Marking the boundaries of Bolam: Muller v King’s College Hospital [2017] EWHC 128 (QB)

April 20, 2017

By Gareth Shires

Kerr J’s judgment handed down on 2nd February arose out of a misdiagnosis of a malignant melanoma.  The claimant had a wound in his foot and in November 2011 a biopsy was undertaken.  A histopathologist diagnosed a non-malignant ulcer.  Unfortunately, the wound failed to heal and the claimant underwent surgery in his foot in July 2012 in the form of a narrow local excision. A further biopsy was then taken, which revealed a malignant melanoma.  In August 2012 the claimant underwent a wide local excision to remove the tumour and also underwent a sentinel lymph node biopsy, which revealed that the cancer had spread to the lymph nodes.  The claimant underwent lymph node dissection and an operation to repair the tissue in his foot.

The question for the trial judge was whether the histopathologist’s failure to diagnose the melanoma in November 2011 was a breach of her duty to exercise reasonable skill and care.

The Trust’s position was that the standard Bolam test should be applied: namely, whether the histopathologist when diagnosing an ulcer had acted in accordance with a reasonable body of competent professionals.  In support of this position, the Trust called an expert who confirmed that the misdiagnosis had not been negligent but was one that could easily have been made by a histopathologist acting with reasonable care and skill.  Given this evidence, the Trust submitted that it had satisfied the Bolam test.

The claimant argued that Bolam test as insufficient and relied on Penny v East Kent Health Authority [2000] Lloyd’s Rep. Med 41.  This case had similar facts and was, in the words of Kerr J, a ‘pure diagnosis case’.  In this case, screeners of cervical smears tests pronounced them to be negative but the claimants then went on to develop cervical cancer.  It was argued that this case showed that the court must determine the objective facts about what pathological features were there to be seen on the slides 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.   It was argued that: ‘The court could not abdicate its responsibility to resolve the conflict of expert opinion by resorting to the Bolam– derived notion of a respectable body of medical opinion.  Effectively, the claimant argued that Bolam did not apply or, at least, should not be strictly applied.

Kerr J broadly agreed with the claimant’s argument.  He took the view that the conventional Bolam approach did not sufficiently differentiate between two types of cases: the ‘pure diagnosis’ case and the ‘pure treatment’ case.  The former type of case was a case where a patient’s condition is unknown and what is alleged to be negligent is the diagnosis of the condition with no decision being made as to treatment or further diagnostic procedures.  In such a case, ‘the diagnosis is either right or wrong and, if wrong, either negligently so or not’.  The latter type of case was where the nature of a patient’s condition was known but the alleged negligence consisted of a decision to treat a condition in a particular manner.  This type of case was the ‘paradigm of the application of the Bolam test’.

Despite Kerr J’s view that the Bolam approach did not sufficiently differentiate between the two types of cases set out above, he noted with some regret that the Court of Appeal in Penny had failed to endorse the views of the judge at first instance that the Bolam principle did not apply because there was no issue of whether a particular course of conduct was acceptable medical practice.  In Penny, the Court of Appeal had accepted the alternative finding of the judge at first instance that the defence experts’ evidence should be rejected by applying the Bolitho exception, i.e that it did not stand up to logical analysis.

Due to the finding of the Court of Appeal in Penny, Kerr J drew the conclusion ‘with some regret’ that even in ‘pure diagnosis’ cases, 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’.

As applied to the facts of the case, Kerr J found that there was melanoma present on the slides from the November 2011 biopsy.  He also found that the defendant’s expert had applied a lower standard or care when considering the case because he had merely stated that a pathologist who was, in general, competent, might have missed the malignancy.  He was not giving evidence about a body of opinion within the medical profession, but was expressing his own view that the error was excusable.  This was applying a lower standard than that required by law.  The defendant expert’s reasoning and conclusion were not defensible and fell within the Bolitho exception.

This case demonstrates that although Bolam remains good law, its scope is becoming curtailed.  As can be seen from the above analysis, Kerr J spent a considerable amount of time attempting to escape the constraints of Bolam before accepting that cases must still be considered through the prism of Bolitho exception rather than abandoning Bolam altogether.  However, he did confirm that a court cannot hide behind Bolam and fail to analyse the contradictory evidence of competing experts in order to prefer, in relevant cases, one view to another.