Abstract
Miss Morris claimed damages from the trust for clinical negligence on the basis that two radiologists, Drs Helpert and Alner, had failed to detect and report an abnormality in her left lacrimal gland. She had been admitted to Selly Oak Hospital on 9 October 2001 with sudden, severe headache and photophobia. Clinically the diagnosis was migraine, but taking a cautious approach the clinicians asked for a CT head scan. The radiologists were given details of the sudden onset headache, described as ‘worst pain ever’, and asked to exclude subarachnoid haemorrhage.
A CT scan was performed shortly afterwards and provisionally reported by Dr Helpert, a second-year registrar in radiology. He reviewed the 36 images produced and concluded that there was no evidence of intracranial haemorrhage. The following morning the final report on the CT scan was given by Dr Alner, consultant radiologist. He confirmed Dr Helpert's view and concluded the scan was ‘normal’.
Some three years later the Clamant was diagnosed with a lacrimal gland tumour and ultimately required removal of her eye, much of the orbit and part of her forehead. She was left with substantial cosmetic deformity. Sadly, she has now suffered tumour recurrence and her prognosis is very poor. With the benefit of hindsight, disproportion in the size of the lacrimal glands can be seen on one of the 36 images from the CT scan taken in October 2001.
While it was accepted by the Claimant that earlier detection of the tumour would not have improved her prognosis, it was argued that it would have led to less radical treatment and avoided her substantial cosmetic disability. This was admitted by the Trust and damages had been agreed at £125,000 subject to the Claimant establishing breach of duty.
The only issue the court was asked to determine was whether or not the radiologists in question were in breach for failing to detect and report the lacrimal gland abnormality. The Claimant was supported by a report from Dr Nelson, consultant neuroradiologist of Leeds. In short, his view was that the abnormality was clearly there to be seen and should have been detected and reported by any radiologist sufficiently experienced to report CT head scans.
The Defendant relied upon Dr Barry, a consultant radiologist in District General Hospital (DGH) practice. He gave opinion that a lacrimal gland tumour was very rare pathology, which was outside the main area of interest on the scan. In his view the clinicians could not be criticized for failing to spot it. He reported that he had shown the imaging blind to five consultant colleagues with the information that had been available to the reporting radiologists. None of his colleagues had diagnosed the abnormality either.
Having heard the evidence, HHJ Worster concluded that:
Impressive as he was as a witness, Dr Nelson was a ‘super-specialist’ applying too high a standard of care to the treating radiologists in this case; There were logical reasons why the abnormality was missed: it was very rare pathology which was ‘low on the list’ and outside the area of principal interest on the CT scan, which had been performed to look for an entirely different condition; The view of Dr Barry was strongly corroborated by the blind test he had performed with his five consultant colleagues. This was very strong evidence that the standard of care offered did not fall below a reasonable standard.
Consequently the Claimant's case was dismissed and costs were awarded to the Defendant. As the Claimant was funded by a CFA with supportive insurance, costs will be recoverable.
William Pusey (instructed by Alsters Kelly) appeared for the Claimant. Richard Furniss (instructed by Bevan Brittan) appeared for the Trust.
Comment
The allegations advanced arguably constituted a counsel of perfection. Radiologists at a DGH are not, under the Bolam test, to be judged by the standards of a specialist at a tertiary referral centre, but rather by those of a reasonably competent radiologist at a DGH at the relevant time. The fact that this was a very rare tumour, apparent on close inspection of just one out of 36 images, was significant in the judge's view. He was also clearly influenced by the blind test conducted by the expert radiologist called on behalf of the Trust.