“Bolam” tested again: this time by a sea urchin!

The recent case of Muller v Kings College Hospital NHS Foundation Trust, whilst not changing the law in relation to the appropriate standard of care, brings into question whether the traditional “Bolam” test is suitable for cases of pure diagnosis error.

The facts

Mr Muller was on holiday in Cyprus in July 2011 when he recalled injuring his left foot at some point whilst bathing in the sea. At various points throughout the case the injury was attributed to either stepping on a sea urchin or scraping his foot on a rock: in reality, no one quite knew the cause of the injury. He sought advice from a nurse in Cyprus and was told to see his GP in England should the wound not heal.

The wound did not heal so, Mr Muller went to accident and emergency as pus was beginning to ooze from the wound. He saw his GP in August who believed the wound was beginning to heal but eventually, even with antibiotics, matters came to a head in November and he was investigated by the dermatological team at Orpington Hospital. Dr Karen Watson, the treating dermatologist, performed a small punch biopsy which was sent for histological examination. A punch biopsy is a technique where by a circular blade is rotated into the skin through the subcutaneous fat, obtaining a cylindrical specimen. This ensures that the full thickness of skin is obtained for histological examination. The punch biopsy was then sent to Dr Goderya for histological examination.

Dr Goderya reported on the sample on the same day indicating that she did not detect a malignant melanoma. It is important to note that often the purpose of punch biopsy is to detect potentially cancerous cells and therefore, Dr Goderya should have been actively seeking any possible signs. Unfortunately by March 2012 Mr Muller’s condition had materially worsened and the wound had deteriorated further and was very painful. He was seen by the plastic surgery team in May 2012 who recommended excision under general anaesthetic with a biopsy to be taken for histological examination. The excision that was then performed in July was an “incomplete” excision as it did not include a margin of 2cm around the wound which would be standard practice for any site which was considered to be cancerous. This decision was likely based on Dr Goderya’s findings.

The histological report which came back from the excision biopsy showed a malignant melanoma of the ALM type. An acral lentiginous melanoma (ALM) is a type of melanoma which arises on an individual’s palms or soles: it is mostly found on the soles of the feet. Mr Muller returned to hospital on 25 July 2012 and was given the bad news about his cancer, told that it was not diagnosed in November 2011 and there was now a chance that it could have spread to other parts of his body. The spread of the cancer was confirmed in August 2012 when he was told it had spread to two of the lymph nodes. Fortunately these secondary metastases were removed and his six monthly scans have shown him to be cancer free since then.

The case

Mr Muller brought a claim against the Trust on the basis that his cancer should have been diagnosed sooner and that, if it had been, he would have been spared pain, suffering and loss of amenity, various expenses and loss of earnings.

What is interesting about this case is the difference between the parties as to the appropriate standard of care to be applied.

The Trust argued that this is a standard “Bolam” case: namely, was Dr Goderya, when diagnosing an ulcer and not a malignant melanoma, 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. They relied on the expert opinion of Dr Foria that the misdiagnosis was not negligent and could easily be made by a histopathologist acting with reasonable competence and that the Claimant’s expert’s view should not be preferred and Dr Foira’s opinion was sufficient to exonerate Dr Goderya from the charge of negligence.

The Claimant argued this was not a straight “Bolam” case and instead authority should be drawn from Penney v East Kent Health Authority whereby the court should determine the objective facts about what pathological features were on the slides in November 2011 (which both sides agreed showed the a malignant melanoma) and then decide for itself, in light of each of the experts’ opinions, whether the misdiagnosis was made without the use of reasonable skill and care. The court could not abdicate its responsibility to resolve the conflict between the experts by resorting to the Bolam notion of “responsible body of medical opinion”.

The decision

Mr Justice Kerr had to ultimately conclude that he was bound by precedent and he had to approach the issue by reference to a possible invocation of the Bolitho exception. In applying that analysis he found for the Claimant and Mr Muller was awarded £16,500 plus interest in damages.

Although the overall result has not changed the law what is interesting is Mr Justice Kerr’s reasoning up until the point of judgment. His reasoning up until that point indicates that he saw the logic in cases where there is an error in diagnosis, and there therefore there is no weighing up of the risks and/or benefits that two experts expressing opposing opinions cannot both be right. Consequently, it is the perfect matter for a decision of the court (see paragraph 75 of the judgment).

For my own part I can appreciate the logic of such a conclusion. When a clinician is looking at a scan or performing a diagnostic test there is no question as to what is physically there. Assuming that the test is done correctly it does not matter, theoretically, how many times that scan or test is performed the results will be the same because what is there will always be there until treatment is received or the condition progresses.

The question of “what was on the scan in November” is surely a question of objective fact and one which, whatever expert looks at it, will only have one answer. Furthermore, as a screener or a radiologist your job is arguably to first report on what you see. The next step once you have made that initial factual observation is to either propose a diagnosis or pass it on to someone else to interpret and then diagnose.

For my own part I can see how fitting the Bolam analysis of “what a reasonably competent clinician” would see on a slide which everyone agrees shows signs of cancer is difficult. Judge Peppitt QC in Penney put is most succinctly when he said that everyone agrees the screener got the answer wrong; therefore what the Court has to determine is whether that wrong answer was excusable. That kind of determination is one which the Court should properly make as there is no “right” answer.

I think this is therefore a case of “watch this space” when it comes to the appropriate standard of care in pure diagnosis cases and Muller may be a foreshadow of a further exemption to the Bolam standard of care.

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