by Katie Nugent , Erin Dunleavy February-05-2025 in Healthcare Law
Court of Appeal dismissal of the plaintiff’s claim at the first causation hurdle Crumlish v HSE [2024] IECA 244
Introduction
The Court of Appeal recently gave judgment in a claim arising from an alleged failure by the defendant to detect and diagnose the fact that the plaintiff was suffering from breast cancer when first seen on 4th May 2017. Her cancer was subsequently detected five months later, in or about 12th October 2017. The Court of Appeal upheld the decision of the High Court finding that the case fell at the first causation hurdle. The Court of Appeal outlined that her cancer was not detectable in May 2017 and that the High Court judge was correct in concluding that the only evidence of the existence of a 15mm tumour in the plaintiff’s right breast in May 2017 was the evidence given by the plaintiff’s expert, which was based on tumour doubling time. It was held that once that evidence was rejected, all the other evidence concerning breach of duty became irrelevant. Mr Justice Noonan delivered the judgment on behalf of his colleagues Ms Justice Power and Mr Justice Binchy and expressed sympathy to the plaintiff on her significant illness and noted that it was fortunate that she has responded well to treatment.
Facts
The plaintiff claimed that at the end of March 2017 as the plaintiff was just turning 35, she felt two hard lumps in her right breast, described as being comparable in size to a pea and a peppercorn respectively. The plaintiff was referred for assessment to Letterkenny University Hospital where she was seen on 4th May 2017 by a consultant breast surgeon and referred to a radiologist who reported ‘multiple small cysts up to 12mm’.
A number of months later, the plaintiff found a lump under her armpit and another lump further down and was referred back to Letterkenny University Hospital where she underwent further examination, radiological assessment and a biopsy which confirmed that she had breast cancer. The plaintiff underwent chemotherapy, had invasive surgery and then radiotherapy.
The plaintiff alleged that had her cancer been detected earlier, then her treatment would not have been as extensive, and that same has had significant permanent repercussions for her.
High Court
In the High Court, the plaintiff’s case was focused on the rate at which the tumour was likely to have grown and based on that it was alleged that the cancer was detectable in May 2017. The plaintiff’s expert oncologist referred to an academic paper by Peer et all (1993) which considers the doubling time for breast cancer tumours in women. His conclusion was based on his opinion that the plaintiff had a likely doubling time of 45 days so that working back from the size of the tumour at diagnosis, this would give a tumour of 15mm in May corresponding with what had been measured when she initially presented. This was strongly disputed by the defendant’s oncology expert who stated that the Peer paper did not provide a reliable guide for establishing tumour doubling time and rather that there was no established reliable scientific basis for predicting the size of a tumour on the basis of one measurement, as at diagnosis in October 2017, to determine the probable size of the tumour the previous May.
In terms of the plaintiff’s argument that there was a breach of duty on the part of the defendant not to aspirate the lump in May 2017 when she first presented, the plaintiff’s expert was asked about the NCCP Guidelines of which he was unaware. These guidelines inform the approach in this jurisdiction to triple assessment and state that ‘cysts are only aspirated if they are symptomatic or if patients request aspiration. Asymptomatic cysts do not require aspiration.’
In the High Court, the judge found no convincing reason had been put forward in respect of the potential doubling time other than the fact that it was the only figure that tallied with the plaintiff’s claim and held that it suffered from confirmation bias in this regard.
The High Court dismissed the claim, essentially on the causation ground finding that the plaintiff’s cancer was not detectable in May 2017. Accordingly, the High Court found it unnecessary to consider the issue of breach of duty.
Court of Appeal
The Court of Appeal observed that the central issue in the case was accordingly clear, that the plaintiff alleged that the lump, measured clinically at 15mm, and radiologically as 12mm, was not a cyst but a cancerous tumour. The Court of Appeal stated that the onus of proving this fact rested at all times on the plaintiff and if the plaintiff failed to establish that the lump was malignant, then clearly any alleged failure on the part of the defendant to stick a needle into it became irrelevant, as the judge found.
The plaintiff, in her appeal, argued that the High Court was wrong to treat the issue of doubling time as dispositive of the plaintiff’s claim and in doing so, ignored the evidence of the plaintiff’s other experts and the plaintiff herself on critical issues. She also argued that the judge erred in her treatment of the expert evidence and that the HSE’s defence was not properly or fairly conducted.
At the outset, Mr Justice Noonan felt that it was necessary to set out how appellate courts approach their task where there is criticism of the trial judge for failing to engage appropriately or at all in with the evidence in reaching their conclusions. He stated that since Hay v O’Grady [1992] IR 210 findings of fact made by a trial court will not be disturbed on appeal if they are based on credible evidence.
He noted that complaints of non-engagement with evidence are commonly made by appellants as in this case but that these must be approached cautiously by an appellate court and the threshold for success is high. In this regard, Mr Justice Noonan referred to the Supreme Court decision of The Leopardstown Club Limited v Templeville Developments Limited & Anor [2017] IESC 50. The Court of Appeal were satisfied that the trial judge was correct in concluding that the only evidence of the existence of a 15mm tumour in the plaintiff’s right breast on the 04 May 2017 was the evidence given by the plaintiff’s expert which was based on tumour doubling time. It had been observed by the Court of Appeal that the evidence in respect of doubling time underpinned the evidence of the plaintiff’s other experts which was predicated on the presence of a 15mm tumour in May.
The Court of Appeal stated that once this evidence was rejected for the detailed reasons given by the trial judge, all other evidence concerning breach of duty became irrelevant, as the judge found and as the plaintiff’s counsel had conceded at the outset. The Court of Appeal dismissed the plaintiff’s appeal.
Comment
This decision emphasises the need for caution in respect of expert evidence and is a reminder of the comments made by Noonan J in Duffy v McGee [2022] IECA 254 when he stated that ‘the overriding duty of the expert is owed to the court and includes the duty to provide an objective opinion. Objectivity, by definition, requires that one has regard to both sides of the case. A central component of the duty of the expert is to ascertain all relevant facts, whether they support the client’s case or not.’
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About the Authors
Katie Nugent
Katie is an Associate on the Healthcare team at Hayes solicitors.
She specialises in the defence of medical and dental claims taken against both public hospitals and private clinicians. Prior to joining Hayes solicitors, Katie worked for four years in the area of insurance defence litigation with a particular focus on personal injury claims. She also trained in general practice with a particular focus on plaintiff personal injury claims.
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Erin Dunleavy
Erin is a solicitor in the Healthcare team at Hayes solicitors. Erin advises clinical practitioners and their indemnity bodies on the defence of medical negligence claims.
Erin joined Hayes solicitors LLP in September 2020 as a trainee and qualified in 2023.