Crumlish v Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 14 March 2023
• Neutral Citation: [2023] IEHC 194
• Docket Number: Record No. 2020/5533P
• Court: High Court

Between

Catriona Crumlish

Plaintiff

and

Health Service Executive

Defendant

[2023] IEHC 194

Record No. 2020/5533P

THE HIGH COURT

Medical negligence – Damages – Causation – Plaintiff seeking damages for injuries caused when her doctors failed to diagnose breast cancer – Whether the size of the plaintiff’s tumour at a point in time could have been estimated reliably by using statistical data and a mathematical formula

Facts: The plaintiff, Ms Crumlish, sought damages for injuries caused when her doctors failed to diagnose breast cancer in May of 2017. Her medical negligence case turned on a causation issue: whether the size of her tumour at a point in time could have been estimated reliably by using statistical data and a mathematical formula. It was not in issue that she had cancer in May, but it was not diagnosed until the following October. Her argument was based on an academic paper which analysed the growth rate of breast tumours. The use of the data presented in that paper, and the application of its authors’ conclusions to the case, were contested. The plaintiff argued that the clinician and radiologist employed by the defendant, the Health Service Executive, failed to adhere to all the required steps of triple assessment in a breast cancer clinic, which was why her cancer went undetected. It was submitted that there was no concordance between the results of clinical and radiological examinations in her case. This, she submitted, should have led to further investigation, whether by further clinical examination or by histopathological investigation; either of those responses would have achieved concordance in respect of identifying the entity in her breast in May 2017. She submitted that, in the absence of those failures, her cancer would have been diagnosed earlier, she would not have had nodal removal surgery and would not have suffered related adverse effects. She sought damages in respect of pain, loss of earnings, the cost of childcare, and loss of pension entitlements occasioned by a consequent reduction in her life expectancy.

Held by the High Court (Gearty J) that the plaintiff’s allegations of negligence in respect of aspiration and concordance only arose if the tumour was detectable in the first place. Looking at Dr Allen’s evidence and report, Gearty J held that it was clear that the basis for his view of the case was that the doubling time theory of Professor Bundred was accurate and reliable. She found that the only two views of the case that he could put forward (that the radiologist did not, in fact, check the marked area or that he did but still somehow missed that obvious cancer) were not the only possible views; the one he did not consider, as it was not referred to in Professor Bundred’s report, was a cancer growing at a rate faster than the range recorded in the Peer data, a cancer that was present, but not detectable in May. Gearty J noted that the radiologists all agreed that the tumour in October was not different in appearance to the tumour in its early months of development. She found that the evidence of what was seen on ultrasound in May, including images of simple cysts and a measured cyst of 12mm at the site of the pea-sized lump, established that the lump was probably a simple cyst. She held that the plaintiff had not proven that the pea-sized lump was a tumour, although all agreed that the tumour probably was present in May; if so, it was probably undetectable at that point. The Court would not go on to consider the arguments in relation to aspiration and concordance in the circumstances; if the pea-sized lump was probably a cyst, then even if there was negligence (and Gearty J made no such finding as it was unnecessary) there was no mis-diagnosis and negligence could not have caused the alleged damage to the plaintiff, which was probably caused by an interval cancer.

Gearty J held that the Court would hear the parties in relation to costs.

Damages refused.

Judgment of Ms. Justice Mary Rose Gearty delivered on the 14 ^th of March, 2023

1. Introduction and outline facts

1.1 This is a medical negligence case which turns on a causation issue: whether the size of the Plaintiff's tumour at a point in time can be estimated reliably by using statistical data and a mathematical formula. She seeks damages for injuries caused when her doctors failed to diagnose breast cancer in May of 2017. It is not in issue that the Plaintiff had cancer in May, but it was not diagnosed until the following October. The Plaintiff's argument is based, in large part, on an academic paper which analysed the growth rate of breast tumours. The use of the data presented in that paper, and the application of its authors' conclusions to this case, have been strongly contested.

