Differentiating Negligent Standards of Care in Diagnosis

Abstract

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 we demonstrate that this is not always the case. First, we disaggregate the diagnostic process into three different acts: forming the diagnosis, communicating it to the patient, and recording it. Second, we 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—we reveal the unappreciated complexity of negligent diagnosis. Analysing the standard of care that might apply to the three different acts in the diagnostic process, we identify reasons to think that Montgomery should apply to the communication of a diagnosis. We also 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.

Ethical and legal considerations influencing human involvement in the implementation of artificial intelligence in a clinical pathway: A multi-stakeholder perspective

“…Traditionally, standards of care relating to diagnosis are ultimately the prerogative of those setting and implementing medical standards under the common law. However, such cases have entered murkier waters in recent years, where a handful of high court cases have sought to redraw the boundaries around the seminal tests for negligence by distinguishing between negligent treatment cases and negligent diagnosis and have tried to question if those tests apply to the latter ( 27 , 29 – 31 ). For the time being, high courts have continued to apply these tests to both diagnosis and treatment decisions.…”

How and why do doctors communicate diagnostic uncertainty: An experimental vignette study

“…21 Legal researchers have contemplated whether doctors have a duty to disclose diagnostic uncertainty. 5 Case law provides differing perspectives.…”

“…In the United States, Jandre v. Physicians Insurance Company of Wisconsin (2012) established that a physician could have a duty to disclose diagnostic uncertainty under the 'reasonable patient' standard. 5 In the United Kingdom, Montgomery versus Lanarkshire (2015) established that doctors are legally required to disclose 'material risks' associated with different treatment options, 5 but it is unclear if this duty extends to disclosing the differential diagnosis or diagnostic uncertainty. 27 In summary, the extent to which doctors should communicate diagnostic uncertainty to patients has been recently considered by both legal and ethical scholars.…”

“…This process is nonlinear and dynamic, as is the uncertainty within it. 1 , 2 Figure 1 (developed using a combination of the authors' clinical experience and review of relevant literature) 1 , 2 , 3 , 4 , 5 , 6 provides an overview of the diagnostic process.…”

“…Legal researchers have contemplated whether doctors have a duty to disclose diagnostic uncertainty. 5 Case law provides differing perspectives. In the United States, Jandre v. Physicians Insurance Company of Wisconsin (2012) established that a physician could have a duty to disclose diagnostic uncertainty under the ‘reasonable patient' standard.…”