With the UK Government announcing at the end of October 2023 that 160 community diagnostic centres will be open by March 2024, it is a burgeoning time for those working in diagnostics. Medical malpractice claims arising from the misreporting of radiology can, however, be costly. Whilst we do not have the data for non-NHS claims, NHS Resolution’s Annual Report and Accounts 2022 to 2023 showed that radiology claims made up 4% of the clinical claims received in 2022/23 (402 claims out of a total of 10,062) and cost 2% of the total value of clinical claims received in 2022/23 (£118,144,000 out of the £5,907,200,000 total value)[1].
In the private sector, Radiologists may have medical malpractice indemnity insurance through the company providing the reporting services or they may be self-employed practitioners required to hold their own indemnity insurance. In any event, the recent case of KJY v University College Hospital NHS Foundation Trust [2023] EWHC 2719 (KB), provides a stark reminder for those providing diagnostic imaging reporting services to consider ‘the whole picture’ and to report any abnormalities (or possible abnormalities) which may not necessarily have been requested by the physicians requesting the imaging.
Background
When the Claimant was one day old, he underwent a series of abdominal x-rays. These x-rays were requested as there was a suspicion of some malrotation (a twisting of the intestines or bowels), causing choking and swallowing problems. The Claimant’s clinical negligence claim arose out of the examination and reporting of those abdominal x-rays, taken when he was 2 and 3 days old. The Claimant was later diagnosed with bilateral development dysplasia of the hips (“DDH”). Whilst the x-rays were ordered for an unrelated issue, the question for the Court was whether, upon consideration of those three x-rays, abnormalities in the alignment of the Claimant’s legs and hips should have been identified.
The x-rays were examined by two radiologists. Whilst neither of them reported any abnormalities of the hips, the Claimant was later diagnosed with DDH at the age of 14 months by a consultant orthopaedic surgeon. As part of the proceedings, both parties instructed expert radiologists who agreed that the x-rays showed malalignment of the hips. However, they disagreed on whether the reporting radiologists should have detected it. These proceedings, therefore, considered whether the reporting radiologists’ failure to identify the DDH shown in the x-rays fell below the acceptable standard of a responsible body of radiologists in 2010.
It was the Claimant’s position that the DDH ought to have been identified as, whilst the x-rays had been requested for an unrelated issue, there was a duty to consider the entire x-ray image and report any abnormality or possible abnormality (and the abnormality, in this case, was obvious). The Defendant asserted that the DDH was too subtle and was only, now, identifiable within the x-rays with the benefit of hindsight. The trial was listed to consider breach of duty only.
Breach of Duty of Care
In cases such as this, where clinicians are exercising their judgment in order to diagnose, differences of opinions can be genuine and acceptable. The defendant would not be negligent if they can show the radiologists acted in accordance with a practice accepted as proper by a responsible body of radiologists in 2010[2] and if the body of opinion relied upon can demonstrate that such opinion has a logical basis[3].
Professional standards
The applicable governing professional standards at the time, published by the Board of the Faculty of Clinical Radiology in 2006, stated that “review of images requested for a particular purpose may reveal incidental findings or pathology unrelated to the initial request, requiring a wider knowledge of disease processes and their imaging manifestations than is at first apparent”. The guidance went on to state that radiologists are trained observers and that this should lead those with a trained eye to note: (i) normal findings; (ii) unequivocal abnormal findings, both anticipated and unanticipated; (iii) findings that may be normal or abnormal; and, (iv) normal variants. Both reporting radiologists who examined the x-rays confirmed that they would have known what DDH was at the relevant time.
Expert evidence
Dr Landes was the expert radiologist instructed on behalf of the Claimant, whose opinion was that the hips were abnormally aligned and that these abnormalities were obvious or, at the very least, they fell into the category of being findings that may be abnormal. It was her evidence that there had been a breach of duty in failing to report the abnormalities and recommend further investigations.