1.2 The Plaintiff also argues that the clinician and radiologist employed by the Defendant failed to adhere to all the required steps of triple assessment in a breast cancer clinic, which is why her cancer went undetected. In an argument closely related to that issue, it is submitted that there was no concordance between the results of clinical and radiological examinations in her case. This, she submits, should have led to further investigation, whether by further clinical examination or by histopathological investigation. Either of these responses would have achieved concordance in respect of identifying the entity in her breast in May 2017.

1.3 The Plaintiff submits that, in the absence of these failures, her cancer would have been diagnosed earlier, she would not have had nodal removal surgery and would not have suffered related adverse effects. The Plaintiff seeks damages in respect of pain, loss of earnings, the cost of childcare, and loss of pension entitlements occasioned by a consequent reduction in her life expectancy.

2. Legal principles: medical negligence and the role of the expert

2.1 The leading authority on the standard of care required of medical practitioners in Ireland is Dunne v. National Maternity Hospital [1989] I.R. 91, applied recently by the Supreme Court in the case of Morrissey v. Health Service Executive [2020] IESC 6.

2.2 The right to damages is established by a Plaintiff when she proves not only that she was treated negligently in that the care afforded to her fell below the standard expected of a professional of like skill, but that this negligence caused her to suffer loss and damage. If the entity which was detectable in May of 2017 was not cancer, then even if negligence is established, whether by failure to carry out all stages of triple assessment of the lump or by failure to achieve concordance as to what it was, no damage was caused as taking these steps would not have revealed the tumour which was found in October.

2.3 Expert evidence was considered in the recent case of Duffy v. Brendan McGee & Anor [2022] IECA 254, where Noonan J. and Collins J. delivered judgments in respect of the role of the expert. The Duffy case confirms that the decision as to which opinion carries most weight remains with the Court. The premises on which the opinion is based, the opinion itself, and the expert's evidence when questioned about that opinion should be considered in deciding what weight to attach to the views of any expert. The role of the expert is to give independent advice to the Court and, if her evidence appears to lose that character, this will usually affect the weight of the evidence. The dramatic circumstances in which the expert's evidence was given in Duffy are rare but it is a common, and very human, feature of expert evidence that a witness who should be independent may espouse the views of the instructing team more closely than is ideal.

3. The Modular Trial Issue

3.1 The Defendant sought an Order separating this trial into two modules, the first dealing with liability and causation, and the second, if it arose, dealing with quantum of damages. The Defendant, arguing that the issue of quantum would take twice the time of a liability hearing, relied on Cork Plastics v. Ineos Compound [2008] IEHC 93, Clarke J. and McCann v. Desmond [2010] 4 I.R. 554.

3.2 In Cork Plastics, Clarke J. held that the default position “ is that there should be a single trial of all issues at the same time”. In such applications, the first factor to consider is the complexity and length of the likely trial. Other factors to be taken into account include effects on an appeal, overlaps in evidence, witnesses who are not relevant to all issues, the effect of liability findings on damages and the issue of prejudice.

3.3 This Plaintiff argued that the principles emerging from Cork Plastics and McCann v. Desmond suggested that there should be an issue which can be separated cleanly from others arising in the case.

3.4 In a similar application for a modular trial in Freeney v. Health Service Executive [2020] IEHC 719, Hyland J. held that although there were two witnesses identified by the Plaintiff relating both to liability and quantum, there were very significant numbers of witnesses on both sides who were going to give evidence in respect of quantum only. While conscious of the position of a Plaintiff who might have to give evidence twice, she allowed the application.

3.5 Adopting the same rationale, this Court ruled at the outset of the hearing that while the default position was to prefer a unitary trial and it would be unpleasant for this Plaintiff to give evidence on multiple occasions, as it would be for any plaintiff, there was a clear saving of time and costs in treating the two aspects of this case as being different modules of the same hearing. Furthermore, while it was clear that at least two witnesses would give evidence that may be relevant to all issues, the majority of witnesses could be categorised as offering evidence relevant to questions of liability or questions of quantum, but not both.

4. The Plaintiff's...