Is It Always Negligent To Get It “Wrong”?

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Is It Always Negligent To Get It “Wrong”?

Published 17 February 2020

The recent decision of the High Court in the case of Brady v Southend University Hospital NHS Foundation Trust confirms an important principle in clinical negligence cases: if a radiologist incorrectly interprets a scan, with the result that the wrong diagnosis is made, it does not necessarily mean that they were negligent.

The Background

The Claimant underwent two CT scans of her abdomen in August and September 2013, after she developed pain in her upper abdomen. The radiologist who reviewed the first scan reported a mass in the abdomen that was most likely omental infarction (a condition involving lack of blood supply to the apron-like fold that lines the abdominal cavity). The Claimant’s symptoms improved and it was not considered that any intervention was needed, so she was discharged home.

The Claimant’s pain persisted which led to the second scan. The radiologist who reported that scan also thought the mass might be an omental infarction, but was unsure and therefore recommended biopsy. However, after the referring surgeon sought a second opinion from a colleague at another hospital it was again thought that the mass probably was an omental infarction and that biopsy was not needed. Again the Claimant’s condition improved and she was discharged home.

In February 2014, the Claimant presented to hospital with further abdominal pain and a further CT scan was performed. An abscess was found in her abdomen, for which she required surgical drainage. The mass that had been present in August and September 2013 was no longer visible, but on the basis of microbiological analysis, it was confirmed that the Claimant had a rare infection in her abdomen.

The Issues

The Claimant’s case was that the mass that was identified in the August and September 2013 CT scans was the infection, not an omental infarction, and that the radiologists breached their duty of care by failing to make the correct diagnosis. She argued that, if they had done so, the infection would have been successfully treated and she would not have developed the abscess that had to be drained in February 2014. Importantly, it was argued on the Claimant’s behalf that the tests that have traditionally been used by the courts to decide clinical negligence cases (i.e. the Bolam and Boltiho tests) should not be used in “pure diagnosis” cases. In other words, in cases which are solely concerned with the question of whether a diagnosis was right or wrong, the court should not concern itself with whether there is a reasonable and responsible body of logically sound medical opinion that is supportive of the Defendant. After all, a reasonable and responsible body of logically sound medical opinion would never support an incorrect diagnosis.

The judge had some sympathy for the Claimant’s argument that Bolam and Bolitho should not be applied to this case, but nonetheless he felt bound by precedent to do so. He decided, therefore, that he first had to determine whether, as a matter of fact, the mass in the August and September 2013 CT scans was an omental infarction or the infection. Then he had to apply the Bolam and Bolitho tests to determine whether the radiologists were negligent in their interpretation and reporting of the scans.

The Decision

The judge decided that the mass in the August and September 2013 CT scans probably was the infection, not an omental infarction. In that sense, both radiologists made the incorrect diagnosis (though, importantly, neither of them had said that the mass definitely was an omental infarction, but had expressed themselves in more cautious terms). However, the judge nonetheless decided that neither of the radiologists were negligent. This was essentially because (i) he accepted the evidence of the Defendant’s expert radiologist, Dr Tolan, that a reasonable and responsible body of radiologists would have considered omental infarction to be the most likely diagnosis, and (ii) the radiologists who reported on the scans had given reasonable advice to the treating surgeons as to the uncertainty of the diagnosis and further investigations that could be undertaken. Notably, the judge acknowledged that the second radiologist’s report was “suboptimal”, in the sense that she did not set out the differential diagnoses in the report. However, she “cured” that failure by giving a clear view in her report in relation to the further investigation that she considered to be advisable and by giving good verbal advice to the referring surgeon.

The Impact

This decision should give reassurance to radiologists and other clinicians that the law does not expect them to always get diagnoses right, and that the courts will not allow the benefit of hindsight to be used to undermine judgments about diagnosis that were carefully made at the relevant time. It remains the case that, even in “pure diagnosis” cases, the test that will be applied by the courts is whether a reasonable and responsible body of logically sound medical opinion would support the diagnosis that was made. If that test is passed by the clinician they will not be found to have been negligent, even if their diagnosis turns out to be wrong.

Authors

Ciaran Claffey

Ciaran Claffey

Winchester

+44 (0) 1962 705502

Benjamin Newall

Benjamin Newall

Winchester

+44(0)1962 70 5549

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