Brady v Southend University Hospital NHS Foundation Trust [2020] EWHC 158 (QB)
This article originally appeared in Issue 5 (May 2020).
In the bulk of actions for clinical negligence, the standard of care owed to the patient is one point which attracts relatively little judicial consternation. In Brady, and cases involving ‘pure diagnosis’, not so.
Facts
The Claimant had undergone an appendectomy for acute appendicitis in May 2013. She attended her GP in August with acute epigastric pain and, following a referral, underwent a CT scan on 5 August 2013. The consultant radiologist reported “omental infarction”.
On 18 September 2013, the Claimant was reviewed again and a “craggy lump” was noted in her upper abdomen. A second CT scan was performed and discussed by the consultants in surgery and radiology. The scans were sent for review by a specialist at the Royal Free Hospital who had advised that it appeared “like omental infarction.” As a result, the Claimant did not require an urgent gastroscopy. She was discharged home following improvement with antibiotics.
On 16 February 2014 the Claimant attended A&E with complaint of abdominal pain and vomiting. A CT scan the following day and associated investigations revealed an infection. A consultant in infectious diseases wrote to the Claimant’s GP that she was “noted to have what, at the time, was thought to be an omental infarction although with hindsight possibly were deposits of infection.”
The Claimant’s case on breach of duty was that the first and second CT scans showed an actinomycosis infection, and not an omental infarction. This negligent diagnosis led to a further negligent failure to arrange a biopsy. The Defendant’s case was that the Claimant probably had two conditions: an omental infarction, and actinomycosis, but that the conclusion reached of omental infarction was reasonable.
The legal background
The judge began by reciting the classical statement of the standard of care required of a doctor as set out by McNair J in Bolam v Friern HMC [1957] 1 WLR 582:
“[The doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…”
As is well known, this was refined by Lord Browne-Wilkinson in Bolitho v City and Hackney HA [1998] AC 232: respectable minority practice must have a sound and logical basis.
However, as HHJ Andrew Lewis QC observed in Brady, the Bolam test and its refinement in Bolitho concerned ‘treatment cases’, in which a doctor recommends, or undertakes, treatment or further diagnostic procedures. In those cases there may be a reasonable range of treatment. By contrast, a diagnosis on review of a scan is, usually, either right or wrong:
“In [treatment] cases, there are often choices and options available and risks and benefits that need to be considered. However, it has been recognised that in some areas of medical practice, such as radiology or histopathology, there should be limited scope of any genuine difference of opinion. A diagnosis based upon a scan is usually right or wrong. In these “pure diagnosis” cases, there is no weighing of risks against benefits, and no decision to treat or not to treat, just a diagnostic or pre-diagnostic decision, which is either right or wrong, and either negligent or not negligent.” (at [23]).
Notwithstanding these evident concerns, the judge observed that he was bound by Court of Appeal authority in Penney v East Kent HA [2000] Lloyds Rep Med 41, which concerned a failure to diagnose cancerous cells in cervical smear tests.
At first instance, the judge in Penney found that the Bolam test was “ill-fitting to the facts of Mrs Penney’s case”. The Bolam test applies where experts hold differing views as to acceptable medical practice. As the experts agreed that the interpretation was wrong, no question of acceptable practice arose. However, the judge went on to say that if he were wrong about that, the opinion of the defendant’s expert on breach of duty could not withstand logical analysis, and therefore fell within the Bolitho exception.
However, counsel in the Court of Appeal agreed that the Bolam and Bolitho tests applied, and Lord Woolf, giving the judgment of the majority, did not take the opportunity to consider the merits of the comments to the contrary of the judge below. Accordingly, there were three questions to be asked:
1. What was to be seen on the slides?
2. At the relevant time could a screener exercising reasonable care fail to see what was on the slide?
3. Could a reasonably competent screener, aware of what a screener exercising reasonable care would observe on the slide, treat the slide as negative?
Importantly, the first question is a question of fact, to which the Bolam test has no application. The second and third questions are to be analysed by reference to the Bolam test, as refined by the Bolitho exception.
Disposition of Brady
Turning to the facts of Brady, the judge conducted a careful analysis of the experts’ evidence and found that the scans in August and September showed an infection. Their reporting was therefore wrong.
However, the conduct of the radiologist reporting the August CT scan was not negligent. At that stage of the Claimant’s illness he had a proper basis for his opinion which was supported by radiological appearances.
So too in respect of the September CT scan: while her report was “sub-optimal” as it failed to identify differential diagnoses, it provided a “clear view from a radiological perspective” of further investigations which were required. The fact that she had discussed the scan with the consultant surgeon “cured” the criticism that her report failed to identify that the previous working diagnosis of omental infarction was by that time less likely than before.
Finally, the alleged negligent failure to carry out a biopsy was not made out: it was reasonable to have taken a second opinion from clinicians at the Royal London Hospital.
Comment
Brady raises interesting issues, both legal and practical.
As the judge observed, the adequacy of the Bolam/Bolitho test in relation to ‘pure diagnosis’ cases has been doubted. The judge cited at length the comments of Kerr J in Muller v Kings College Hospital [2017] EWHC 128 (QB), a claim where a pathologist had failed to recognise a malignant melanoma following a biopsy. While he was bound by Penney to adopt a Bolam/Bolitho analysis, he did so “with regret”. As Kerr J simply put, in ‘pure diagnosis’ cases “the experts expressing opposing views on that issue cannot both be right.” The judgment in Brady arguably demonstrates similar unease.
As judicial discomfort with the application of the Bolam/Bolitho tests in ‘pure diagnosis’ cases is something of a recurrence, it is perhaps unfortunate that the Court of Appeal in Penney was not in a position to deal with the concerns of the judge below. The standard of care owed to patients has been considered by the higher courts in recent years: in relation to consent, and duties owed by non-clinical staff, as the most prominent examples. This issue might benefit from appellate consideration.
More practically, two points emerge. The first is the curative role played by discussion with colleagues of the September 2013 scan and its proper documentation. The second is the importance of referral to a different hospital for further investigations in rendering the failure to perform a biopsy non-negligent.
For now, clinicians can be reassured that an incorrect diagnosis will not constitute a breach of duty if its diagnosis would be supported by a responsible body of their peers.
