Does it make sense?

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)