Wednesday Law Report: Negligent screening of cervical smear tests

24 November 1999

Penney and others v East Kent Health Authority

Court of Appeal (Lord Woolf Master of the Rolls, Lord Justice May and Lady Justice Hale) 16 November 1999

WHILST THE principle that a doctor who was acting in accordance with a practice accepted as proper by a responsible body of medical opinion was not negligent merely because there was a contrary body of opinion was applicable to the question whether cyto-screeners reading cervical smear slides were exercising skill and judgment in determining what report they should make on the slides they had screened, it had no application where the judge was required to make findings of fact as to what the slides showed, even where those finding of fact were the subject of conflicting expert evidence.

The Court of Appeal dismissed the appeal of East Kent Health Authority against a decision that it was liable for the negligent reading of cervical smear test slides.

The three claimants each brought an action against the health authority, arising out of cervical smears taken from them as part of the national cervical screening programme. Each of the smears was reported by the primary screener as being negative. The consequence of the negative reports was that each of the claimants went on to develop invasive adenocarcinoma of the cervix.

At the trial, the evidence was largely limited to the evidence and reports of five expert witnesses. The judge gave judgment for the claimants on the issue of liability. He applied the standard of a reasonably competent screener exercising reasonable care at the time when the screening took place, and found, preferring the evidence of the claimants' experts, that the smear slides contained abnormalities which meant that it was not possible for the reasonably competent screener to have passed the slides as negative.

The health authority appealed, contending, inter alia, that although the judge had asked himself the right question, i.e. how a reasonably competent screener at the relevant time should have reported the slide, nevertheless the opinions of the health authority's experts, which were that abnormalities to be seen on the slide would not have been recognised as such by a reasonably competent screener at the time, so that the classification of the slide as negative could properly have been made, amounted to a good defence upon a proper application of the test set out in Bolam v Friern Hospital Management Committee [1957] 2 All ER.

The principle set out in that case was that a doctor who was acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art was not negligent merely because there was a body of such opinion that took a contrary view.

James Badenoch QC and Giles Eyre (Harman & Harman, Canterbury) for the claimants; Edward Faulks QC and David Pittaway (Trowers & Hamlins) for the health authority.

Lord Woolf MR, handing down the judgment of the court, said that the Bolam test was the appropriate standard to apply to the question whether the screeners were exercising skill and judgment in determining what report they should make on the slides they had screened. However, that test had no application where what the judge was required to do was to make findings of fact as to what the slides showed, even where those finding of fact were the subject of conflicting expert evidence.

Whilst the role of the Court of Appeal in relation to expert evidence was by way of rehearing, the court had to be persuaded that the trial judge, who was the primary judge of fact, had plainly erred. Where the judge had had to resolve conflicts of expert evidence, the Court of Appeal was not absolved from weighing, considering and comparing the evidence in the light of the judge's findings.

In the present case, the judge had been entitled to reach the conclusions which he had. It was always important to remember that the task of the Court of Appeal was to rectify an injustice arising out of the decision of the court of first instance, and, unless it was satisfied that there had been an injustice, the decision of the lower court should stand.