Clinical negligence and the best cause of treatment
After a patient receives a diagnosis, even the most preeminent and distinguished medical practitioners can disagree on the best course of treatment. Some may recommend conservative management, such as physical therapy or medication. Others may admonish such an approach, instead advising patients to undergo invasive surgery at an early stage. If something goes wrong with treatment, patients may lament following the advice of one practitioner over the other. They may even suspect that their practitioner’s advice was negligent.
However, the courts accept that medical opinions differ. The courts will not find a practitioner to be negligent when it comes to advice on treatment so long as their recommendations follow those of a responsible body of medical practitioners within a particular discipline. This is known as the Bolam test, following the judgement in Bolam v Friern Hospital Management Committee  1 WLR 583. This is only fair when it comes to treatment. Disagreement between two doctors does not mean one is negligent, only that the treatment of disease is a complex pursuit with many possible treatment options that could all be equally valid.
But what about before a diagnosis is made? What standard do the courts hold medical practitioners before they are giving advice on treatment, and instead they are trying to diagnose the problem?
Before a patient receives a diagnosis, they may require investigations, including radiological assessment. Suppose a patient has fallen off their bicycle and doctors in A&E suspect they have broken their leg. Doctors will send the patient to have an x-ray. A radiologist will interpret the x-ray, and make the diagnosis of whether the patient has or hasn’t broken their leg. There is no weighing up of risks and benefits, no decision to treat or not to treat. This is known as a case of pure diagnosis i.e. whether there is or isn’t a break.
How will the courts then approach a case where the Claimant alleges that the radiologist has missed a broken leg when reviewing the x-ray? Do the courts still accept a difference of opinion?
The courts considered these issues most recently in the cases of Brady v Southend University Hospital NHS Foundation Trust  EWHC 158 (QB) and Muller v Kings College Hospital NHS Foundation Trust . In such cases, the courts will first consider what was visible on the radiology. Was a break actually there to be seen on the balance of probabilities? The courts will rely on expert evidence from medical professionals such as radiologists to assist their determination.
However, this is not the end of the matter. Once a court has decided the above question of fact, and much to the chagrin of many legal practitioners, the courts have decided that Bolam still technically applies to cases of pure diagnosis. The court must then ask whether a reasonably competent radiologist, aware of what a radiologist exercising reasonable care would observe on the x-ray, treat the x-ray as not showing a fracture. And then, could a radiologist exercising reasonable care fail to see what was on the x-ray?
Such an approach raises eyebrows – if a fracture is there to be seen, how can a reasonable body still conclude it was reasonable to miss it? Put another way, in applying Bolam, it follows that two reasonable bodies of medical opinion could both be right when at the same time disagreeing about whether a radiologist should see a fracture. But how can two reasonable bodies of medical practitioners both be right on the question of whether it was reasonable to miss a fracture? The court has already by this point concluded that the fracture was there to be seen. Surely, the courts should only consider the question of whether the radiologist was or was not reasonable to miss the fracture.
The courts have somewhat haphazardly invoked the Bolitho exception to get around the shortcomings of Bolam in cases of pure diagnosis. The case of Bolitho v City and Hackney Health Authority  4 All ER 771 in brief required that a reasonable body of practitioner’s practice has to withstand logical analysis. In cases of pure diagnosis, courts have the means to conclude that the Defendant’s medical evidence, which supports a practitioner’s failure to spot a break on an x-ray, does not withstand logical analysis. So, the court can conclude that while the Defendant has provided medical evidence of a reasonable body that supports the failure to diagnose the fracture, the reasonable body was applying to lax a standard that did not hold up to logical analysis.
Bolitho is a somewhat roundabout way to say that it was unreasonable to miss a fracture. Surely it would be more sensible for the courts to do away with the Bolam standard altogether? Once the court decides whether there was or wasn’t a fracture, the only question to really ask is whether a doctor was reasonable to miss it? In sum, to prove a case of pure diagnosis, it is still incumbent on a Claimant to get over the Bolam hurdle and show that no reasonable body of competent practitioners would have failed to spot the fracture. Claimants are likely to often rely on the Bolitho exception i.e. that the standard does not withstand logical analysis. However, the law as it stands is somewhat contradictory and vague. Legal practitioners continue to await further clarification from appellate courts on the correct standards to apply in cases of pure diagnosis.