Falling outside the principles of “pure diagnosis” cases: Brady v Southend University Hospitals NHS Foundation Trust [2020] EWHC 158 (QB)

In this post, Henry King of 12KBW examines the limited application of so-called “pure diagnosis” cases in the context of a case where failure to diagnose a patient’s abdominal mass as an actinomycosis infection was found to be non-negligent on traditional Bolam / Bolitho principles.

The cases of Bolam v Friern Hospital Management Committee [1957] 1 W.L.R 582 and Bolitho v City and Hackney Health Authority [1997] UKHL 46 concerned treatment and whether the doctor has acted within a reasonable, respectable and responsible range of medical opinion. As such, there is room for a genuine difference of opinion. There are, however, cases in (say) radiology or histology where a diagnosis is likely right or wrong. This is termed a “pure diagnosis” case. 

Brady v Southend University Hospitals NHS Foundation Trust [2020] EWHC 158 (QB)  was a case where the alleged negligence was a failure to perform a biopsy to confirm a specific diagnosis given that, on the Claimant’s case, there were a range of diagnoses. As such, Andrew Lewis QC found that consideration of the claim as a “pure diagnosis” case was of limited effect, preferring to categorise it as follows:

  • First, to find as a fact what the correct diagnosis at the time was likely to have been;
  • Second, and despite any confliction with the Court’s finding, whether the treating team’s assessments were negligent or not in accordance with the principles of Bolam, Bolitho, and Penney v East Kent HA [2000] Lloyds Rep Med 41,. 

The Facts and the Parties’ Respective Cases

The Claimant presented to her GP and then to the Defendant’s trust complaining of central abdominal pain and in the upper left quadrant following an appendectomy that had taken place some months previous. 

The First Scan

On 05.08.13, The Claimant underwent a CT scan (“the First Scan”). Dr Tam reported a mass in the upper right quadrant consistent with an omental infarction. Given the Claimant’s recent appendectomy, this made the diagnosis of omental infarction “most likely”. This diagnosis was accepted and the Claimant was therefore discharged. 

The Claimant’s case was that this should have been diagnosed either as a malignancy or an infective process and that these matters should not have been ruled out. The Defendant’s case was that this was a reasonable diagnosis in all the circumstances. 

The Second Scan / Failure to Biopsy

On 20.09.13, following two presentations to outpatients, a second CT scan was performed (“the Second Scan”). It was agreed that this scan showed that the mass had “grown considerably”. The treating radiologist was uncertain as to the diagnosis but kept open the options of omental infarction, malignancy and infection. The treating team recommended further urgent evaluation. In evidence, the treating doctor stated that she would have recommended surgery or a biopsy in discussion with her superior, but that the diagnosis was uncertain. On the basis of the uncertainty, a secondary specialist opinion was obtained from a tertiary care unit. 

On 25.09.13, the specialist stated that it looked like an omental infarction and therefore urgent gastroscopy was not required. 

Again, the Claimant’s case was that this was not an omental infarction and should have been diagnosed as a malignancy or infective process, whilst the Defendant’s case was that the course of action taken was reasonable and in line with Royal College of Radiologists (“RCR”) best practice. 

Issues for the Court to Decide

The Judge found there to be five issues to be resolved:

  • Was the First Scan reported in a reasonable manner?
  • If the First Scan was incorrectly reported, had it been correctly reported – would this have lead to a biopsy? 
  • Was the Second Scan reported in a reasonable manner? 
  • Was it mandatory to perform a biopsy in September 2013 to investigate the mass?
  • Would said biopsy have confirmed actinomycosis? 

The Judge’s Application

In respect of the first scan, whilst the diagnosis was wrong, it was not negligent. This is because it accorded with a myriad of other factors (see [36]) and RCR guidance. As such, it was reasonable in all the circumstances. Further, the judge concluded that had a malignancy or infection been reported, a biopsy was unlikely to have been taken at that stage (at [44]).

