Freeney v Health Service Executive

JurisdictionIreland
JudgeMs. Justice Niamh Hyland
Judgment Date29 May 2020
Neutral Citation[2020] IEHC 286
Docket Number[2017 No. 5298P]
CourtHigh Court
Date29 May 2020
BETWEEN
SIOBHAN FREENEY
PLAINTIFF
- AND -
HEALTH SERVICE EXECUTIVE
DEFENDANT

[2020] IEHC 286

Niamh Hyland J.

[2017 No. 5298P]

THE HIGH COURT

Negligence – Harm – Screening – Plaintiff asserting professional negligence – Whether the plaintiff’s breast screening was carried out negligently

Facts: The plaintiff, Mrs Freeney, asserted that her breast screening in June 2015 by the national screening service BreastCheck, run by the defendant, the Health Service Executive, was carried out negligently, that she should have been clinically recalled and sent for further examination, and, had that been done, the cancer diagnosed in December 2015 would have been detected in June 2015. She accepted that she would nonetheless have received treatment for cancer including a mastectomy but said that she would likely have avoided chemotherapy and radiotherapy to the chest wall and would have required only a sentinel node biopsy. Had that been the case, it was said she would have avoided certain side effects of her actual treatment, including lymphoedema. Based on her experts’ estimate of the size of the tumour in June 2015, her life expectancy would have been shortened by between 3.4 years and 0.9 years (depending on the doubling time of the tumour used) instead of 6.9 years. The plaintiff asserted she should have been clinically recalled where there were suspicious irregularities in the mammographic images warranting further investigation and she informed the radiographer carrying out the mammogram, Ms Mathews, of clinical symptoms that ought to have warranted a recall. A further issue in the case was whether negligence, if present, in fact caused harm to the plaintiff. This required the High Court (Hyland J) to consider two separate questions: first, whether cancer was in fact present in June 2015 and second, if so, whether it would have been diagnosed had the plaintiff been clinically recalled. It was agreed between the parties that if the answer to those questions was yes, then some harm was done to the plaintiff by the diagnosis taking place in December 2015 rather than June 2015, the nature of which was to be determined at a separate quantum hearing (as ruled on the first day of the trial following an application for a staggered trial by the defendant).

Held by Hyland J that the plaintiff’s cancer was a true interval cancer, i.e. it showed normal or benign features in the screening mammogram of June 2015 and therefore reporting the mammogram as normal was not negligent; equally, the defendant acted appropriately in not identifying the plaintiff for clinical recall following her screening in June 2015, having regard to her clinical presentation and given the Guidelines on Clinical Recall within which Ms Mathews, Dr Pender and Dr Coffey were operating.

Hyland J held that the plaintiff’s claim would be dismissed.

Claim dismissed.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 29 May 2020
Introduction
1

The plaintiff, Mrs. Siobhan Freeney, asserts that the national screening service, BreastCheck, run by the HSE, have been negligent in the way in which her breast screening was carried out in June 2015. At that time, she was called in the usual way for her two-yearly mammogram (as she was over 50 years of age and under 65). Following a mammogram that took place in the mobile screening unit in Gorey, Co. Wexford, her images sent for review by radiologists. A note from the radiographer went to the two radiologists reading her mammogram, in the following terms: “Hx of cysts. Lady feels a cyst in the R breast. Couldn't tolerate compression on R” (the “Note”). Both radiologists considered the plaintiff's images and Note separately (as is normal practice) and neither thought she required clinical recall for further examination.

2

In November 2015, the plaintiff noticed symptoms of concern in her right breast and she went to her GP who immediately referred her for triple assessment at St. Vincent's Hospital, Dublin 4. She was diagnosed in December 2015 as having invasive lobular carcinoma. She underwent neo-adjuvant chemotherapy, a mastectomy of her right breast, axillary clearance whereby all her lymph nodes in her right armpit were removed, and radiotherapy following the mastectomy. Happily, the treatment was successful and the plaintiff is, at present, free of cancer.

