[2020] EWHC 158 (QB)
The Facts
In May 2013, the claimant underwent a laparoscopic appendectomy [1] at the Southend University Hospital. In August 2013, she attended her GP with acute epigastric pain [2] and was referred to the surgical assessment unit at the hospital.
A CT scan was performed and reported by a Consultant Radiologist,as “omental infarction” [3]. The claimant improved and was discharged home. She was reviewed at out-patients and she had continuing pain. It was thought that the omental infarction was unrelated to her appendectomy.
In September 2013, the claimant was reviewed in the Outpatients clinic and she was still in pain and had a craggy lump in the upper abdomen. She was admitted to hospital and commenced on antibiotics. She underwent another CT scan and a large mass was reported related to the posterior aspect of the right abdominal wall. The scans were sent to the Royal Free Hospital for review. There was also a discussion with a specialist upper GI Surgeon at the Royal London Hospital who reviewed the scans and indicated that it looked like omental infarction. The claimant was discharged home on antibiotics.
There were delays in follow up and towards the end of the year there was a discussion about performing a gastroscopy [4] and repeat CT scan.
In February 2014, the claimant attended the A&E Department of the Southend University Hospital, complaining of a one-week history of left-sided abdominal pain and vomiting. A CT scan the following day demonstrated a left-sided psoas abscess [5] containing gas and fluid. This required surgical drainage. The previous abdominal mass was no longer visible. Microbiological analysis confirmed the infecting organism as actinomyces [6].
The claimant underwent a number of further surgical procedures under general anaesthetic and was discharged home on 26th February 2014.
Issues in the case
The claimant argued that the omental mass observed on the first and second CT scans was an actinomycosis infection and not an omental infarction. The source of the infection was the turbid fluid noted to have leaked from the claimant’s appendix in May 2013.
She offered to prove that had the omental mass been biopsied, a diagnosis of actinomycosis would have been made at that time. The source of the psoas abscess, found in a different part of the claimant’s abdomen was the same.
The Defendant contended that the claimant probably suffered two rare conditions, an omental infarction and actinomycosis. However, even if the claimant was right there was no failure in care. The medical practitioners acted reasonably in concluding that the abdominal mass in 2013 was probably an omental infarction and treating it conservatively without undertaking a biopsy.
The decision
The first question for the court was what was visible on the CT scan. It was concluded that determining what was on the CT scans was essentially a question of fact for the court. The standard of proof was on the balance of probabilities. In answering this question the court will be assisted by the witnesses and expert evidence.
Having determined what was seen on the scans the court required to adjudicate on whether there was any failure in care applying the professional practice test. The court applied the Bolam test [7] with the Bolitho [8] qualification to the question of negligence.
The court found as a fact that the source of the infection leading to the February 2014 abscess, was the appendix operation of May 2013. The court was also persuaded with the benefit of hindsight that the omental mass seen in 2013 was probably not an infarction but an infection. On the issue of negligence applying the Bolam test to these facts the court was not persuaded that there was any negligence in the interpretation of the scan.
Comment
This case is helpful in highlighting that it is important to make a distinction between what is essentially a question of fact for the court and what is a question of professional practice. Where there is a difference of opinion between expert witnesses about a question of fact, the court has a duty to resolve that dispute and reach a finding. Expert witnesses should not be permitted to usurp the function of the court in this area and it is the duty of the lawyers to ensure this does not occur.
The Bolam test has two limbs. The first is the requirement that a professional exercise reasonable care in undertaking the tasks associated with their profession. The second and the one we are most familiar with is that a professional is not liable if he has complied with a responsible professional practice, allowing for the possibility that there may be more than one responsible professional practice. The court is assisted by expert witnesses on the question of what is a responsible professional practice.
At this point the requirement is to subject the evidence of the expert witnesses to logical scrutiny applying Bolitho. If having undertaken that analysis the court concludes that there is more than one responsible practice the court then cannot choose between them and find the doctor liable on the basis that though his practice was responsible there was another better practice. The court is thereby precluded from choosing between expert evidence.
However, where there is a difference of opinion by experts about a question of fact this is not resolved by application of the professional practice test. The court has a duty to resolve that issue.
This issue has been previously been considered by the courts in Penney, Palmer and Cannon v East Kent HA [9] The allegation was that cervical smears had been negligently reported.
