The frontiers of medical negligence and diagnosis: an interview-based analysis

Why it matters

Errors in medical diagnosis can be devastating for patients. As part of our work we are looking at some of the ways in which law and medicine address three dimensions of the diagnosis process:

• how the diagnosis is made
• how it is communicated to the patient
• how it is recorded

Each dimension has its own complex legal questions that need analysis and answers.

One key question is how careful doctors need to be during the formation, communication, and recording of diagnoses. In other words, how does the law define reasonable conduct for doctors during diagnosis? This is known as the legal standard of care.

It had been assumed that all three aspects of diagnosis were governed by the Bolam/Bolitho standard. This states that doctors cannot be deemed negligent if a similar group of other doctors would have acted the same way, unless a court finds that they cannot withstand logical scrutiny. This is known as a ‘profession-led’ standard, where the actions of a particular doctor are essentially being judged against what their peers consider reasonable. However, there are areas of controversy where courts are being encouraged to move away from a profession-led standard.

In the Supreme Court, case of Montgomery -v- Lanarkshire, it was judged that doctors must  ‘take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments’’. This represents a significant shift away from the standards presented by Bolam/Bolitho in relation to treatment decisions. We asked whether this judgement applied to diagnosis as well. Do doctors have a duty to inform patients of alternative diagnoses that they are considering? Should doctors tell patients about any uncertainties in their suggested diagnosis if the patient would want to know?

Our approach

We interviewed barristers and solicitors for their insight into how legal cases regarding diagnosis are being resolved. Often, cases like these are dealt with outside of court, so interviews added to what is known from case law.

Our interviews aimed to gauge legal professionals’ perspectives on the standards applicable to the formation, communication and recording of diagnoses and the future direction of the law, focusing on two questions that emerged:

1. whether Montgomery -v- Lanarkshire should apply to the communication of alternative diagnoses, and
2. whether Bolam/Bolitho should not apply in situations that some people call ‘pure diagnosis’ cases – i.e. cases that relate to diagnosis alone, and not treatment.

What we found

Most of the people we spoke to thought that the Montgomery -v- Lanarkshire standard should apply to communicating alternative diagnoses because patients need to be informed and involved in the diagnostic process. Even though this would add more burdens on doctors and the healthcare system, they felt it would be wrong to keep patients in the dark. From their legal perspective, interviewees disagreed about whether there could be reasonable differences of professional opinion in the formation of a diagnosis. Some thought diagnosis is simply right or wrong, involving no weighing up of risks and benefits. But others thought that most diagnoses (including those described as pure diagnosis) are open to interpretation and the possibility for reasonable disagreement.

Frustration with the Bolam/Bolitho standard was a common thread in the interviews, where respondents criticised its paternalistic approach. It was also criticised for being overly deferential to the medical profession. Our interviews confirmed that these issues were at the forefront of medical negligence law, and likely to prompt legal developments. Long held assumptions are being challenged, and this is shaping the future directions that medical negligence law is likely to take.