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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Penney & Ors v East Kent Health Authority  EWCA Civ 3005 (16 November 1999)
Cite as: (2000) 55 BMLR 63,  EWCA Civ 3005,  PNLR 323,  Lloyds Rep Med 41,  Lloyd's Rep Med 41
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE PEPPITT QC
(SITTING AS A HIGH COURT JUDGE)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAY
LADY JUSTICE HALE
| SANDRA PENNEY
|- v -
|EAST KENT HEALTH AUTHORITY
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040 Fax No 0171 831 8838
Official Shorthand Writers to the Court)
Mr James Badenoch QC and Mr Giles Eyre (Instructed by Messrs Harman & Harman, Canterbury CT2 8BP for the Respondent)
Crown Copyright ©
Tuesday, 16 November 1999
LORD WOOLF MR :
Background to the Appeal
|Inadequate||Insufficient or poorly visualised cells|
|Negative||No abnormal cells seen|
|Borderline changes||Changes of uncertain significance|
|Mild dyskaryosis||Mild neoplastic squamous changes usually CIN 1.|
|Glandular neoplasia||Severe glandular cell changes possible adenocarcinoma|
The classification also deals with three more categories of increasingly severe dyskaryosis, namely CIN2 and 3 and invasive squamous carcinoma. The Greek word dyskaryosis refers to an abnormal nucleus.
The Wells Report
"I cannot simply rely upon the inquiry findings as evidence specifically referable to the cases which I have to consider. But just as evidence of a well-ordered and efficient laboratory could properly have been adduced by the hospital as the background against which the plaintiffs' allegations should be judged so to the same extent (but no more) I am entitled to have regard to the very different findings of the committee."
"The standard which I have to apply is that of a reasonably competent screener exercising reasonable care at the time when the screening took place. I must ignore any advances in screening practice which have occurred since the relevant events. I must also put out of my mind when considering the extent of the screeners' duty of care the fact that all three [claimants] subsequently developed carcinoma.
Equally importantly I must bear constantly in mind that in cases where an exercise of judgment is called for, the fact that with the benefit of hindsight that judgment was exercised wrongly is not itself proof of negligence."
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men ... The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care."
"... that a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to another: but that is no basis for a conclusion of negligence." (at p.638)
"In my view the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendants' treatment or diagnosis accorded with sound medical practice(.. the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular in cases involving, as they often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
What was to be seen in the slides?
At the relevant time could a screener exercising reasonable care fail to see what was on the slide?
Could a reasonably competent screener, aware of what a screener exercising reasonable care would observe on the slide, treat the slide as negative?
"(1) The preliminary issue to be determined by the court is, can pertussis vaccine cause permanent brain damage in young children? ... The burden of proof rests on the plaintiff and the standard of proof is that of the balance of probability. It must be shown that it is more likely than not that the vaccine can cause permanent brain damage.
(2) Medical and expert opinion is deeply divided on the issue. The question has to be determined on all the evidence in the case, which is primarily the oral evidence of the witnesses tested in cross examination. The court cannot simply accept the opinion or belief of a witness, however eminent, that such is or is not the case. The basis for the opinion must be examined, tested against other evidence, for consistency and logic and the validity of the reasoning.
(3) The question is not answered by showing that there is a respectable and responsible body of medical opinion that the vaccine can, albeit rarely, cause permanent brain damage, or that this view may be more widely held than the contrary. The opinion of others not called to give evidence is not admissible to prove the truth of the opinion. The works of learned and qualified authors form part of the general corpus of medical and scientific learning on the subject and can be relied upon and adopted by suitably qualified experts. These experts may have their opinions tested in the light of the literature."
The Appellants' Case
Mrs Penney's Slide
"Four or five inflamed groups of endocervical cells showing changes in nuclear and cytoplasmic morphology. It was not a normal slide."
"The issue which I have to decide therefore is whether in the light of what he saw the cytoscreener was negligent in failing to classify the smear as at least borderline. On this issue I prefer the views of Professors Cotton and Krausz. The slide was difficult to interpret even by a Consultant Pathologist. But the abnormality was there to be seen. Whether that abnormality was precancerous or reactive and thus benign it was not for the cytoscreener to decide. His function was to observe and to record. He had neither the knowledge nor the experience to diagnose. In my judgment no competent cytoscreener would have dismissed the possibility that the abnormality on this smear was precancerous. Accordingly if one applies the "absolute confidence" test propounded by Dr Hudson this smear had to be classified at least borderline. Anything less would place the patient in danger.
