News and Publications

Clinical negligence claims: the application of Bolam and Bolitho in ‘treatment’ and ‘pure diagnosis’ cases

Posted: 17/02/2020

The case of Brady v Southend University Hospital NHS Foundation Trust [2020] EWHC 158 (QB) examines once again the application of the classic Bolam and Bolitho tests in cases involving elements of both ‘pure diagnosis’ and ‘treatment’.

In delivering his judgment in Brady, Andrew Lewis QC (sitting as Deputy Judge of the High Court) reviewed whether the current applicable law is suitable for application in all clinical negligence claims; namely, distinguishing between those cases of advice, treatment or both versus those cases purely addressing the issue of diagnosis.

Mr Lewis QC, in dismissing the claim, found that although, on the balance of probabilities, an early biopsy in 2013 would have revealed infection and thus allowed the claimant the opportunity to avoid her subsequent catastrophic illness in February 2014, the criticisms of the defendant had not been proven.

The facts

The claimant’s case concerned the delayed diagnosis of actinomycosis; a rare, infectious disease in which bacteria spreads from one part of the body to another through body tissues. Over time, it can result in linked abscesses, pain and inflammation. Between May 2013 and February 2014 the claimant developed a left-sided psoas abscess containing gas and fluid. It ultimately required surgical drainage and multiple surgical interventions; following which, microbiology evidence confirmed actinomyces.

During the relevant period, the patient underwent two CT scans on 2 August 2013 and 18 September 2013. The first CT scan reported a mass in the right upper quadrant. The reporting radiologist advised that its appearance was in keeping with omental infarction rather than malignancy. The second CT scan, in the face of raised inflammatory markers, objectively reported that there were visible abnormalities but expressed uncertainty over the diagnosis. Further evaluation was recommended by the reporting radiologist.

The claimant’s case was that following the first and second CT scans, the omental mass seen on imaging should have been biopsied which would have confirmed a diagnosis of actinomycosis. Had this been diagnosed, the ensuing deterioration and treatment in February 2014 would have been avoided.

The defendant’s case was that the patient suffered from two rare conditions, omental infarction and actinomycosis, and that the two reporting radiologists had acted reasonably in respect of their conclusions drawn from both the first and second scan.

The issues

Upon review, the CT scan performed in September 2013 had demonstrated an abscess of the anterior abdominal wall which was thought to be omental infarction but in hindsight was likely to be deposits of infection. One of the issues to be determined by the court was whether the first and second CT scans had been reported in a reasonable manner, and whether it was reasonable not to perform a biopsy to confirm a specific diagnosis when several different diagnoses were considered.

The legal tests

The classical legal standard of care taught to all budding clinical negligence practitioners is quoted from the judgment of 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… Putting it the other way around, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”

In 1998, the judgment in Bolitho v City and Hackney HA introduced the caveat that a defendant producing evidence of a respectable minority opinion would not avoid liability unless the opinion was of a sound and logical basis:

“In cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”

In the case of Brady, Mr Lewis considered the classic statements of Bolam and Bolitho and their respective application in ‘treatment cases’ - where a doctor recommends or undertakes a particular treatment or further diagnostic procedure.

These cases are distinguished from ‘pure diagnosis’ cases such as radiology or histopathology where there is limited scope for any genuine difference of opinion, as a diagnosis based on a scan or histology slide is either right or wrong. In noting the distinction, Mr Lewis was reluctantly bound by the decision of Penney v East Kent HA [2000] Lloyds Rep Med 41.

The case of Penney concluded that when determining what was visible on a diagnostic image (such as a radiograph or pathology slide) the exercise of preferring one expert to another must be viewed through the prism of the Bolitho exception.

The application of Bolam and Bolitho has come under criticism before in the matter of Muller v Kings College Hospital NHS Foundation Trust [2017]. Kerr J expressed his frustration that cases of ‘pure diagnosis’ had not been in the minds of the judges at the time of Bolitho. In an obiter comment, Kerr J indicated that in cases of ‘pure diagnosis’ the Bolam principle should be dispensed with, as no ‘Bolam-appropriate’ issue arises as there is no ‘weighing of risks and benefits, only misreporting which may or may not be negligent. The experts expressing opposing views on that issue could not both be right’. Kerr J expressed that such matters should be a decision for the court as a matter of fact and not delegated to experts.

The judgment

In determining the question of whether or not the negligence could be established in Brady, counsel for the claimant and defendant disagreed as to the appropriate standard of care to be applied insofar as it could be considered a ‘pure diagnosis’ case.

Andrew Lewis QC dismissed the assertion that this was a case of ‘pure diagnosis’ on the basis that it was the claimant’s case that a range of diagnoses were available upon interpretation of each of the CT scans and that the alleged failure was to perform a specific test (a biopsy) to confirm the correct diagnosis.

Mr Lewis, once again bound by the appellate courts, concluded that what was visible on the CT scans was essentially a question of fact for the court to determine on the balance of probabilities, with the assistance of witness and expert evidence. However, the question of whether the two reporting radiologists had been negligent or not must be determined in accordance with Penney and Muller applying the test of Bolitho, even where to do so would be in conflict with the court’s finding of fact. There was no doubt that the advancing of differential diagnoses or recommendations of further treatment or investigations should be determined in the face of Bolam and Bolitho.

Ultimately, the court dismissed the claimant’s case. Within his concluding statement, Mr Lewis remarked that while the court determined that a biopsy in 2013 would have confirmed the infection and avoided the claimant's later illness in February 2014, the criticisms of the defendant could not be substantiated by applying the Bolam and Bolitho tests.

Arrow GIFReturn to news headlines

Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP