The answer is “42”. What was the question?

Those readers who remember “The Hitchiker’s Guide to the Galaxy” will recall that the answer to the Ultimate Question of Life, the Universe and Everything was “42”. However, no one could understand this, as they hadn’t understood the question.

In my clinical practice I have to restrain junior colleagues from carrying out investigations, sometimes labelled as “routine”, without a clear idea as to what question is being asked. Therefore, the result, be it normal or not, does not advance the understanding of a patient’s presenting complaint.

In the medicolegal world, the situation is made more complex by the erroneous belief that ordering investigations, for no good clinical reason, will protect a practitioner from a lawsuit. Of course, a defence depends upon one’s actions being supported by a reasonable body of opinion, and not how many investigations were ordered. However,  not acting upon an abnormal result – presumably because the result is not understood because the reason for doing it was not clearly formulated – is likely to attract criticism. I have recently been asked to give an opinion on two such cases.

The Claimant attended the out of hours centre complaining of breathlessness. The attending doctor examined him, and measured the oxygen saturation of the blood in his fingertips using a standard piece of equipment called a pulse oximeter. Having measured an unexpected, and extremely low reading, he felt that there was something wrong with the device, and did not take heed of the result, supported by, as he saw it, his clinical judgement. The patient went home instead of being admitted to hospital, and died a few hours later.

The point is that using the pulse oximeter in the first place was not mandatory. I could have supported his actions with reference to the legal test in depending upon his clinical judgement alone, especially since the consultation note was comprehensive and of high quality.  However, in my opinion, no reasonable body of opinion could support neglecting the  pulse oximeter reading, even if it were not strictly necessary an investigation.

The second case was around an alleged late diagnosis of  large bowel cancer. There were many aspects of the care over which the Claimant’s representatives had raised concerns.  Relevant to this article is that at some point the Defendants had ordered a blood test for estimation of “C reactive protein”. This is a sensitive, but non specific test for inflammation or infection.  The result was unexpectedly high, and the Defendant passed it off as normal, and ordered a repeat in one month, when it was still elevated. No action was ordered at this point either.

Once again, the point is that omitting to carry out this test in the first place could not, in my opinion, be criticised.  It was entirely unclear as to why this had been performed, other than it is on a long list of tests that can be ordered by ticking the box on the request form. What cannot be supported is the subsequent failure to act on the result. Although its significance in relation to a patient with bowel cancer is unclear, no reasonable body of opinion would support doing nothing.

It is clinically, and medicolegally, wholly unsatisfactory to order tests and investigations without a clear understanding of the indications and limitations of such, and consequently, without an understanding of how to interpret the results.

National Institute for Clinical Excellence – the only “reasonable body of opinion”?

Letters of Claim from Claimant solicitors frequently include a reference to National Institute of Clinical Excellence (NICE) guidelines, in a form something along these lines under a heading “Breach of Duty”: “Dr X was in breach on [date] when he did not follow the NICE guidelines.”

It is necessary to appreciate the role and the scope of NICE. It is to be hoped that NICE give reasonable and learned clinical guidance, but their remit is, in fact, to assess treatment and investigation by cost-effectiveness.

Furthermore, this approach is not consistent with a correct application of the Bolam test. As usually framed, a doctor may be negligent if “no reasonable body of opinion” would support his or her actions. The test does not define a reasonable body of opinion, let alone specify which one should be accepted by a Court. There may be several “reasonable bodies of opinion” in respect to a clincial scenario, of which only one may be that specified in NICE guidance. So, while adhering to NICE guidelines is probably a defence in most situations, not doing so is not prima facie evidence of negligence.

I am of the opinion that aspects of NICE guidance are in fact illogical, and therefore  do not consitute a reasonable body of opinon, or to follow them would fall foul of the Bolitho test. Part of NG12 (guidance on referral for suspected malignancy), used to state – to be fair it has been revised –  with respect to bowel cancer, that a patient over 50 (but under 60) with altered bowel habit should have a faecal occult blood test (biochemical detection of blood in the stool) test before referral. However, since this test has a 50% false negative rate for bowel cancer (that is, 50% of people with bowel cancer do not have blood detectable in the stool), it seems to me that to follow this guideline would not be “reasonable”.