In respect of the second scan, the treating team recommended “further urgent evaluation” in line with RCR guidance. Thus, and despite being labelled at “sub-optimal” in the joint statement between the radiological experts, Andrew Lewis QC did not find that this was negligent, and indeed pointed to what the Claimant wanted, further differential diagnoses. At this point, the treating team did not biopsy and the judge found this to be in accordance with a reasonable body of medical opinion. Whilst the Claimant’s expert in this matter gave “refreshingly honest” evidence that a surgeon who is uncertain of a diagnosis should biopsy, this was rejected by the Court. This was on the basis that a biopsy is an invasive procedure with extremely rare but potentially catastrophic complications and seeking a second opinion when in doubt of a diagnosis is a reasonable course of action. 

Analysis

This was a case that largely turned on a mixed question of law and fact, given that the judge held that it was a partial pure diagnosis case. 

Had this been a pure diagnosis case (and indeed should the pure diagnosis dictum be applicable) this is a case in which breach and causation would likely have been established on the Judge’s findings of fact. However, the Claimant encountered stumbling blocks in that two of her experts were not preferred, and the current law adopts a Bolam / Bolitho approach to this kind of case. As such, whilst it was expressly held as a fact that an earlier diagnosis and biopsy would have made all the difference, on the law as it stands this was not negligent. 

Of note is the judge’s extensive quotation from the dictum of Kerr J in Muller v Kings College Hospitals NHS Foundation Trust [2017] EWHC 218 cited at paras [26]. The judge neither endorsed nor disavowed Kerr J’s reservations in Muller, yet set them out at length. As such, this takes practitioners no further forwards in respect of pure diagnosis cases, save to serve as a warning that such cases may well be characterised entirely otherwise by the Court. 

Update – message from the new co-editors

A message from Lizzie Boulden and Charley Turton

Dear blog readers,

We write by way of introduction and to pass our sincere thanks to outgoing editor, Rory Badenoch, who over the past three years has done a stellar job co-ordinating the blog in collaboration with John-Paul Swoboda. Thank you, Rory.

John-Paul remains in post as editor-in-chief.

As incoming co-editors, we join you at a strange time (amid the COVID-19 pandemic) and, as such, we know that you will be relying more than ever on online resources and content. We hope to bring you information, insight and much-needed distraction.

Please be on the lookout for further resources and features from 12KBW’s Clinical Negligence Team over the coming weeks and months, in the form of webinars, Q&As, and panel discussions, which we will keep you updated on.

As always, we welcome your comments and feedback. Please feel free to get involved and stay connected.

Best wishes,

Lizzie and Charley

ABC v St George’s Healthcare NHS Trust & Ors [2020] EWHC 455 (QB)   Does a doctor owe a duty of care to disclose a hereditary disease to a patient’s child?

In this post Helen Waller of 12KBW discusses Mrs Justice Yip’s dismissal of a claim that sought to establish that a doctor owed a duty of care to disclose a patient’s hereditary disease to his child.

An earlier appeal of a strike out application in this tragic case has already been reported on by Rachit Buch of 12KBW. That report can be found here:

The Factual Background

In brief summary of the facts, the father, XX, had killed the claimant’s mother in 2007, for which he was made subject of a restricted Hospital Order pursuant to the Mental Health Act 1983 following a conviction for manslaughter by reason of diminished responsibility. It transpired that XX had Huntington’s disease, a hereditary choreic syndrome. XX made it clear that he did not want the claimant and her sister to know. This remained true when XX learnt that the claimant was pregnant. XX knew that his status meant that the claimant might have Huntington’s disease and her unborn child also. He was aware that this might influence her decision about whether to continue with the pregnancy. Continue reading “ABC v St George’s Healthcare NHS Trust & Ors [2020] EWHC 455 (QB)   Does a doctor owe a duty of care to disclose a hereditary disease to a patient’s child?”

