A Court of Appeal decision on medical negligence has highlighted a new willingness from the courts to overrule accepted professional practice in the health service, according to law firm Reynolds Porter Chamberlain.

In the case of Penney and Others v. East Kent Health Authority, the court found that the health authority had been negligent in failing to spot abnormalities in the cervical smear tests undertaken by the three claimants – who later developed cervical cancer.

But national standards published in 1996 stated that primary screeners of cervical smears could be expected to detect only 85-96% of abnormal smears.

Partner Clare Jaycock said: "Traditionally the UK's courts have viewed a professional as not acting in a negligent manner so long as they have followed the standards of a reasonably competent professional in that industry at that time.

"Where different procedures are considered acceptable by different elements of a profession it had not been for the court to decide which procedure is best."

This view was changed by the House of Lords in 1998 in the case of Bolitho v. City and Hackney Health Authority.

The Lords permitted a judge to overrule professional opinion as to what may or may not be considered professional negligence.

Jaycock continued: "At the time of the House of Lords decision it was thought that this change would make very little difference as judges would be loth to reject an established body of medical opinion and decide that a defendant had been acting illogically.

"Unfortunately, this has not been the case.

"Judges have applied their own logic as to whether the defendant has been negligent or not."


Topics