Still up in the air – is it a Bolam case or a Penney case?

By Christopher Rafferty

 

In 2012 Mr Muller was diagnosed with a malignant melanoma on the sole of his left foot. The cancer had spread, despite a quick biopsy, and all secondary metastases were then removed. Fortunately, Mr Muller proceeded to receive positive six-month scans, is now clear of cancer and has maintained a normal life expectancy. All perfectly ordinary one would think – save that in 2011 a histopathologist had diagnosed the malignant melanoma as a non-malignant ulcer.

One of the key questions before the Court over four days in December was this: was the misdiagnosis by the histopathologist in 2011 negligent or not?

Dr Goderya’s work as a consultant histopathologist included examining specimens and tissue samples under a microscope and reporting on her findings. An initial ‘punch’ biopsy had been taken from Mr Muller’s foot and sent to Dr Goderya for examination – she concluded that there was no malignant melanoma; her findings were reported to Mr Muller as:

“…when the skin was examined under the microscope the features were of an ulcer consistent with a history of trauma. There was no evidence of any other pathology”.

Despite this, the breadth of subsequent expert opinion agreed that at the time of the biopsy the melanoma was indeed present. Upon reviewing her findings in September 2012 Dr Goderya conceded that:

“[i]n retrospect, some of these cells may be melanocytic [i.e. cancerous] in nature, which due to the lack of melanin and obvious nesting pattern were misinterpreted as being histiocytes [i.e. benign] in an ulcer”.

What, then, to make of the Defendant Trust’s submission that Dr Goderya had not breached her duty to exercise reasonable care and skill?

Perhaps surprisingly, given the number and variety of such cases to have troubled the Court since Bolam was decided 60 years ago, the parties disagreed as to the applicable law, each party bringing experts to support their position.

The Defendant Trust proposed the standard Bolam interpretation, i.e. whether Dr Goderya:

“…was acting in accordance with a practice of competent respected professional opinion, accepted as proper by histopathologists skilled in the art of interpreting and reporting on biopsies by examining them on slides under a microscope.”

Mr Muller however relied upon a different standard – that put forward in the judgment of Lord Woolfe MR in the Court of Appeal in the case of Penney -v- East Kent Health Authority [2000] PNLR 323:

“…the court must determine the objective facts about what pathological features were there to be seen on the slides – which in the present case is a matter of agreement – and then decide for itself whether, in the light of the differing experts’ views, the misdiagnosis was one that must have been made without the use of reasonable skill and care.”

Mr Justice Kerr, to assist in deciding which authority would apply to Mr Muller’s case, differentiated between two genres of medical claims:

• Those in which a diagnosis has already been made, with the subsequent treatment steps taken by medical professionals being subject to the standards of a responsible body of medical opinion.
• Those in which no diagnosis has been made, the allegedly negligent act being the diagnosis itself – it is either right or wrong, and if wrong, either negligent or not negligent, without recourse to a body of medical opinion.

It was decided that the most analogous example to the index case was that of Penney:

“…permitting the court to choose between competing expert opinion on the issue the court has to decide: whether the act or omission of the defendant’s employee fell below the standard reasonably to be expected of her.”

The expert evidence on behalf of the Trust concluded that whilst the melanoma was present as Dr Goderya examined the specimen, failure to accurately note its presence was an easy mistake to make; the initial biopsy was limited in its scope, the type of melanoma was very rarely seen (Dr Goderya had not seen it in nine years of practice), there was an absence of pigmentation and the presence of fibrosis amongst other factors increasing the likelihood of misdiagnosis.

Nonetheless Mr Justice Kerr found that Dr Goderya had breached her duty of care. The expert evidence demonstrated unequivocally that:

“…the slides showed, among other more equivocal features, the following features which were not consistent with diagnosis of a benign ulcer: (i) an atypical lentiginous junctional proliferation; (ii) atypical melanocytic cells in the epidermis; and (iii) atypical spindle and epithelioid cells with some epithelioid cells in the dermis.”

So, whilst a generally competent medical professional might have missed the melanoma, it is not right to say that the same generally competent individual would be competent on this particular occasion in arriving at the misdiagnosis.

This decision was made by Mr Justice Kerr without reference to the usual Bolam responsible body of medical opinion, but with the Penney test in mind, assessing the medical expert evidence as it appeared before the Court.

So keep a wary eye – the law is never as settled as it seems.