Causation in hypothetical scenarios: the interplay between Bolitho, Bolam & Montgomery

In this post, Christopher Fleming of 12KBW discusses the recent decision in Metcalf v Royal Devon and Exeter NHS Foundation Trust [2019] EWHC 3549 (QB).

The case concerned a hypothetical situation that would have existed had the Claimant been referred for necessary investigations sooner. The test to be applied was set out by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1997] UKHL 46. The two-stage test, as applied to this case, was:

(a) what would the treating clinicians have done had the breach of duty not occurred? And

(b) if the treating clinicians had not discussed with the Claimant the option of surgery or radical radiotherapy, would that have been negligent?

The Court held that the Bolam test has no relevance to the first of those questions but was relevant to the second question, however, it should now be considered by reference to the decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11.

Continue reading “Causation in hypothetical scenarios: the interplay between Bolitho, Bolam & Montgomery”

The difficulty in establishing negligence when an unrecognised complication arises: Collyer v Mid Essex Hospitals NHS Trust [2019] EWHC 3577 (QB)

In this post Charley Turton of 12KBW discusses the recent decision of HHJ Coe QC (sitting as a High Court Judge) in Collyer v Mid Essex Hospitals NHS Trust [2019] EWHC 3577 (QB). The Claimant suffered permanent nerve palsy of the hypoglossal nerves during laryngectomy. In 145 years of the operation being conducted such an injury had never been reported. C argued that in these circumstances human error was the most likely cause and a “presumption of negligence” arose.

Continue reading “The difficulty in establishing negligence when an unrecognised complication arises: Collyer v Mid Essex Hospitals NHS Trust [2019] EWHC 3577 (QB)”

Guidance for Medical Experts

In this post, Daniel Sokol of 12KBW looks at the 2019 guidance of the Academy of Royal Medical Colleges for medical experts.

As clinical negligence lawyers, we know all too well that the quality of the medical expert evidence can win or lose a case. Hence the importance of careful selection of the expert (including looking at reported cases for judicial remarks on the expert), clear instructions, sharp analytical skills upon receipt of the report to assess its strength and weaknesses, and a willingness to politely but robustly challenge the expert in conference.

Continue reading “Guidance for Medical Experts”

Memory and the documentary record in cases involving disputes of fact

In this post James Beeton of 12 KBW discusses the decision of HHJ Gore QC (sitting as a Deputy High Court Judge) in  CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB), a clinical negligence claim involving a disputed documentary record.

The case is of particular interest because of the judge’s concerns about what has become the conventional approach to human memory in cases involving disputes of fact developed in the judgment of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15] to [23]. The judge’s comments about that approach have recently received support in the Court of Appeal’s unanimous judgment in Kogan v Martin and Ors [2019] EWCA Civ 1645. This article will argue that the judge’s concerns were overstated and that the result in CXB was consistent with a correct application of the Gestmin principles.

Continue reading “Memory and the documentary record in cases involving disputes of fact”

New book on claims arising from sepsis, meningitis and meningococcal disease

In this post Isaac Hogarth of 12KBW discusses his new book ‘A Practical Guide to Sepsis and Meningitis Claims‘, ahead of its launch later this month.

Infectious diseases (such as meningitis), and sepsis are terrifying. One of the very first clinical negligence inquests on which I was instructed involved a child who died from sepsis, with death occurring within a staggeringly short time of onset of symptoms.

Continue reading “New book on claims arising from sepsis, meningitis and meningococcal disease”

Neonatal death contributed to by Neglect

Before HM Senior Mrs Caroline Beasley-Murray, Essex Coroner’s Court. Narrative conclusion handed down on 30 July 2019.
Rory Badenoch, instructed by Hugh James Solicitors, represented the family of the Deceased, Ennis Pecaku, at a 3-day inquest into the circumstances of his death from perinatal asphyxia at Basildon Hospital. The Coroner concluded that there were serious failings in the care provided to baby Ennis and to his mother by Basildon Hospital and that his death was contributed to by neglect.

Continue reading “Neonatal death contributed to by Neglect”