A recent decision illustrates how a court may rely on evidence and on lack of evidence to resolve the issue of whether a practitioner fell below the standard reasonably to be expected of a competent practitioner (Bolam). In Payne v Jatoi  a High Court judge heard an appeal from the trial judge as to whether the finding that a GP’s failure to diagnose a fractured hip during a telephone triage was not negligent could be sustained.
The claimant had multiple sclerosis and walked with the aid of a frame. She fell in the bath, but with the assistance of her carer was able to get up and walk with her frame. She rang her GP and told her that she could walk with a frame and that she had pain in her leg and bottom. In answer to a question from the GP she was unable to say if one leg was shorter than the other as she could not straighten her leg. She was advised to obtain over-the-counter pain relief and call back if matters deteriorated. 2 weeks later she was admitted to hospital and diagnosed with a fractured hip for which she required a partial hip replacement.
The GP’s expert’s evidence was that the combination of a hip fracture and the ability to weight-bear was very rare, and as the claimant had MS and did not have full mobility one would look for very serious pain, of which there was no evidence. The appeal judge noted that the expert did not say that the claimant’s inability to straighten her leg interfered significantly with her mobility, there was no evidence given at trial that the claimant was not walking normally (for her) when the call to the GP was made, and that the absence of prescribed pain killers confirmed the low level of pain.
The GP was unable to recall the questions that she had asked during the triage call and the claimant was not asked in evidence what questions she had been asked, and therefore the appeal judge found the trial judge entitled to make no findings about that aspect of the evidence.
The court hearing a dispute does the best it can on the evidence presented to it to resolve the dispute on the balance of probabilities. Sometimes the evidence presented is incomplete leaving the judge to make inferences from such facts as are established. Here the judge relied on the absence of evidence that the claimant’s walking was not normal, and the evidence of an absence of prescribed pain killers, combined with the expert’s opinion that a combination of hip fracture and the ability to weight-bear in the absence of very serious pain was very unlikely, to conclude that it was not proved that the GP was negligent in her telephone diagnosis.
A wise doctor (and perhaps a cautious patient) would ensure a detailed record of such a discussion was made during or immediately after the phone call.
The decision of a trial judge based on findings of fact is rarely overturned on appeal.
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 Lambert J, 26/1/18 Lawtel AC5001603