LML is pleased to announce the publication of "The Frontiers of Medical Negligence and Diagnosis: An Interview-Based Analysis", co-authored by LML’s Professor Kathy Liddell and Associate-Professor Jeffrey Skopek with Isabelle Le Gallez and Dr Zoë Fritz.
The article delves into the critical issue of medical diagnosis errors and the legal implications of such mistakes in the field of medical negligence. It explores how the various dimensions of diagnosis - formation, communication, and recording - have traditionally been bundled together in law and medicine. The authors argue that distinguishing between these dimensions is essential, as each raises unique legal questions that warrant separate analysis.
The article challenges the assumption that all three dimensions of diagnosis should be governed by the Bolamstandard. According to the Bolam standard, medical practice is not negligent if it is accepted by a body of medical practitioners (unless the court decides that the practice is illogical). This standard is considered quite deferential to the medical profession. The authors present empirical research based on interviews with medical negligence lawyers, examining two specific questions:
- Instead of Bolam, should the Montgomery standard, which emphasizes patient autonomy and informed consent, apply to the communication of alternative diagnoses? Depending on the circumstances, this might oblige doctors to tell patients about possible alternative diagnoses where the particular patient, or a reasonable patient, would consider the information important.
- Should Bolam be overruled in cases of ‘pure diagnosis’, where no treatment or advice is given? Some people argue that ‘pure diagnosis’ is either right or wrong, and does not call for medical judgment. Therefore, rather than the court deferring to a view held by a body of medical practitioners, the court should make its own assessment of whether the doctor’s conduct was reasonable.
The authors found that the use of a single standard for assessing medical negligence does not adequately capture the complexities of the diagnostic process and argue that more attention by academics and the courts is needed to improve normative foundations of the law and to provide clarity to doctors and patients about their rights and duties.
You can access the article via the Medical Law Review's website here.