Screening was performed by biomedical scientists or by qualified cytology screeners. They did not diagnose but reported what they saw on the slides. If there was an abnormality seen or doubted the slide was passed to a senior screener who would then pass to a pathologist if he/she agreed.
It was agreed by all the experts that if a screener was in doubt the slide should not be classified as negative. In each case the claimant’s slides were classified as normal or negative but they developed cervical cancer.
The trial judge held that the Bolam test did not apply and found that there was negligence. The Court of Appeal held that Bolam did apply subject to the Bolitho provision to questions of negligence. However, the Bolam test did not apply to questions of fact, including the question of what could be seen on the individual slides. If there was a dispute of fact between the experts as to what could be seen on the slides the judge had to make his own finding in fact on balance of probabilities, a finding which might inevitably involve the rejection of some expert evidence. The questions to be asked were:
(i) what could be seen on each slide
(ii) could a reasonably competent cytoscreener have failed to see what was on the slide
(iii) could a reasonably competent cytoscreener, bearing in mind what he or she should have observed, have treated the slide as negative?
The answer to the first question required expert evidence but if there was a dispute between experts as to what could be seen on the slides the judge had to make his own finding in fact on the balance of probabilities. In doing so this would inevitably involve rejection of some expert evidence. When the judge had made the finding in fact he then required to consider point two and three [10].
In Muller v Kings College Hospital NHS Foundation Trust [11]the claimant had a wound on his foot which in November 2011 was biopsied. A pathologist determined that it was a non-malignant ulcer. The wound failed to heal and the claimant underwent an excision and the biopsy was reported as malignant melanoma.
The question for the court was whether there was negligence in the failure to diagnose melanoma on the biopsy in 2011. The defendants relied upon Bolam and reference was made to C v North Cumbria University Hospitals NHS Trust [12].
The claimant argued that it was the role of the court, not the experts to determine the facts about what pathological features could be seen on the biopsy in 2011 with reference to Penney.
The court drew a distinction between cases involving treatment or advice, where it was thought the Bolam test would be applied and cases involving “pure diagnosis” where there was no weighing of risks against benefits and no decision to treat or not to treat. Kerr J said where 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 cannot both be right. And the issue is, par excellence a matter for the decision of the court.”
However, due to the finding of the Court of Appeal in Penney Kerr J drew the conclusion “with some regret” that even in the pure diagnosis cases he required to view the expert opinion before him “through the prism” of the Bolitho exception rather than as would have been preferable- by rejecting the very notion that the Bolam principle can apply.
It was also interesting in this case that the defendant’s expert was rejected as he expressed a view that the error in reporting was excusable and this is a lower standard of care than was required by law. The judge used Bolitho to reject the expert opinion as the reasoning and conclusion was not defensible. It must also be noted that where there are two possible explanations for an event but competing expert views it is for the court not the experts to resolve that factual dispute. In Fallows v Randall [1997] 8 Med.L.R. 160 there were two differing expert views on how a sterilisation procedure could have failed. The trial judge was clear in stating that the Bolam test has no application to this situation. The judge required to determine the facts on the ordinary basis of balance of probability.
In conclusion, lawyers should be vigilant when preparing cases to identify issues that relate to pure questions of fact where the Bolam test should not apply. Where the question for the court relates to interpretation of a scan or film the first question is what is seen as a matter of fact. Once this is established the court can then address whether there is a failure in care in not identifying it.
[1] This is a minimally invasive procedure to remove the appendix
[2] Pain in the upper abdomen
[3] This is an acute vascular disorder which compromises tissue of the greater omentum.
[4] This is a procedure where a thin flexible tube called an endoscope is used to look inside the oesophagus (gullet), stomach and first part of the small intestine (duodenum)
[5] This is a suppurative collection in the psoas muscle
[6] Actinomyces is the normal colonizing bacteria of the oral cavity and may also be present in the lower gastrointestinal and genitourinary tracts
[7] Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582
[8] Bolitho v City of Hackney H.A. [1998] A.C. 232
[9] [2000] Lloyds Rep Med 41; Penney was applied in Conway v Cardiff & Vale NHS Trust [2004] EWHC 1841 (QB))
[10] Applied in Manning v King’s College Hospital NHS Trust [2008] EWHC 1838 (QB) aff’d [2009] EWCA Civ 832
[11] [2017] EWHC 218
[12] [2014] EWHC 61 (QB).
What us your experience of flawed Royal College of…..Surgeons etc reports ?