Through the lens of a Radiologist

Medical Protection represented a consultant neuroradiologist where it was alleged that Dr B negligently interpreted an MRI scan. Peter J Mordecai, claims manager at Medical Protection, explores the issues in this type of claim. Medical Protection acknowledges the contribution to this article from Raja, Darryl & Loh.

The Law
Whilst the Law addressed below is UK legal precedent, the Malaysian Judiciary continue to consider such precedent when making legal determinations. It would therefore be highly likely that the Malaysian Judiciary would follow the legal principles set down by the UK Common Law.

The Law regarding claims involving misdiagnosis of radiology or histopathology (so called ‘pure diagnostic claims’) comes from the case of Penney and Others v East Kent Health Authority [2000] Lloyds Rep Med 41. In this case Lord Woolf MR held that there was a three-stage legal test that had to be used when assessing whether there was a breach of duty:

1. What was to be seen in the slides?

2. At the relevant time could a [Doctor] exercising reasonable care fail to see what was on the slide?

3. Could a reasonably competent [Doctor], aware of what a [Doctor] exercising reasonable care would observe on the slide, treat the slide as negative?

The first step in the legal test is a question of fact and hindsight whilst the second and third steps being the Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 legal test.

There have been various arguments raised regarding how far the Bolam Test should apply to pure diagnostic claims.

However, following the recent claim of Brady v Southend University Hospital NHS Foundation Trust [2020] EWHC 158, it has been reaffirmed that the current status of the law is that the Bolam test will apply to pure diagnostic claims.

Case Study
Patient A presented to the hospital complaining of head pain radiating behind the right eye, drooping eyelid, and nausea. He was seen by a neurologist who noted there was ‘no focal neurological deficit’ and referred the patient to Medical Protection’s consultant neuroradiologist member, Dr B, for an MRI scan.

The referral was marked as urgent but no time frame was provided for when the neurologist was expecting the report. In addition, the referral form made a differential diagnosis of cluster headache and did not mention the drooping eyelid.

The patient underwent the MRI scan in the afternoon and Dr B did not find any abnormalities upon reviewing the images. However, due to Dr B’s work schedule, he was unable to formally report on this until 2 days later at which point he noted the imaging was suggestive of a thrombosis. Unfortunately, the diagnosis was made too late and the patient had already been admitted with a stroke.

Medical Protection proceeded to investigate the claim and, by applying the Penney legal test, were unable to defend the claim because:
1. Was something to be seen in the slides? – Yes, as our member identified this 2 days later.

2. At the relevant time could a [Doctor] exercising reasonable care fail to see what was on the slide? – This was assessed by the claims manager and the medicolegal consultant as being no, especially because of what the member identified 2 days later.

3. Could a reasonably competent [Doctor], aware of what a [Doctor] exercising reasonable care would observe on the slide, treat the slide as negative? This was again assessed by the claims manager and the medicolegal consultant as being no.

As a result, liability had to be conceded and this led to a multimillion pound settlement because the claimant was a young high earning individual who became severely disabled.

Learning Points
The consequences of misdiagnosing radiology or histopathology scans can be severe. However, there are steps that can be taken to minimize the risks:
1. What information is being contained in the referral form? – While the referral form may contain limited information, it provides a start for your investigation.

2. What other information do you have to hand? – If you are able to have a conversation with the patient then consider exploring with them what their symptoms are, so you can focus your review accordingly. In the above case study, the patient had informed the nurse in the radiology department about the drooping eye. There were methods for Dr B to discover the information missing from the referral form.

3. Double check before reporting – Regardless of the contents of the referral form, try to check and review the images and reports at least twice before signing off your report, and to check whether there is any discrepancy between your reading of the images and the patient’s clinical history.

4. Don’t be afraid to pick up the phone – If you require more information or want to discuss your findings, then do not be afraid to discuss this with the referring clinician. If there are any important or critical radiological findings, which would lead to potentially life-threatening medical condition, do not simply put them into the written report. Always try to follow up with a separate phone call.

5. Remember to document – A common failing we find is that if the Radiologist/Histopathologist has spoken to a clinician or the patient, these discussions are not documented. If you have a discussion, it needs to be added on to your report.

6. Safety netting – Your report is one piece of evidence that the clinician is going to look at, so make sure you include safety netting advice where appropriate. For example, if you are not sure if a lump is cancerous or not, then make sure you highlight this to the referring consultant to take steps to clinically correlate. If the tests may not be enough to rule out a particular condition with serious consequences, it is important to explain in your report, and to recommend further evaluation or follow-up testing if clinically indicated.

7. Differential diagnosis – If there are several potential diagnoses, then make sure you set these out.

When in doubt, contact your medical defence organization for advice.