Rossiter v Donlon
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 28 February 2019 |
| Neutral Citation | [2019] IEHC 105 |
| Court | High Court |
| Docket Number | [2018 No. 7379 P.] |
| Date | 28 February 2019 |
[2019] IEHC 105
THE HIGH COURT
Barr J.
[2018 No. 7379 P.]
Tort – Negligence – Medical and Healthcare Law– Plaintiff seeking damages for the alleged negligence of the defendant in her care and advice – Whether a reasonably prudent general practitioner exercising ordinary care would have acted as the defendant did in the circumstances
Facts: The plaintiff was diagnosed with metastatic breast cancer in October 2016. The plaintiff brought an action against the defendant, a general practitioner, alleging she was negligent in the care and advice she gave to the plaintiff at an appointment on 24th September 2014. The plaintiff had attended the appointment with the defendant after noticing a lump in her left armpit. The plaintiff alleged that no breast examination was offered to her and that follow up care was not provided or suggested. The defendant submitted that the plaintiff had declined a breast exam. The defendant stated that as she could not palpate a lump in the plaintiff’s armpit and the plaintiff did not have a family history of breast cancer, she reassured the plaintiff and advised her to come back if the symptoms recurred. The expert evidence was inconsistent as to whether the plaintiff’s breast tumour would have been detectable by a physical exam at that time.
Held by Barr J that the defendant was not negligent in her care and advice to the plaintiff. The defendant’s notes clearly stated that the plaintiff had declined a breast exam, and as such, Barr J found that the breast exam had been offered to the plaintiff. Barr J further found, on the balance of probabilities, that the tumour was of such a size that it would not have been palpable on a physical exam at the time the plaintiff attended the appointment with the defendant. In light of these findings, it was reasonable for the defendant to reassure the plaintiff and not carry out any further investigation. Barr J dismissed the case against the defendant.
Relief denied.
The plaintiff is 36 years of age having been born on 12th March, 1982. She is a married lady with two children, aged 17 years and 7 years. The plaintiff has breast cancer, with metastatic disease in other parts of her body, namely her lower back, liver and brain. Her prognosis for survival in November 2018 was put at six months.
The defendant is a medical doctor, who at the time of the matters complained of, practiced as a GP in a two doctor practice known as the Hilltop Surgery, Raheny, Dublin.
In essence, the plaintiff's case is that the defendant was negligent in the care and advice which she gave to the plaintiff when she attended the defendant on 24th September, 2014. It is the plaintiff's case that in the three months prior to that visit, she had developed a lump in her left armpit, which she had discovered while in the shower. When it persisted, she became concerned and did an internet search. This revealed the possible connection between a lump in the armpit and breast cancer. The plaintiff was very concerned by this. She made an appointment to see a female GP, as she stated that she expected that a breast examination would be done.
It is alleged by the plaintiff that at a consultation which she had with the defendant on 24th September, 2014, the defendant performed an inadequate examination of her left axilla and did not offer to do a breast examination and, therefore, none was performed. The plaintiff alleges that the defendant simply reassured her that she could not find anything of concern following her examination of the axilla. It is alleged that the defendant was negligent in failing to carry out an adequate examination of the axilla and was further negligent in failing to offer and carry out a breast examination on that date.
The plaintiff further alleges that the defendant was negligent in failing to advise her to return for a review within two/six weeks, due to the fact that while the defendant could not find any lump under her arm on examination, the plaintiff was still able to feel the lump there.
It is alleged that in failing to do these things, the defendant acted negligently and in breach of the National Breast Cancer GP Referral Guidelines, issued by the HSE in April 2009.
In her defence, the defendant accepts that she saw the plaintiff on 24th September, 2014, when the plaintiff had a concern about a lump in her left armpit. The defendant candidly stated that with the exception of two things, she could not recall the details of that consultation. The two things which she did recall, were that the plaintiff said that she did not have any family history of breast cancer and that she had declined a breast examination when offered one by the defendant.
