It is spring time and Tiger Woods
is back. Let’s talk about golfing. When reading golf magazines, there are always
columns on quizzes and asking the pros. So
I throw out a question for you: When a
professional golfer misses a half-foot putting, is he unprofessional?
What is unprofessional? As doctors, we have been sensitized by the
word “unprofessional” and are likely to link it automatically to professional
misconduct. Our approach to the question
would be to ask if his act of missing a half-foot putting falls below the
standard of his peers. Someone would
suggest asking the opinion of another pro in golfing. Then there happens to have one pro telling you
that it does happen for pros to miss short putting. Evidence is ample if you watch TV. Even Tiger Woods misses short putting once in
a while.
If you, acting as the judge, stop
at this point and are satisfied that the golfer involved is not unprofessional,
then you are unprofessional to act as the judge. The pro who gives his opinion is only a pro in
golfing, but not a pro in judging. The
judge should analyze the context of the missed put. Was the golfer aiming at the hole? Had he done his routine preparatory work? Was he distracted? Had he done that putting in his usual manner? The judge should be satisfied that all these
things had been done properly and that it was only hard luck that the golfer
missed the short-distance put. He can
then rule the golfer not unprofessional. In some cases, even the lay audience can
easily point out that the golfer has failed to aim at the hole. The golfer can thus be regarded unprofessional
without involvement of the expert witness. That’s how common sense works.
The above is a parable told by
me to explain the development of the approach by courts through the cases of
Bolam and Bolitho regarding the decision of breaching of duty in clinical
negligence. They also bear some relation
to the decision of professional misconduct. The famous Bolam Test states that: “A doctor is not guilty of
negligence if he has acted in accordance with a practice accepted as proper by
a responsible body of medical men skilled in that particular art... Putting it the other way round a doctor is not
negligent, if he is acting in accordance with such a practice, merely because
there is a body of opinion that takes a contrary view”.
However, courts are uneasy at
this simplified, automatic approach. In Hucks v Cole ([1993] 4 Med LR 393), Sachs LJ introduced the “insurance
principle” into the Bolam Test. Basically,
he opined that if the price for precautions to prevent the actualization of a
certain risk was small when compared to the risk involved, it was negligent to
omit the precautions no matter what other doctors did. He said (at page 397): “When the evidence shows that a lacuna exists
by which risks of great danger are knowingly taken, then, however, small the
risks, the courts must anxiously examine that lacuna - particularly, if the
risks can be easily and inexpensively avoided. If the court finds on
an analysis of the reasons given for not taking the precautions that, in the
light of current professional knowledge, there is no proper basis for the
lacuna, and that it is definitely not reasonable that those risks should be
taken, its function is to state that fact and where necessary to state that it
constitutes negligence. In such a case
the practice will no doubt be altered to the benefit of patients. On such
occasions the fact that other practitioners would have done the same thing as
the defendant practitioner is a very weighty matter to be put on the scales on
his behalf; but it is not conclusive.”
Subsequently, the House of Lords seized the opportunity to
re-explain the Bolam Test in Bolitho v City and Hackney
H.A. ([1997] 4 All ER 1151). They made some interesting observations on the
status of the Bolam test. They opined that it was not enough to solely rely on medical opinions. The opinion itself “must have a logical
basis”. The court therefore must be
satisfied that the experts in question had weighed up the risks and advantages
associated with a particular procedure and had reached, in Lord
Browne-Wilkinson’s words, “a defensible conclusion”. I reframe the approach in one question: Does it make sense?
One
sunny day, I had the privilege of discussing cases with some senior colleagues.
One of the case scenarios described an adult patient who presented himself to
an ENT specialist with several weeks’ history of one-sided ear block, ear discomfort
and tinnitus, together with recurrent nose bleeding. I opined that the patient actually presented with the cardinal symptoms
of nasopharyngeal carcinoma. Missing
that diagnosis without further investigations put the doctor at risk of
professional misconduct. I was mocked at
by a senior doctor. He told me that I
should not think that I processed better knowledge on NPC than a specialist in
ENT. Moreover, there happened to be
another ENT specialist who believed that missing the diagnosis of NPC with
repeated consultations on that patient was accepted practice in his expert
opinion. That was not a case of tricky
NPC where repeated biopsies were negative on different occasions. Apparently I doubted whether the EBV status or
an endoscopic examination had been performed. The patient was lucky to trust his lay knowledge
and visited another ENT specialist, who diagnosed NPC right away and started
treatment.
As a family doctor, I always
remind myself and medical students about two separate lists of differential
diagnoses. One list involves common
causes on which you will probably find the actual diagnosis to account for the
patient’s signs and symptoms. The other
list includes important causes that a doctor cannot afford to miss. They are serious illnesses particularly those
that are treatable. Missing the diagnosis
means depriving the patient of an opportunity to have early treatment and
sometimes it means depriving the patient of his life. Nasopharyngeal carcinoma is common in Hong
Kong and it is of good prognosis if identified and treated early. The patient in the case scenario obviously
went to see the specialist to rule out the risk of something serious. Did evidence tell us that the doctor had
thought of the diagnosis of NPC? Had he
ruled out the important diagnosis by assessing the risks of the patient? Was he aware of the family history of NPC of
the patient? Had he checked the EBV
status? Had he done any further
investigations including scanning or endoscopy? Did the judge and the expert consider these
questions that the patient wanted them to answer? Did all these make sense?
(Source: HKMA News March 2010)
