Differentiating negligent standards of care in diagnosis (12 January 2022)

Summary

Diagnosis lies at the heart of the medical encounter, yet it has received much less attention than treatment. It is widely assumed that negligent diagnosis claims should be governed by the Bolam test, but in this paper, Liddell et al. demonstrate that this is not always the case.

Content

In this paper, Liddell et al. disaggregate the diagnostic process into three different acts: forming the diagnosis, communicating it to the patient, and recording it. Second, they consider alternatives to Bolam for defining negligence, including less deferential profession-led standards, patient-led standards, and even a reasonable person standard. Third, bringing together these distinctions—within the diagnostic process, and between standards of care—they reveal the unappreciated complexity of negligent diagnosis.

Analysing the standard of care that might apply to the three different acts in the diagnostic process, the authors identify reasons to think that Montgomery should apply to the communication of a diagnosis. They argue that even in areas where the law is well-established, such as the application of Bolam to the formation of a diagnosis, challenging questions arise that require further attention. Throughout, the framework and analysis that we develop have significant implications for a set of negligence cases, as well as for medical education, clinical guidelines, and patient care.