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. 

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