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While the law addressed below is UK legal precedent, the Caribbean Judiciaries continue to consider such precedent when making legal determinations. It would therefore be highly likely that the Caribbean Judiciaries would follow the legal principles set down by UK Common Law.
The law regarding claims involving misdiagnosis of radiology or histopathology (so called ‘pure diagnostic claims’) comes from the case of Penney and Others v East Kent Health Authority [2000] Lloyds Rep Med 41. In this case Lord Woolf MR held that there was a three-stage legal test that had to be used when assessing whether there was a breach of duty by the doctor:
What was to be seen in the slides?
At the relevant time could a [doctor] exercising reasonable care fail to see what was on the slide?
Could a reasonably competent [doctor], aware of what a [doctor] exercising reasonable care would observe on the slide, treat the slide as negative?
The first step in the legal test is a question of fact and hindsight while the second and third steps being the Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 legal test.
There have been various arguments raised regarding how far the Bolam Test should apply to pure diagnostic claims. The reason for this is because it has been argued that if a scan shows something and this was missed then by default it must be negligence. In the case of Muller v King’s College Hospital [2017] EWHC 128, in the judgment, Kerr J noted that:
‘even in a pure diagnosis case such as this, the exercise of preferring one expert to another must be viewed through the prism of the Bolitho exception, rather than, as would be preferable, by rejecting the very notion that the Bolam principle can apply where no Bolam-appropriate issue arises.’
However, following the recent claim of Brady v Southend University Hospital NHS Foundation Trust [2020] EWHC 158, it has been reaffirmed that the current status of the law is that the Bolam test will apply to pure diagnostic claims.
Patient A presented to hospital complaining of head pain radiating behind the right eye, drooping eyelid, and nausea. He was seen by a neurologist who noted there was ‘no focal neurological deficit’ and referred the patient to Medical Protection’s consultant neuroradiologist member, Dr B, for an MRI scan. The referral was marked as urgent but no time frame was provided for when the neurologist was expecting the report. In addition, the referral form made a differential diagnosis of cluster headache and did not mention the drooping eyelid.
The patient underwent the MRI scan in the afternoon and our member did not find any abnormalities on reviewing the images. However, due to our member’s work schedule, he was unable to formally report on this until two days later at which point he noted the imaging was suggestive of a thrombosis. Unfortunately, the diagnosis was made too late and the patient had already been admitted with a stroke.
Medical Protection proceeded to investigate the claim and, by applying the Penney legal test, were unable to defend the claim:
Was something to be seen in the slides? – Yes, as our member identified this two days later.
At the relevant time could a [doctor] exercising reasonable care fail to see what was on the slide? – This was assessed by the claims manager and the medicolegal consultant as being no, especially because of what the member identified two days later.
Could a reasonably competent [doctor], aware of what a [doctor] exercising reasonable care would observe on the slide, treat the slide as negative? This was again assessed by the claims manager and the medicolegal consultant as being no.
As a result of the above, liability had to be conceded and this led to a multi-million-pound settlement. The main reason for this was because the claimant was a young high-earning individual who was unable to work and required life-long care.
The above case study demonstrates that the consequences of misdiagnosing radiology or histopathology scans can be severe. However, there are steps that can be taken to minimise the risks:
What information is contained in the referral form? – it is likely the referral form will contain limited information but it provides a start for your investigation. In the above case study, the member stated that the information contained within the referral form had misled them. In Brady, it was held that, while an infection could be seen on the scan in hindsight, it was reasonable to miss this based on the information the radiologist had available.
What other information do you have to hand? – if you are able to have a conversation with the patient then consider exploring what their symptoms are so you can focus your review accordingly. In the above case study, the patient had informed the nurse in the radiology department about the drooping eye. There were therefore methods for our member to discover the information missing from the referral form.
Double check before reporting – regardless of the contents of the referral form, try to check and review the images and reports at least twice before signing off your report, and to check whether there is any discrepancy between your reading of the images and the patient’s clinical history.
Don’t be afraid to pick up the phone – if you require more information or want to discuss your findings then do not be afraid to discuss this with the referring clinician. Unfortunately, Medical Protection has had a number of successful claims brought against doctors because the referring doctor and the radiologist/histopathologist have not communicated to one another. In the case study above, one of the points that was raised is that the referring doctor did not call the radiologist to confirm how quickly they needed the scan performed but likewise neither did the radiologist. Had they done so it is likely the urgency of the scan would have been discovered and the report prepared before the stroke occurred. If there are any important or critical radiological findings which would lead to potentially life-threatening medical condition, do not simply put them into the written report, always try to follow up by a separate phone call.
Remember to document – radiologists/histopathologists are brilliant at documenting their findings however a common failing we find is that if the adiologist/histopathologist has spoken to a clinician or the patient, it is not documented. If you have a discussion then add the content of this on to your report.
Safety netting – your report is one piece of evidence that the clinician is going to look at so make sure you include safety netting advice where appropriate. For example, if you are not sure if a lump is cancerous, make sure you highlight this and get the referring consultant to take steps to clinically correlate. In the case of Brady, one of the things that went in the radiologist’s favour was that they had given reasonable advice to the referring doctor as to the uncertainty of their diagnosis and how to proceed. If the tests may not be enough to rule out a particular condition with serious consequence, it is important to explain in your report, and to recommend further evaluation or follow-up testing if clinically indicated.
Differential diagnosis - if there are several potential diagnoses then make sure you set these out. In Brady, the radiologist was criticised for not doing this.
If clinicians are in doubt about the risks they face when reviewing imaging or clinical slides, they should contact their medical defence organisation for advice.