Court of Appeal concludes GP’s actions to “wait and see” were not negligent

Failure to diagnose a condition on first presentation – if the condition is present - does not automatically mean care was below the required standard. Courts recognise that some conditions present with non-specific symptoms and that it can be reasonable to use time as a diagnostic tool while symptoms evolve, provided the initial assessment and investigations are appropriate.

However, if time is being used in this way, it must be clearly communicated to the patient. Diagnostic error often arises from communication and system issues rather than clinical knowledge. In this case, the lack of clear advice about when to return, combined with limited follow-up processes, highlighted the importance of clear safety-netting and shared understanding between doctor and patient.

Ms A was diagnosed with non-Hodgkin’s lymphoma. Sadly, despite receiving treatment, her condition became terminal and she died during the course of the  appeal hearing some years later.

She claimed general practitioner, Dr T, was negligent in failing to follow up or properly diagnose her condition, denying her access to earlier treatment which would have offered her a cure or remission.

Most of the facts were not in dispute.

Ms A saw Dr T complaining of leg pain that had been present for several months and had worsened over the preceding week, interfering with her ability to walk. She described the pain as severe (8/10). However, after examination Dr T formed a view that Ms A’s pain was only moderate (estimated 4/10).

Dr T reached a differential diagnosis of muscle injury or possibly iron deficiency, prescribed an anti-inflammatory and ordered blood tests.

The blood tests indicated a normal range for iron levels. The practice informed Ms A of the results and did not suggest she return for further investigation or testing.

Ms A continued to present to the practice for other conditions. She claimed she had reported ongoing back or leg pain, but there was no mention of this in her medical records. Around nine months later, she saw Dr T again, reporting worsening lower back and leg pain as well as unexplained weight loss, lethargy and incontinence. Dr T provisionally diagnosed arthritis and ordered x-rays and an ultrasound. She was referred to an orthopaedic specialist for an MRI scan and this led to a diagnosis of her non-Hodgkin’s lymphoma.

Delayed diagnosis: was Dr T’s initial investigation reasonable?

Ms A’s lawyers claimed Dr T had breached their duty of care by failing to properly investigate Ms A’s symptoms at the first consultation and leaving her without a definitive diagnosis.

Based on the expert evidence, the primary judge found that:

• Dr T’s initial examination, while brief, was sufficient to exclude conditions requiring urgent intervention,
• a reasonable GP would not have considered lymphoma as a likely diagnosis at that first presentation,
• ordering advanced imaging after the initial consultation would have been an unjustified escalation
• The investigations ordered were reasonable in the circumstances.
• Experts disagreed as to whether the lymphoma would have been detectable on a PET scan if it had been performed shortly after that first consultation. It was also unclear how quickly the lymphoma had progressed, or whether Ms A had in fact been experiencing symptoms of lymphoma at the time of the first consultation.

The primary judge accepted the lymphoma may have been detectable at that first consultation, but it was unlikely Ms A would have been referred for a PET scan any earlier than she had been, since pain relief appeared to have been effective.

Recall, follow-up and communication

A key issue was whether Dr T had clearly advised Ms A to return if her pain did not improve.

The evidence on this point was unclear. The primary judge found that even if such advice had been given, it was not clearly communicated as part of an intentional ‘wait and see’ diagnostic strategy.

This reflected the importance of clearly explaining to patients when time is being used to clarify a diagnosis and that returning for review is a necessary part of that process if symptoms do not improve.

Best practice would be to ‘safety net’ by taking steps such as:

• explaining the purpose of the blood tests and what they might show
• explaining that Ms A needed to return if the pain did not resolve
• considering booking a further appointment which could be cancelled if it was not needed
• documenting the advice and treatment plan so that other doctors are the practice were aware of the issue if she returned.

However, both the primary judge and the court of appeal emphasised that Dr T’s care was not to be judged against best practice, but against what was reasonable in the circumstances.

It was found that it was not unreasonable to expect that short-term leg pain might resolve, nor was it unreasonable to assume Ms A would return if symptoms persisted. In fact she did return on several occasions without reporting further or ongoing pain.

Medical records

While Dr T’s records were criticised as less than ideal, the court accepted that they did not demonstrate inadequate care.

Importantly, the medical records were not the cause of a delay in diagnosis. Their relevance lay in limiting the practitioner’s ability to demonstrate whether safety-netting advice had been given.

In the Supreme Court, the judge concluded that some aspects of Dr T’s care fell short of best practice. However Dr T’s care was not unreasonable or below the accepted standard. Further, Ms A’s lawyers could not show that any failure to follow up had caused a delay in her diagnosis.

The Court of Appeal agreed with the primary judge’s finding and dismissed the appeal.

Delays in diagnosis can be distressing for patients and families, but courts recognise that diagnosis often develops over time. Taking time to reach clarity does not, of itself, mean your care has fallen below the required standard.

You should involve patients in the diagnostic process and, where appropriate, can use time to observe how symptoms evolve. This includes clearly explaining the purpose of any tests or investigations, what improvement you expect to see, and when the patient should return or seek further review if symptoms persist or worsen.

Clear documentation of your examination, diagnostic reasoning, investigations and advice to the patient can become critical if your care is later questioned. You may need to rely on your notes to explain your clinical reasoning and what you discussed with the patient.

Avant factsheet – Patient follow-up and recalls

Avant factsheet – Reducing diagnostic error

Avant factsheet – Missed or delayed diagnosis

Avant eLearning – Reducing diagnostic error

Avant factsheet – Medical records: the essentials