3

In short, the plaintiff says that her screening by BreastCheck was carried out negligently, that she should have been clinically recalled and sent for further examination in June 2015, and, had that been done, the cancer diagnosed in December 2015 would have been detected in June 2015. She accepts that she would nonetheless have received treatment for cancer including a mastectomy but says that she would likely have avoided chemotherapy and radiotherapy to the chest wall and would have required only a sentinel node biopsy. Had that been the case, it is said she would have avoided certain side effects of her actual treatment, including lymphoedema. Based on her experts' estimate of the size of the tumour in June 2015, her life expectancy would have been shortened by between 3.4 years and 0.9 years (depending on the doubling time of the tumour used) instead of the current 6.9 years. The plaintiff asserts she should have been clinically recalled where:

- There were suspicious irregularities in the mammographic images warranting further investigation;

- She informed the radiographer carrying out the mammogram, Ms. Mathews, of clinical symptoms that ought to have warranted a recall.

4

A further issue in the case is whether negligence, if present, in fact caused harm to the plaintiff. This requires me to consider two separate questions – first, whether cancer was in fact present in June 2015 and second, if so, whether it would have been diagnosed had the plaintiff been clinically recalled. It is agreed between the parties that if the answer to those questions is yes, then some harm was done to the plaintiff by the diagnosis taking place in December 2015 rather than June 2015, the nature of which is to be determined at a separate quantum hearing, (as ruled on the first day of the trial following an application for a staggered trial by the defendant).

Legal Standard
5

The law in this jurisdiction in respect of professional negligence, including in the context of screening decisions, has been recently restated by the Supreme Court in the case of Morrissey v. HSE [2020 IESC 6]. Clarke C.J., giving the decision on behalf of the Supreme Court, summarised the legal standard of care in a clinical negligence claim, or indeed any professional negligence claim, as requiring “the court to assess whether no reasonable professional of the type concerned could have carried out their task in the manner which occurred in the case in question. That overall test requires a court to determine what standard a reasonable professional would apply” (paragraph 16.2). He observed that the test in Dunne (an Infant) v. National Maternity Hospital [1989] I.R. 91 remains the basis for identifying the legal standard of care by reference to which a claim in clinical negligence is to be assessed.

6

Helpfully, the case of Morrissey sets out a clear road map in a case of alleged professional negligence. The starting point is the identification by the court of the standard of approach that would have been applied by a professional of the appropriate standing or skill as the person against whom the allegation of negligence is made (paragraph 6.6). Or, as restated at paragraph 6.12 of the judgment of the Chief Justice, “what would an ordinary competent professional of the type and skill of the individual concerned have done, and did the professional who is sued meet that standard”?

7

Here, as in Morrissey, there is no issue concerning the adoption of a common practice with inherent defects that ought to have been obvious. Insofar as the allegation of negligence with respect to the reading of the mammographic images is concerned, there is no dispute about the standard of approach: rather the dispute centres on whether there was any cause for concern on the images. In other words, what I must consider is whether the two consultant radiologists who read the plaintiff's mammogram, Dr Pender and Dr Coffey, fell below the accepted standard of approach.

8

Insofar as the clinical presentation allegation is concerned, it is necessary to identify the appropriate standard of approach as there is a dispute between the parties on this point. In this respect, the Guidelines for Clinical Recall 2014 (referred to within BreastCheck as the standard operating procedures or “SOP”) as developed by BreastCheck are highly relevant. The Guidelines themselves are not challenged in these proceedings. The Guidelines were adopted pursuant to the Guidelines for Quality Assurance in Mammography Screening (4th edition 2015) (“Guidelines for Quality Assurance”), developed by BreastCheck. Under the Guidelines for Clinical Recall, clinical recall for reasons unrelated to the results of the mammogram will only be made for significant signs and symptoms that are known risk factors for cancer, where those signs and symptoms are either observed by the radiographer or made known to the radiographer by the woman being screened. Those known risk factors are: (a) new lump (b) skin dimpling/tethering/inflammation (c) recent nipple inversion. Where those risk factors are not present, but the radiographer obtains information they consider potentially relevant, under the guidelines they may write a note to alert the radiologists to that information. The radiologist must read the note and use personal clinical judgement in deciding what action if any should be taken.

9

I must decide upon the correct standard of approach for a competent consultant radiologist, operating in a national screening service such as BreastCheck, with equivalent clinical recall guidelines, when...

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