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What is the test of breach of duty in pure diagnosis cases? - Paul Sankey, Enable Law

28/09/20. When it comes to treatment, the test of breach of duty is the Bolam test. A different test applies to providing information to patients since Montgomery v Lanarkshire Health Board[1]. What is the test for pure diagnosis?

The standard required by Bolam test is that of a responsible body of medical practitioners within a particular discipline. The fact that there is a responsible body who would have done things differently does not make treatment negligent. The courts will not sit in judgment between different schools of thought provided they are responsible or reasonable. That makes sense much of the time when it comes to treatment[2]. There may be different ways of treating a condition or performing an operation and the decision involves weighing risks and benefits – a matter of judgment. The Bolam test allows the possibility that different approaches can be reasonable.

But does it make sense when it comes to diagnosis? Consider for instance a radiologist interpreting an x-ray. The interpretation is either right or wrong. If it is wrong, the mistake is either reasonable (there are questions of judgment involved) or not. There is no weighing of risks and benefits. The obvious way to frame the question of negligence is whether the radiologist had exercised reasonable care and skill or not. Assuming diversity of practice and applying the concept of a reasonable body makes no sense.

Perhaps surprisingly there have been few reported cases on what one might call pure diagnosis cases. The first was Penny v East Kent Health Authority[3]. Screeners examined cervical smears to determine whether they showed abnormalities. If so, they were passed to specialists. Because the screeners missed abnormalities, a number of women went on to develop cervical cancer and brought claims for negligence by the screeners. The trial judge thought the Bolam test ill-fitting to these facts, wanted to reject it and preferred the evidence of the Claimant's expert over the Defendant's. However, in case he was wrong to reject Bolam, he used the lens of Bolitho as an alternative way to find for the Claimants. Under Bolitho, for a practice to be responsible or reasonable, it had to be capable of logical analysis. He thought the view of the Defendant's expert was not.

In the Court of Appeal, Lord Woolf missed an opportunity to reject the Bolam test and replace it with one of 'reasonable care and skill'. He upheld the trial judge's decision but on the basis that the Defendant's expert evidence was illogical and failed the Bolitho test.

The second case was Muller v Kings College Hospital NHS Foundation Trust[4]. A pathologist has misreported an unusual form of melanoma as benign, resulting in a delay in diagnosis. The trial judge thought the Bolam test illogical. He summed up the shortcomings of Bolam here: 'In a case involving advice, treatment or both, opposed expert opinions may in a sense both be "right", in that each represents a respectable body of professional opinion. The same is not true of a pure diagnosis case…where there is no weighing of risks and benefits, only misreporting which may or may not be negligent. The experts expressing opposing views on that issue cannot be both be right'. However, he was constrained to follow the Court of Appeal decision in Penny, but again used the lens of Bolitho to get around the illogicality of Bolam. He found that the views of the Defendant's expert – that the misinterpretation was reasonable – did not stand up to logical scrutiny.

The third case was Brady v Southend Hospital NHS Trust[5]. The facts are quite complex but in short one of the questions was whether CT scans in August and September 2013 had been misreported. The first was said to show an omental infarction and the second to be unclear, when on the Claimant's case they showed infection. In relation to the first, the judge found the report to be wrong but nevertheless reasonable. In relation to the second, it was 'sub-optimal' but the radiologist had reasonably recommended appropriate investigations to clarify the diagnosis. There was therefore no breach of duty. However, in determining the test, the judge applied Penny and Muller, commenting 'there can be no question but that the Bolam test with the Bolitho qualification, applies'.

So it seems that for now the Bolam test applies not just to treatment but to diagnosis. This makes little sense but the courts have found a way around its lack of logic by using the Bolitho qualification. In cases where there is no weighing of risks and benefits to justify a diagnostic mistake, the courts can reject expert evidence where it does not stand up to logical analysis. It would be better to replace the Bolam test with a test of reasonable care and skill at very least in pure diagnosis cases. Probably that will happen at some stage but in the meantime we have to wait.

[1] [2015] UKSC

[2] It does not make sense all of the time – consider whether a surgical error could really be said to accord with the practice of a responsible body.

[3] [2000] PNLR 323

[4] [2017] EWHC 218

[5] [2020] EWHC 158 (QB)

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