Dr Landes stated that the PACS system allowed for manipulation of the images, drawing of lines on the image and the taking of measurements. Radiologists are trained to use the system and can, therefore, use it to do all these things. Whilst Dr Landes acknowledged that radiologists are not required to draw lines or take measurements, these capabilities were open to them in order to further consider any suspicions (e.g. of malalignment) they may have.
Dr Raghavan was instructed on behalf of the Defendant. The Court did not consider Dr Raghavan’s evidence to be reliable for a number of reasons, including:
- It was his position that, whilst he identified the abnormalities, it was not reasonable for the reporting radiologists to have identified them. He commented that “for someone who has not been exposed to thousands of x-rays of hip dysplasia it is almost "impossible" to pick this up.”[4] However, when challenged on this position, he changed this and stated that it would have been “extremely difficult”[5].
- Dr Raghavan’s starting point, in his expert report, was that it was reasonable for the entire x-ray to not be considered because it had been ordered for another reason (i.e. for malrotation and not for DDH). However, at trial, his evidence changed. The Court held that his initial comment in his expert report was wrong: “Any suggestion that the whole image did not need to be reviewed was wrong”[6].
- In respect of reporting abnormalities, Dr Raghavan stated (at trial only) that he was “not really concerned about missing subtle finding of hip dysplasia”[7]. This was at odds with the evidence provided by the reporting radiologists who had originally considered the Claimant’s x-rays (and, also, was not in line with the safeguarding standards published in the professional guidance).
- Dr Raghavan indicated that the extent of DDH which should be identified bordered on dislocation. The Court rejected this.
Judgment
The Court referred to Dr Boavida’s statement (one of the radiologist’s who reviewed the images) that “incidental findings are part of the radiologists day to day job” and explained: “It would make sense, of course, to begin with the area of the clinical question. But it does not end there for a competent radiologist; it cannot stop there. An incidental finding should be made by a competent radiologist if it was sufficiently clear.” [8] The Judge relied on the evidence that, with respect to one of the images reviewed, there was “an index of suspicion” that there might be an abnormality and that radiologists were not required to make a definitive diagnosis.[9]
Ultimately, the Court concluded that the failure to identify the abnormality of the hips by both radiologists was outside the range of professional conduct by all reasonable and responsible radiologists.[10]
Comment
With the increase in diagnostic imaging services being provided, it is possible there could be an increase in claims arising from the misreporting / negligent interpretation of images.
It will be important for those who are responsible for providing radiology reporting services and other healthcare professionals who review diagnostic imaging to reflect on the many observations made in this Judgment, particularly those relating to considering incidental findings and acting on any suspicions of potential abnormalities, including through the use of drawing lines and/or taking measurements. Whilst a patient may have had an x-ray or a scan to help physicians make a particular diagnosis, if there is evidence of other abnormalities or may be such evidence, it would be wise to report this. As always, it will be important for a clear report and/or notes to be prepared about all findings, suspicions and considerations.
[1] NHS-Resolution-Annual-report-and-accounts-2022_23.pdf, page 57
[2] Bolam v Friern HMC [1957] 1 WLR 582
[3] Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151
[4] KJY v University College Hospital NHS Foundation Trust [2023] EWHC 2719 (KB) at para 104
[5] KJY v University College Hospital NHS Foundation Trust [2023] EWHC 2719 (KB) at para 112
[6] KJY v University College Hospital NHS Foundation Trust [2023] EWHC 2719 (KB) at para 110
[7] KJY v University College Hospital NHS Foundation Trust [2023] EWHC 2719 (KB) at para 114
[8] KJY v University College Hospital NHS Foundation Trust [2023] EWHC 2719 (KB) at para 125
[9] KJY v University College Hospital NHS Foundation Trust [2023] EWHC 2719 (KB) at para 135
[10] KJY v University College Hospital NHS Foundation Trust [2023] EWHC 2719 (KB) at para 138
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