The High Court has rejected an application to restrict evidence from a radiologist accused of negligently reading mammography slides, ruling that she may testify as a factual witness about what she saw and how she interpreted the images.
The ex tempore ruling by Ms Justice Hyland was delivered on 3 March 2020 in proceedings brought by Siobhán Freeney against the Health Service Executive. The case concerns an alleged negligent review of mammography slides in June 2015. The application initially covered parts of the evidence of five witnesses but had narrowed to Dr Coffey.
The plaintiff’s application concerned Dr Coffey’s interpretation of the images. It did not seek to exclude her other evidence. The judge said she was not addressing a separate allegation about failure to refer the plaintiff for further assessment, including ultrasound, in light of her symptoms on 17 June 2015.
The plaintiff argued that Dr Coffey’s image interpretation would amount to expert evidence, although she had not been identified as an expert or provided an expert report. The plaintiff also argued Dr Coffey could not recall how she reviewed the images because she read about 20,000 a year.
Justice Hyland accepted that Dr Coffey could not testify as an expert witness. But she rejected the claim that the radiologist’s professional qualifications made her an expert witness “dressed up” as a factual witness. Dr Coffey could give evidence about her clinical findings, observations and actions, including what she saw, how she interpreted the images and why she categorised them in a particular way. The judge said objections could be made if her testimony strayed into expert opinion.
The judge also rejected the argument that concerns about recall should prevent Dr Coffey from testifying in advance. Medical records could assist her memory, and the weight to give her evidence would be assessed after she had given it. The plaintiff could make submissions at the end of the case about the weight of that evidence, including on grounds of recall.
Justice Hyland therefore rejected the application to limit Dr Coffey’s evidence as a factual witness, subject to the ordinary requirement that it be relevant. The ruling decided only the limits on her testimony at this stage; it did not determine whether the alleged negligence occurred. The judgment set out the applicable medical negligence test but made no final finding on liability.