Brady v Southend University Hospital NHS Foundation Trust

In a medical negligence claim involving radiological diagnosis, the court must distinguish factual findings about what imaging shows from professional judgments about diagnosis, investigation and treatment. Findings about the scan are for the court on the balance of probabilities. Professional conduct is assessed under the Bolam test, subject to the Bolitho requirement that the supporting opinion has a logical and defensible basis. A radiologist may reasonably identify the most likely diagnosis without listing every remote differential diagnosis. Where later imaging creates uncertainty, recommending further investigation and obtaining a specialist second opinion may satisfy the required standard. A biopsy is not mandatory merely because it might establish the correct diagnosis.

The claimant developed actinomycosis after an appendectomy. In August and September 2013, abdominal masses were reported as, or considered consistent with, omental infarction. The claimant later developed a psoas abscess requiring surgery and alleged that negligent reporting and failure to biopsy had caused the resulting injury.

The court considered whether the first and second CT scans were reasonably reported, whether biopsy was mandatory in September 2013, whether biopsy would have confirmed actinomycosis, and whether the defendant’s conduct caused the claimant’s loss.

1. Applicable standard. The court distinguished factual questions from professional judgment. What the CT scans showed, including whether the mass represented infarction or infection, was a question of fact for the court on the balance of probabilities. The assessment of radiologists’ reports, recommendations for further investigation and the surgeon’s conduct was governed by the Bolam test, subject to the logical-basis qualification in Bolitho. The approach in Penny applied to pure diagnosis cases, and the court followed the treatment of that issue in Muller.
2. First scan. With hindsight, the mass was probably an infection. That did not establish negligence. The diagnosis of probable omental infarction had a proper radiological basis and was supported by a responsible body of radiological opinion. The report appropriately expressed the diagnosis as the most likely one. There was no duty to identify infection or malignancy as differential diagnoses where those possibilities were considered sufficiently remote, nor to recommend invasive investigation.
3. Second scan. The enlarged mass, gastric outlet obstruction, abdominal nodularity and colonic encasement created greater uncertainty. Dr Jain’s report was sub-optimal but not misleading. Her discussion with the surgeon raised the relevant possibilities and recommended further urgent investigation, including biopsy.
4. Failure to biopsy. A biopsy was not mandatory. A reasonably competent surgeon could consider the risks of invasive investigation, seek a specialist second opinion and adopt conservative management where omental infarction remained a reasonable possibility and the patient’s symptoms improved. The decision to obtain a second opinion and then discharge the claimant for review fell within the required standard.
5. The claimant proved that an earlier biopsy would probably have revealed infection and prevented the later illness, but failed to establish breach of duty. The claim was dismissed.