MEDICO‐LEGAL ASPECTS OF CERVICAL SCREENING
Authors: Elliston S. 
Published: August 2006

The issue provoked probably most anxiety in the profession is that of claims in negligence in the performance of screening. The most high profile case in this area is that of Penney, Palmer and Cannon v East Kent Health Authority. Here it was held that the recording of a number of cervical smear tests as negative, rather than borderline, was negligent. The case is viewed as significant not only in respect of the standard of care in this speciality but also in terms of potentially indicating a shift in the approach of the courts toward establishing medical negligence. To put it at its simplest, the established test in medical negligence is that of accepted professional practice (the Bolam test) and the same standard applies to all healthcare professionals, including cytology screeners. It will be obvious that this test relies very heavily on expert evidence. Using expert evidence has some clear merits. The judiciary are not experts in the area of health care practice and it might seem peculiar for judges to decide which out of various approaches should have been employed or whether the way in which care was given, where there are variations of practice, was appropriate. There will often be more than one way of approaching diagnosis and treatment and differences of opinion between practitioners as to which would be best for an individual patient. The problem is that a distinction can be made between empirical considerations and normative ones. Empirical considerations broadly concern evidence of what actually happens in practice and the reliability of that evidence. Normative considerations on the other hand deal with what should happen rather than what does happen. Generally the judiciary are expected to exercise a normative judgement and not rely on empirical evidence alone. The usual legal principle is that judges are the arbiters of what constitutes acceptable practice, not a professional body. However, the way that the courts approached cases after Bolam seemed to suggest that in medical negligence cases they were more concerned with empirical matters than normative ones and as such were arguably not properly exercising the function of a legal forum. Following the case of Bolitho, it has been suggested that the courts may be showing signs of a greater willingness to hold healthcare professionals to have been negligent, despite expert evidence that the approach adopted was acceptable. In doing so, the courts in some cases, like Penney, appear to be engaging in a risk/benefit analysis toward the standard of care given and exercising a more independent judgement on this. Thus in Penney it was held that it would be riskier to err on the side of indicating a false negative than a false positive and that screeners should be applying a test of ‘absolute confidence’ before classifying a slide as negative. While it would be wrong to suggest that expert evidence is no longer crucial in medical negligence cases, the extent that it will be determinative is perhaps now more open to doubt.

References:  1. Penney, Palmer and Cannon v East Kent Health Authority [2000] Lloyd's Rep Med 41 (CA)

2. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118(HL)

3. Bolitho v Hackney Health Authority [1997] 4 All ER 771 (HL)