Penney v East Kent Health Authority
[1999] EWCA Civ 3005
Court of Appeal (Civil Division)
Lord Woolf MR, Lord Justice May and Lady Justice Hale
Judgment delivered: 16 November 1999
Background
The claimants underwent cervical smear testing as part of the national cervical screening programme. Their smears were reported as negative, resulting in no further investigation or treatment. Each subsequently developed invasive adenocarcinoma of the cervix and required major surgery, including hysterectomy.
At trial, the judge found the Health Authority liable for negligent screening. The Authority appealed, arguing that the cytoscreeners’ conduct met the standards of reasonably competent screeners at the time and that the judge had failed properly to apply the principles in Bolam and Bolitho.
Decision
The Court of Appeal dismissed the appeal and upheld the findings of negligence.
Key Legal Principles
1. Application of Bolam and Bolitho
The court confirmed that cytoscreeners exercise professional skill and judgment, meaning the Bolam test generally applies. However, professional opinion does not automatically determine liability. Following Bolitho, a court must be satisfied that the supporting professional opinion has a logical and defensible basis.
2. Distinction between fact and expert opinion
Before applying Bolam, the court must determine as a matter of fact what was actually visible on the slide. That factual question remains for the judge, even where experts disagree.
The court identified three separate questions:
- What was visible on the slide?
- Could a reasonably competent screener have failed to see it?
- Having seen it, could a reasonably competent screener properly classify the smear as negative?
3. Obvious abnormalities require referral
The trial judge was entitled to find that the relevant slides contained abnormalities which competent screeners should have recognised. Where abnormalities could not confidently be regarded as benign, the screener’s role was not to make a final diagnosis but to refer the slide for further assessment.
A smear should not be labelled negative where observable abnormalities create doubt about whether the changes may be precancerous.
4. The “absolute confidence” approach
The evidence demonstrated that screeners were expected to refer smears whenever they were in doubt. A negative report was appropriate only where the screener could confidently conclude that no significant abnormality was present.
The court endorsed the judge’s conclusion that where obvious abnormalities existed and their significance was uncertain, patient safety required referral rather than a negative classification.
5. False negatives are not necessarily negligence
The Court emphasised that cervical screening is not infallible. False negative results can occur even in competent screening programmes, particularly with glandular abnormalities and adenocarcinoma.
The case did not establish that every patient who later develops cervical cancer has been negligently screened. Liability arose because the judge found that these particular slides contained visible and significant abnormalities that should not reasonably have been reported as negative.
6. Appellate restraint in expert-evidence cases
The Court of Appeal reaffirmed that findings based upon the assessment of competing expert evidence are primarily matters for the trial judge. An appellate court will not interfere unless clear error is shown.
Outcome
The Court of Appeal upheld the findings of negligence against the Health Authority. The trial judge had been entitled to conclude that the slides contained observable abnormalities which competent cytoscreeners should have referred for further review rather than report as negative. The appeal was dismissed and leave to appeal to the House of Lords was refused.