The Court of Appeal has dismissed a woman’s appeal against the dismissal of her medical negligence claim against the Health Service Executive, finding she had not proved that a cancerous tumour was detectable when she attended Letterkenny University Hospital in May 2017.
In a judgment delivered on 15 October 2024, Mr Justice Noonan, with whom Ms Justice Power and Mr Justice Binchy agreed, said the claim failed at the first causation hurdle. The court did not decide whether the HSE breached its duty of care because that issue only arose if the plaintiff established that the cancer was detectable at the earlier examination.
The plaintiff, who lives in County Donegal, said she felt two lumps in her right breast in March 2017. At the hospital on 4 May, a consultant breast surgeon recorded a lump at the 8 o’clock position, 10cm from the nipple, and assigned it a clinical score of S3. Ultrasound identified multiple small cysts, including one measured at 12mm, and the radiologist assigned a benign score of R2. No biopsy was performed.
The cancer was diagnosed after the plaintiff returned to the hospital in October. The principal tumour was described in the judgment as measuring 34mm, with another focus measuring 11mm. She argued that the lump assessed in May was the same cancer and that further testing or a biopsy should have detected it. The HSE’s case was that the May lump was a cyst and the cancer detected later was in a different position.
The High Court found that the plaintiff had not established that the May lump was a 15mm cancer or that it was the same lesion identified in October. It accepted that a 12mm cyst probably caused the lump and found that any tumour present in May was probably undetectable then.
On appeal, the plaintiff challenged the High Court’s treatment of expert evidence, the location of the October tumour and the fairness of the defence case. The Court of Appeal rejected those grounds. It said the trial judge was entitled to prefer evidence that the main October tumour was at or near the 6 o’clock position over evidence placing it at 8 o’clock, and found no basis to overturn her assessment of the witnesses. The court also held that a procedural rule limiting expert evidence did not allow the judge to disregard unobjected-to evidence, but concluded that this error did not affect the result.
The Court of Appeal dismissed the appeal. The separate appeal concerning the High Court costs judgment fell away because no independent grounds were advanced and it depended on the main appeal succeeding. The court gave the plaintiff 14 days to submit written arguments against the proposed order that she pay the HSE’s appeal costs, with the HSE then given a similar period to respond. The judgment states that the costs order would be made in the proposed terms if no submissions were received.