Court of Appeal dismisses Plaintiff’s claim based on cancer doubling time evidence

Catriona Crumlish v Health Service Executive [2024] IECA 244

This High Court claim seeking damages in excess of €3.6 million was initiated by Ms Crumlish (‘the Plaintiff’) who alleges that the Health Service Executive (‘HSE’/the Defendant) caused a delayed diagnosis of her breast cancer.

The High Court Judgment, delivered on 14^th March 2023

The Plaintiff was referred to Letterkenny University Hospital by her GP in May 2017, for investigation of two lumps, comparable to the sizes of a pea and a peppercorn, located in her right breast. Ultrasound and Mammogram investigations performed confirmed the presence of multiple small cysts in the Plaintiff’s right breast, measuring up to 12mm. No further treatment was recommended at this stage. The Plaintiff, subsequently, discovered a lump under her armpit in August 2017 and a second lump below her armpit, in September 2017. The Plaintiff was referred back to Letterkenny University Hospital, where on 9^th October 2017, a lump was discovered in the same quadrant of the Plaintiff’s right breast, where the cysts were previously confirmed. Having undergone radiological investigations and biopsy, the Plaintiff was diagnosed with breast cancer, which required surgical removal followed by radiotherapy. The Plaintiff responded well to her treatment and is now cancer free. Notwithstanding this, the Plaintiff claimed that had her cancer been detected in May 2017, she would have required lesser extensive treatment.

The Plaintiff argued that the pea sized lump, found in May 2017, was the one and same cancerous lump, found in October 2017, which at this stage, measured 35mm. The Plaintiff’s expert Oncology evidence maintained that, on the basis of a 45-day doubling time, the Plaintiff’s lump in May 2017 would have measured 15mm and therefore, would have been discoverable on radiological imaging. The HSE’s expert Oncologist maintained that the cyst found in May 2017 and the cancerous lump found in October 2017 were two separate entities, which have distinctly different appearances on radiological investigations and which were located centimetres apart. Ms Justice Gearty rejected the Plaintiff’s oncology evidence in respect of the 45-day doubling time (which was referenced in academic literature) on the basis that no convincing reason was provided for this doubling time, other than the fact that this time period tallied with the Plaintiff’s claim. Ms Justice Gearty considered that this view in respect of the doubling time, was made on the basis of confirmation bias.

Whilst it was accepted that the Plaintiff had cancer in May 2017, the Plaintiff’s claim was dismissed on the grounds that the Plaintiff was unable to prove that cancer was detectable. In these circumstances, the High Court did not consider it necessary to consider the breach of duty limb of this claim, which in essence, concerned the failure to perform a needle aspiration of the Plaintiff’s lump, in May 2017.

The Court of Appeal Judgment, delivered on 15^th October 2024

The Plaintiff appealed the dismissal of her claim and sought a retrial on the basis that Ms Justice Gearty had erred in her treatment of the expert evidence. The appeal focussed on the approach to the Plaintiff’s expert oncology evidence relating to the 45-day doubling time and also, that the HSE’s defence was not properly or fairly conducted.

Mr Justice Noonan, in the Court of Appeal judgment delivered on 15^th October 2024, dismissed the Plaintiff’s appeal on the basis that there was no suggestion that the trial Judge overlooked the Plaintiff’s oncology evidence, to render their conclusion unsound. Instead, Mr Justice Noonan highlighted that the trial Judge accepted the evidence put forth by the HSE. Accordingly, once the Plaintiff’s expert evidence as to the existence of a 15mm tumour on 4^th May 2017 was rejected, all the other evidence concerning breach of duty, was irrelevant.

The Plaintiff’s claim that the HSE’s case was not properly or fairly conducted was also dismissed and the Court of Appeal noted that the defence position was clear, that there was no abnormality on the imaging performed on 4^th May 2017. The Court of Appeal also highlighted that, rather than seeking a retrial on the grounds of unfairness after the claim has concluded, if developments arise during the course of trial that take a party by surprise, an adjournment is usually sought.

The Plaintiff’s appeal was, accordingly, dismissed.

If you would like further information, please contact Ciara Fitzpatrick or another member of the Healthcare team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.