Catriona Crumlish v Health Service Executive – Court of Appeal

Introduction

On Oct. 15th, The Court of Appeal upheld the High Court decision against Caitriona Crumlish in her claim against Letterkenny University hospital.

The plaintiff alleged that there was a failure to detect and diagnose breast cancer in May 2017 resulting in an alleged delay in diagnosis of five months. The plaintiff sought in excess of €3.6 million in damages. The High Court claim was dismissed on the ground that the cancer was not detectable in May 2017.

The High Court proceedings focused on the expert evidence regarding the growth rate of the tumours and whether they were detectable in May 2017.

The plaintiff’s oncology expert relied on the academic paper by Peer et al from 1993 on the doubling time for breast cancer tumours in women. The expert’s conclusion was that the plaintiff experienced a doubling time of 45 days which correlated with the change in tumour size from May to October.

The defendant’s oncology expert was strongly of the view that there was no established reliable scientific basis for predicting the size of a tumour on the basis of one measurement only, in this case in October 2017, in order to determine the probable size of the tumour in the previous May 2017. The sharp disagreements between the opposing experts became the focus of the Judgment.

The High Court Judge, Ms Justice Mary Rose Gearty, was critical of the plaintiff’s expert’s evidence and the evident confirmation bias, highlighting that the 45-day time frame had no basis other than to complement the plaintiff’s claim, along with his ignorance of the NCCP Guidelines. The decisive issue in finding for the defendant was that there was not sufficient evidence to establish the likely presence of a malignant tumour in the plaintiff’s right breast in May 2017.

The Court of Appeal

The decision was appealed to the Court of Appeal and the three Judge Court dismissed the Appeal on the basis that the plaintiff’s case had failed at the first causation hurdle.

The essence of the plaintiff’s Appeal was that (1) the High Court was wrong to treat the issue of doubling time as dispositive of the claim, and the Judge erred in her treatment of the expert evidence, and (2) the HSE’s defence was not properly or fairly conducted.

The plaintiff’s expert’s evidence was no longer directly relevant to the Appeal, as it was belatedly abandoned, but its significance remained, as it was deemed to underpin the evidence of the additional experts which were predicated on the presence of a tumour in May.

The plaintiff came under criticism for their lengthy Notice of Appeal, where the sixty eight grounds of Appeal were narrowed to ten, three of which were not actively pursued.

The Appeal contained complaints of non-engagement with the evidence by the Trial Judge, but these did not meet the threshold as illustrated by MacMenamim J in the Leopardstown Club Limited v Templeville Developments Limited. The Trial Judge was not in error in their assessment of the evidence presented.

Decision

Mr Justice Seamus Noonan and his colleagues, Ms Justice Ann Power and Mr Justice Donald Binchy, were satisfied that once the High Court rejected the doubling time evidence as put forward by the plaintiff’s oncology expert, all other evidence concerning an alleged breach of duty by the HSE became “irrelevant”. They found that the matter was handled correctly and appropriately by the Trial Judge.

Turning to the defence’s evidence, the Court held that while the fact that the cancer was an “interval cancer” had not been pleaded by the defence before the trial commenced, it recognised that the defence had made it clear that it would be contended that there was no abnormality on the May imaging.

The Court dismissed the Appeal and gave a provisional view that the HSE should be awarded its legal costs.

Conclusion

A clear takeaway from this case is the careful use of expert evidence. The plaintiff’s expert came under criticism from the Judge for their confirmation bias in selecting a doubling time calculation to suit the plaintiff’s claim, together with the over reliance on the 1993 peer paper which was outdated and limited in its study. The Judgment makes it clear that estimating tumour growth is not an exact science. It is a welcome reminder that the role of an expert is to provide independent advice to the Court rather than a position that is tailored to the party that engaged them.

The Court also highlighted that if a party is taken by surprise in the manner suggested by the plaintiff, it was open to her to make an adjournment application in respect of same at Trial, a remedy which she had not availed of.