Differentiating Negligent Standards of Care in Diagnosis

Kathleen Liddell, Jeffrey M Skopek, Isabelle Le Gallez and Zoë Fritz

Medical Law Review, 2022, vol. 30, issue 1, 33-59

Abstract: Diagnosis lies at the heart of the medical encounter, yet it has received much less attention than treatment. It is widely assumed that negligent diagnosis claims should be governed by the Bolam test, but we demonstrate that this is not always the case. First, we disaggregate the diagnostic process into three different acts: forming the diagnosis, communicating it to the patient, and recording it. Second, we consider alternatives to Bolam for defining negligence, including less deferential profession-led standards, patient-led standards, and even a reasonable person standard. Third, bringing together these distinctions—within the diagnostic process, and between standards of care—we reveal the unappreciated complexity of negligent diagnosis. Analysing the standard of care that might apply to the three different acts in the diagnostic process, we identify reasons to think that Montgomery should apply to the communication of a diagnosis. We also argue that even in areas where the law is well-established, such as the application of Bolam to the formation of a diagnosis, challenging questions arise that require further attention. Throughout, the framework and analysis that we develop have significant implications for a set of negligence cases, as well as for medical education, clinical guidelines, and patient care.

Keywords: Bolam; differential diagnosis; information disclosure; Montgomery; negligence; standard of care (search for similar items in EconPapers)
Date: 2022
References: Add references at CitEc
Citations:

Downloads: (external link)
http://hdl.handle.net/10.1093/medlaw/fwab046 (application/pdf)
Access to full text is restricted to subscribers.

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:oup:medlaw:v:30:y:2022:i:1:p:33-59.

Access Statistics for this article

Medical Law Review is currently edited by Professor Sara Fovargue and Professor Jose Miola

More articles in Medical Law Review from Oxford University Press
Bibliographic data for series maintained by Oxford University Press ().