Manning (Executor of the Estate of Jane Louise Manning Deceased) v King's College Hospital NHS Trust

In clinical negligence claims involving diagnostic pathology, the Bolam standard remains applicable, but expert evidence must withstand logical analysis. A pathologist investigating possible recurrent carcinoma must take reasonable steps to exclude malignancy. Where suspicious features leave a real residual doubt, the pathologist must alert the treating clinician and should take appropriate further steps, including seeking a second opinion or recommending a further biopsy where appropriate.

The court must distinguish factual findings about what a specimen shows from evaluative judgments about the standard of care. On causation, it is sufficient to establish that competent reporting would probably have led to further investigation, diagnosis, curative treatment and survival.

The claimant, suing as executor and on behalf of dependants, alleged that the defendant Trust was liable for negligent pathology and clinical treatment of Jane Manning following radiotherapy for tongue cancer.

The Trust admitted negligent misdiagnosis of biopsies taken in February, June and August 2001, but the claimant accepted that the resulting loss of survival prospects could not found substantial damages under Gregg v Scott because the prospects of survival remained below 50 per cent.

The principal issues were whether the reporting of biopsies taken in September 1995 and December 1996 fell below the required standard, whether competent reporting would have led to further biopsy, whether carcinoma was then present, and whether earlier treatment would probably have resulted in survival.

1. Applicable standard. The court applied the Bolam standard, subject to the logical-analysis qualification in Bolitho. The court must make its own findings of fact about what the slides show. It must then decide whether the conduct met the standard of the reasonably competent specialist at the relevant time.
2. September 1995 biopsy. The biopsy contained suspicious features which could not safely be explained away on the H&E section alone. Dr Harrison was negligent in failing to describe those features, failing to alert Professor Langdon that carcinoma could not be excluded, failing to seek a second opinion, failing to perform immunostaining and failing to recommend further biopsy unless contraindicated. The failure to cut further levels was not proved.
3. December 1996 biopsy. The biopsy contained highly suspicious features. Although Dr Harrison performed immunostaining, the possibility of false-negative staining meant that he could not safely give an unqualified benign diagnosis. He was negligent in failing to communicate his residual doubt, seek a second opinion and recommend further biopsy. Negligence in failing to use a larger panel of stains or to cut multiple levels was not proved.
4. Causation. Had the reports properly communicated the unresolved suspicion, Professor Langdon would probably have performed further and deeper biopsy. On the balance of probabilities, carcinoma was present in both 1995 and 1996 and would have been detected. Salvage surgery would probably have been undertaken and would have resulted in survival. The 2001 tumour was a recurrence or persistence of the original carcinoma, not a new radiogenic primary.
5. Disposition. The claimant was entitled to damages for bereavement and dependency under the Fatal Accidents Act 1976, and for the deceased’s pain, suffering and loss of amenity under the Law Reform (Miscellaneous Provisions) Act 1934. Quantum was reserved for a separate judgment.