Ismail v Joyce

In a clinical-negligence claim, a GP who is told that a patient has a persistent cough and is sweating at night must make further enquiries about the night sweats. Where those enquiries would reveal drenching night sweats, the combination with a persistent cough and a high local incidence of tuberculosis may make it mandatory to arrange a chest x-ray or require a specific review within a short period.

General safety-netting advice is insufficient where the symptoms create a real concern about tuberculosis or another serious condition. The question remains whether no reasonably competent GP would have acted differently, applying the Bolam test.

The claimant brought a clinical-negligence claim against her GP. She alleged that, during a consultation on 10 August 2011, he should have referred her for a chest x-ray because she had symptoms indicating tuberculosis. Tuberculosis was later diagnosed after it had spread to the brain and spinal cord.

The trial was confined to breach of duty. The court had to determine what symptoms the claimant had reported, what further enquiries a reasonably competent GP should have made, and whether the failure to arrange an x-ray or specific follow-up advice amounted to breach.

1. Evidence. The court assessed the claimant’s and her sister’s recollections against the contemporary medical records and the inherent fallibility of memory. A missing record did not conclusively establish that a symptom had not been reported, but the records and the doctors’ usual practice were important considerations.
2. Factual findings. The claimant had experienced drenching night sweats for at least a week before the consultation. Dr Joyce recorded that she was sweaty at night. The court found that she had a persistent cough of approximately three to four weeks’ duration, but rejected the evidence that blood in her saliva had been reported to the doctors.
3. Clinical standard. The experts agreed that a GP told of sweating at night should ask about its nature, extent and duration. If drenching night sweats had been elicited, their combination with the persistent cough and the high incidence of tuberculosis in Newham would have made further action mandatory.
4. Breach. A reasonably competent GP would have either provided a chest x-ray request or instructed the claimant to return within about seven days. General advice to return if symptoms did not improve was inadequate. Dr Joyce’s omission to ask further about the night sweats was therefore negligent under the Bolam test.
5. The claim succeeded on that narrow breach issue. Causation and quantum were not determined and were left for further directions if required.

The judgment records that Master Yoxall directed that breach of duty be tried as a preliminary issue. The High Court then determined that issue at first instance.