Other than that, the defendant had to rely on her notes, which had been made by her on the computer immediately after the plaintiff left the consultation room on 24th September, 2014. Those notes were in the following terms:-
‘Concerned re? Axillary lump x 3 months
Non tender
o/e no lump palpable in axillae, declined breast exam –
no relevant FHX breast disease.
note long standing eczema o arms
imp - ? resolved LN secondary to ezcema
reassure
TCI if recurs.’
The defendant maintained that her notes represented an accurate account of what had been said and done at that consultation.
To summarise very briefly the events which transpired after September 2014, it is the plaintiff's case that the lump in her left armpit persisted, but due to the reassurance which she had been given by the defendant, she did nothing about it.
On 16th August, 2016, the plaintiff attended a Dr. Mairead Redahan at a different clinic in Raheny. She went there because she was concerned about a lump on her breast, which she had noticed approximately three weeks previously. Dr. Redahan examined her breasts and found hardness in the left breast and inversion of the nipple. She did an axillary examination, which was negative. In view of her findings, she made an urgent referral to the Breast Clinic.
In the following weeks, scans revealed a tumour measuring 5cm in the plaintiff's left breast. An ultrasound scan of the left axilla revealed mild cortical thickening. Due to this finding, a biopsy was carried out of the lymph node, which revealed malignancy in the node of the same type as that found in the breast. The original treatment plan was for the plaintiff to have a mastectomy and nodal clearance, to be followed by adjuvant chemotherapy and radiotherapy for her chest. However, subsequent scans revealed that the disease had spread to other parts of her body. For that reason, the surgery was not done. Instead, the cancer was treated with a variety of chemotherapy and hormone therapy drugs.
Unfortunately, while there was some limited response to hormone therapy, the treatment generally has not been successful. The plaintiff's current prognosis is not good.
As well as the issues of negligence noted above, the court also had to consider a technical issue, which was what was the probable size of the breast tumour in 2014. For the purposes of this introduction, it is only necessary to describe the conflict between the experts on this issue in the briefest terms. The plaintiff's expert, Prof. Bundred is of the view that extrapolating back from the size of the breast tumour found in August 2016, the breast tumour probably measured 1cm/1.5cm in September 2014.
The defendant's expert, Prof. Price, is of the view that the breast tumour was more likely to have been in the region of 0.1cm/0.6cm in 2014.
The key area of difference between the experts arose due to the fact that they each came to a different conclusion as to the appropriate tumour doubling time to be adopted in this case. Prof. Bundred put that at between 100/130 days, whereas Prof. Price put it at 44/80 days. The significance of this issue lies in the fact that there was general agreement that a breast tumour of less than 1cm in size, would not be palpable on clinical examination. Thus, if the tumour in the breast was less than 1cm in size in 2014, it would probably not have been palpable on clinical examination by the GP
The final issue for the court was the question of quantum, which would arise if findings were made in favour of the plaintiff on the liability and technical issues.
What follows is a very brief outline of some of the more relevant events in chronological order:-
2012/2014 The plaintiff attended both the Hilltop Clinic and the Centric Clinic in Raheny in relation to various longstanding complaints, including asthma, eczema and soft tissue injuries arising out of a RTA in 2008.
24/09/14 The plaintiff attended with the defendant for the consultation, the subject matter of these proceedings.
12/12/14 The plaintiff re-attended with the defendant with a complaint concerning her eczema.
Jan 2015 –
Aug 2016 The plaintiff had approximately ten visits to various doctors at both clinics in relation to various complaints. There was no complaint made in relation to her axilla.
16/08/16 The plaintiff attended with Dr. Mairead Redahan in relation to a lump on her breast. Dr. Redahan's note was admitted in evidence without formal proof. It read as follows:-
‘noted lump 3/52 ago.
nipple also appeared different
mastitis 5 years ago.
no fam hx breast ca
o/e:
some inversion left nipple (new)
hardness palpable behind left nipple 12 o'clock position ? lump
no other mass/LN palpable.
plan: refer breast clinic to r/o malignancy.’
23/08/16 Plaintiff seen in Breast Clinic. On clinical examination a lump was palpable at 4 o'clock underlying the areolar complex. The plaintiff was sent for a mammogram and ultrasound scan.
23/08/16 Mammogram...
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