosure/. There is also a very good article discussing the importance of open disclosure further at https://theconversation.edu.au/open-disclosure-why-doctors-should-be-honest-about-errors-4070.
For some people, knowing what went wrong and why is all they require to put the incident behind them and move on. For others, particularly those who don’t feel they have been given all the information by the hospital or those who have suffered an injury that has left them with ongoing problems, the issue of compensation arises.
One case that may serve as an example of the type of things that can happen when ED departments are understaffed is Curtis v Queen Elizabeth Hospital  SADC 22. In that case the plaintiff successfully alleged that the doctor employed at the hospital failed to diagnose and treat her meningitis. The plaintiff was treated for migraine and discharged without a diagnosis of meningitis having been considered.
Another relevant case is that of Wang v Central Sydney Area Health Service  NSWSC 515. In that case the plaintiff left the hospital after seeing the triage nurse but before being seen by a doctor due to the lengthy wait to be seen. The case confirmed the duty of a hospital to assign persons presenting to the ED with appropriate priority, via a triage system. However, Justice Hidden opined that no duty to provide medical services would arise until a person was able to be accommodated in the treatment area. Hidden J also stated that hospital’s duty required them to furnish patients with appropriate advice if they indicate they intend to leave the hospital before they have seen a doctor.
In Sherry v Australian Conference Association (t/as Sydney Adventist Hospital)  NSWSC 75 Justice Simpson stated “in undertaking to provide hospital and medical care to . . . [the plaintiff], SAH was under an obligation to staff the ICU at appropriate levels”. In obiter, Simpson J went on to state “It is conceivable that a hospital may be so badly managed that a medical practitioner is under a duty not to facilitate its further operation, and that to do so would be to participate in its maladministration”.
Of course, one may also need to consider the Civil Liability Act NSW 2002 section 42 which states that the functions required to be exercised by a public authority are limited by the financial and other resources reasonably available to the authority.