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High Court dismisses medical negligence case against BreastCheck

By: Hilda O'Keeffe | Posted on: 06 Aug 2020

The High Court has recently dismissed a claim alleging negligence against BreastCheck screening service resulting in a delay in diagnosis of breast cancer. 

The case was heard in the High Court over 12 days before Ms. Justice Niamh Hyland.

Issues

The Plaintiff asserted that there were suspicious irregularities in the mammographic images carried out by BreastCheck which warranted further investigation and that the Plaintiff’s clinical symptoms should have prompted clinical recall and assessment.

Grounds for Dismissal

The Plaintiff’s claim was dismissed, and Judge Hyland ruled that:

  • The Plaintiff’s cancer was a true interval cancer.  Judge Hyland concluded that the screening mammogram showed normal or benign features and found that the reporting of the mammogram by the BreastCheck as normal was not negligent.

  • BreastCheck acted appropriately in not identifying the Plaintiff for clinical recall following screening, having regard to the Plaintiff’s clinical presentation and acted in accordance with the guidelines in place at the time.

Legal Standard

Judge Hyland noted that the legal standard on professional negligence was recently restated by the Supreme Court in Morrissey v. HSE [2020] IESC 6.  Clarke C.J. 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 of the same skill and qualification would apply.  Clarke C.J observed that the test in Dunne v National Maternity Hospital remains the basis for identifying the legal standard of care by reference to which a claim in clinical negligence is to be assessed. 

Experts

Judge Hyland also ruled that:

  • The fact that a factual witness has a professional qualification does not mean the witness is in substance an expert witness dressed up as a factual witness.
  • The Defendant, the HSE, employ a very significant proportion of medics in Ireland and “a blanket exclusion of them all from giving expert evidence would be disproportionate to the object to be achieved i.e. ensuring that witnesses giving evidence are independent and objective. Judge Hyland was satisfied that employment by the HSE did not affect the objectivity of the expert’s evidence.
  • It would be inappropriate, unfair and liable to lead to an unreliable result if an expert from one area was permitted to judge the behaviour of a non-equivalently situated professional and evidence from non-equivalent professionals was not allowed.
  • Judge Hyland was critical of the Plaintiff’s expert Radiologist for a number of reasons, including the fact that he did not meet the criteria for practice as a Breast Screening Radiologist.

Conclusion

Ultimately, this judgment is extremely helpful in any consideration of the appropriate standard of care to be applied in medical negligence cases and in particular in cases involving breast screening.

It has been confirmed that the Dunne Principles remain the standard for clinical negligence. It is clear from this judgment and the judgment in Morrissey v HSE that in every clinical negligence case that the Court must analyse the applicable standard of approach having regard, inter alia, to expert evidence and the standards of the relevant profession.

Ms Justice Hyland noted that BreastCheck screenings are not diagnostic and that a subsequent diagnosis with cancer will not always amount to negligence.    As BreastCheck and the Health Service Executive were not found to be negligent, the case in its entirety was dismissed.

If you would like any further information on this judgment or the issues raised, please contact our partner Hilda O'Keeffe on hilda.okeeffe@ckt.ie

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