Feeney v Waterford City and County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Hyland
• Judgment Date: 03 March 2020
• Neutral Citation: [2020] IEHC 115
• Date: 03 March 2020
• Docket Number: [RECORD NO. 2017 5298 P]
• Court: High Court

BETWEEN

SIOBHÁN FREENEY

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

[2020] IEHC 115

Hyland J.

[RECORD NO. 2017 5298 P]

THE HIGH COURT

EX TEMPORE JUDGMENT of Ms. Justice Hyland of 3 March 2020

1 This is an application by the Plaintiff to exclude certain portions of the evidence of Dr Coffey who is asserted to have acted negligently in the review of the Plaintiff's mammography slides in June 2015. It started out as an application to exclude portions of all five witnesses who viewed the Plaintiff's mammography slides. However, it has now narrowed down to the evidence of Dr Coffey although undoubtedly any ruling excluding same would have implications for the evidence of other witnesses, particularly that of Dr Pender.

2 It is a very specific application whereby the Plaintiff only objects to Dr Coffey interpreting the mammographic images and not to the giving of any other evidence by her. For that reason, in this ruling I will not address the other aspect of the case, i.e. the alleged failure to refer the Plaintiff for further assessment including ultrasound examination, having regard to her clinical presentation or symptoms on 17 June 2015.

3 I must start this analysis by identifying the test I will ultimately be asked to apply when determining these proceedings, being that identified by the Supreme Court as applicable in cases of medical negligence in Dunne v. National Maternity Hospital [1989] I.R. 91 i.e. whether the medical practitioner has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.

4 In respect of the alleged failure to identify suspicious features on the mammogram, that will necessitate me deciding whether those medical practitioners who read the mammograms, in this case the two radiologists, Dr Coffey and Dr Pender, were guilty of such failure as no medical practitioner of equal specialist skill would be guilty of if acting with ordinary care. The fact that only the HSE is being sued, and not Dr Coffey or Dr Pender, does not alter the position in this respect.

5 In any medical negligence cases, it is common to hear from both witnesses of fact and expert witnesses. The Defendant has proffered both in respect of the reading of the mammograms in June 2015 – Dr Rosalind Given-Wilson as an expert witness, and Dr Coffey and Dr Pender as factual witnesses. Other factual witnesses are put forward in respect of the review in December 2015. I approach the matter on the basis that such evidence will be potentially relevant to my decision. Similarly, I have already had factual and expert evidence on behalf of the Plaintiff in respect of the reading of the mammogram in June 2015 and again I anticipate that evidence will be relevant to my decision.

6 Where it is alleged that there has been a negligent act or omission, it is important a court understands as fully as possible the entire circumstances surrounding that act or omission. That will usually involve evidence from the persons against whom the allegations of negligence are made. Of course, a party is not obliged to put forward any particular witness. However, a decision not to do so may make it more difficult for the court to adjudicate upon the matters it is called upon to decide.

7 That was the situation in Morrissey v. HSE & ors. [2019] IEHC 268 where the court was called upon to consider, inter alia, whether the reading of slides obtained when screening for cervical cancer was negligent. Cross J. noted at paragraph 92 of his judgment, in considering the 2009 smear test, and asking whether a reasonably competent screener could have treated the slide as negative, that the second defendant chose not to call as evidence the original two screeners of the slide in 2009. He said that in the absence of the screeners, he was “left in a vacuum as to what they did or did not see or how they did or did not appraise the slide”. He further noted that second defendant did not call to give evidence the person who conducted the internal audit of the slide...