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. 

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.

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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.

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“But for” vs Material Contribution and the burden of proof – Andrews v Greater Glasgow Health Board [2019] CSOH 31

In this post Vanessa Cashman of 12KBW examines the recent decision of Lord Pentland [siting in the Outer House of the Scottish Court of Session] in Andrews v Greater Glasgow Health Board [2019] CSOH 31.

Summary

The deceased attended hospital with vomiting and diarrhoea, both black in colour and was discharged with a diagnosis of gastroenteritis. She was taken back to hospital the following day where extensive necrosis of her bowel was discovered. She died the next day.

Breach of duty, principally in relation to whether she should have been admitted on her initial attendance, and causation were in issue. D’s case on causation was that C couldn’t prove when her acute deterioration occurred and therefore couldn’t prove that admission would have prevented her death.

The Court considered the relevant test for causation and considered that both “but for” causation and the material contribution test were satisfied.

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Early Chemo-prophylaxis in Neurosurgery and The Battle of The Experts: Lesforis v Tolias

In this post Daniel Sokol of 12KBW examines the recent decision of the Court of Appeal in YVONNE LESFORIS v CHRISTOS TOLIAS [2019] EWCA Civ 487.

In May 2018, Mr Justice Spencer found that Mr Christos Tolias, a consultant neurosurgeon, had been negligent in giving his patient heparin too early following spinal surgery. This led to the patient suffering a haematoma which, in turn, compressed the spinal cord and resulted in incomplete paraplegia.

Mr Tolias obtained permission to appeal on a single ground: that the judge failed to address the key question, namely whether giving antithrombotic medication to this particular patient within 3 hours of surgery was a breach of duty.

The appeal was dismissed.

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Mothers in Childbirth – Primary or Secondary Victims? Yah v Medway NHS Foundation Trust

In this blog Vanessa Cashman of 12KBW examines the recent decision of Whipple J in Yah v Medway NHS Foundation Trust [2018] EWHC 2964 (QB), a case concerning a claim by a mother for psychiatric damage arising out of the birth of her daughter.

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Witnesses of fact: to call, or not to call? Manzi v King’s College Hospital NHS FT [2018] EWCA Civ 1882

In this post Isaac Hogarth of 12 KBW examines the recent case of Manzi v King’s College Hospital NHS FT [2018] EWCA Civ 1882 in which the Court of Appeal considered whether to interfere with the trial judge’s findings in relation to whether there had been a negligent failure to detect and remove a portion of retained placenta following childbirth. The Court also considered in particular whether the trial judge ought to have drawn an adverse inference from the Defendant’s decision not to call a particular doctor as a witness.

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Sepsis strikes again: administration of wrongly chosen and ineffective antibiotics materially contributes to patient’s death.

Before HM Senior Coroner Christopher P Dorries OBE, Sheffield Coroner’s Court. Narrative conclusion handed down on 11 December 2017.

Rory Badenoch represented the family of the Deceased, Kay Morrison, at a 4-day inquest into the circumstances of her death at the Royal Hallamshire Hospital in Sheffield on 21 June 2015. The Coroner concluded that the failure to take and act upon a proper history of multiple antibiotic treatments in the past materially contributed to her death from sepsis.

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