I have already set out the conflicting views of Doctors Hudson and Boon. In so far as the import of those views is that no cytoscreener could have been expected in 1993 or later to say affirmatively whether the abnormality on the smear was reactive or precancerous I accept them. But that is not the test which both parties agree that I should apply. I have to consider whether the reasonably competent cytoscreener in 1993 could properly have dismissed the possibility that the abnormality was precancerous. I have already indicated that in my judgment he could not. On the smear were four or five abnormal groups of endocervical cells which I think on the balance of probability were precancerous. No-one who gave evidence before me sought to suggest how a cytoscreener in 1993 might have been able competently to distinguish between precancerous and reactive changes. Indeed the evidence was to the contrary - that the two are often indistinguishable. In those circumstances I consider that the cytoscreener was wrong to classify this smear as anything less than borderline."
"I should say at the outset that I find the Bolam principle ill-fitting to the facts of Mrs Penney's case. In Bolam and the cases which followed the court was concerned with an aspect of professional conduct of which some members of the profession, but not others, disapproved. In other words in those cases the defendants' experts sought to justify as an acceptable professional practice what the defendant did or did not do. Here the position is different. All the experts agree that the cytoscreener was wrong. No question of acceptable practice was involved. The issue here to which the experts' evidence was directed was whether the cytoscreeners conduct though wrong, was excusable. This seems to me to fall outside the Bolam Principle.
But if I am wrong about this I remain of the view that Bolam does not assist the defendants. For I do not consider that the evidence of Drs Hudson and Boon stands up to the logical analysis as that phrase was used by Lord Browne-Wilkinson in Bolitho at p.1160 c-d. This is not to disparage the evidence of either. It is rather that in my judgment their opinions cannot stand with 'the absolute confidence' test which Dr Hudson herself propounded with the agreement of the other experts. Here were admitted abnormalities which, to put if most favourably to the cytoscreener, he could not positively have said were not pre-cancerous. Neither Dr Hudson nor Dr Boon suggested that the cytoscreener had the ability to draw any such distinction, still less how they should apply it. It seems to me therefore that having regard to the potentially disastrous consequences of a mistaken classification a reasonably competent cytoscreener should have classified the smear as borderline even though that classification might have caused the patient short-term distress and perhaps the discomfort and embarrassment of a further smear. I cannot believe that any woman would not be prepared to put up with both if the alternative was an undiagnosed potential carcinoma.
It is for these reasons that I have preferred the evidence of Professors Cotton and Krausz to Drs Hudson and Boon in finding as I do that the defendants were negligent and in breach of the duty which they owed to Mrs Penney in failing by their cytoscreener to classify her slide in January 1993 as at least borderline."
"Certainly if they have doubt they must pass it on to a checker, and when they are training they have doubts all the time and discuss this with their trainer but once they have passed their exam they are expected to make a certain number of decisions themselves and indeed quite a lot of decisions (".
"Is that the test, anything short of absolute confidence within the normal range to pass on?"
"Yes, my Lord".
"... may make the final decision on and report negative and inadequate smears. If there is any doubt or if abnormalities are detected, the slide will be passed on to a technical "checker" ..."
The Court of Appeal's approach to the judge's findings as to expert evidence
"In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only vary rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reason. The advantages enjoyed by the trial judge are great indeed, but they do not absolve the Court of Appeal from weighing, considering and comparing the evidence in the light of his findings, a task made longer but easier by possession of a verbatim transcript usually (as here) denied to the trial judge." (p.77/78)
The examination of the slides at the Krausz Laboratory
This judgment only relates to the four slides which were the subject of the claims. It is critical to the findings of the judge and the conclusions of this court that the judge decided that the slides contained obvious abnormalities which meant that their assessment as negative was negligent.
If the abnormalities observable on the slides had been different, the decision of the judge could have been different. This case does not decide that negligence by a cytoscreener can be established by showing that someone who has had a slide labelled negative unfortunately develops cervical cancer. It was not in dispute in this case that cervical cancer can develop even though a relatively recent slide is properly labelled negative. The fact that in the majority of cases this does not happen does not mean that it cannot happen even though a high degree of care is exercised.
The judge was not rejecting the general approach of the Authority's experts and in particular that of Dr Hudson. He was finding that because of the observable abnormalities on the slides the slides should not have been labelled negative in order to comply with the approach (the absolute confidence approach) that those experts supported.
We dismiss the appeal.
Order: Appeal dismissed with costs. Leave to appeal to the House of Lords refused.