A Court of Appeal decision in the medical negligence case of Penney and Others v. East Kent Health Authority highlights a new willingness of the courts to overrule accepted professional practice in the health service.

According to law firm Reynolds Porter Chamberlain, this has meant that professionals are increasingly unable to identify the standards they are required to follow and health trusts and their insurers are becoming more uncertain as to when they should contest or settle a legal action.

The court found that East Kent 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. However, national standards published in 1996 had stated that primary screeners of cervical smears could be expected to detect only 85- 95% of abnormal smears.

Clare Jaycock, a partner at Reynolds Porter Chamberlain, commented: "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 the time. This avoided defendants being put in the inequitable position of being judged with the wisdom of hindsight."


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