A woman has lost her appeal seeking a retrial of her claim that the Health Service Executive (HSE) failed to promptly diagnose her cancer.
Catriona Crumlish, who recovered following invasive treatments, alleged in her appeal that the High Court ignored key evidence that established her tumour diagnosed in October 2017 had been detectable when she first attended Letterkenny University Hospital five months earlier.
The HSE denied there was any detectable cancer during the May 2017 visit and contended the High Court had correctly dismissed the personal injuries claim.
On Tuesday, the Court of Appeal dismissed Ms Crumlish’s appeal, saying the case “failed at the first causation hurdle”.
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Ms Crumlish (42) sought damages, including €3.6 million in special damages, for injuries she alleged were caused by the Letterkenny hospital’s alleged failure to detect her breast cancer in May 2017, when she was aged 35.
Her central claim was that a pea-sized/15mm lump assessed in May was cancer, rather than a cyst, and that she should have been referred for further investigations that would have detected her cancer at that point.
Ms Crumlish, of St Finian’s Park, Moville, Co Donegal, had been examined by consultant breast surgeon Mr Michael Sugrue, who noted a pea-sized lump and could not palpate a smaller, peppercorn-sized lump. He referred her to radiologist Dr Conal Mac a Bhaird who reported “multiple small cysts up to 12mm”.
Mr Sugrue reassured her she had cysts and, while they might change size, she should not worry.
Three and four months later she found a lump under her armpit and a second lump lower down. She was referred back to the Letterkenny hospital where, on October 9th, Mr Sugrue found a deeper lump in the same breast quadrant as the previous lumps.
Following radiological assessment, she was referred for a biopsy and, on October 12th, Mr Sugrue confirmed she had fast-growing cancer. She began chemotherapy a month later and, in April the next year, had invasive surgery and then radiotherapy.
Her case in the High Court focused on the growth rate of breast tumours, with her legal team citing an academic paper in support of their theory that her cancer had been detectable in May and would have doubled in size before her diagnosis in October 2017.
The HSE, represented by barristers Micheál Ó Scanaill and Michael Binchy, strongly contested the paper’s data and conclusions.
The High Court’s Ms Justice Mary Rose Gearty concluded that the cancerous tumour likely doubled at a faster rate than contended by the plaintiff, so the pea-sized lump assessed in May was probably a cyst, as was reported by the radiologist at the time, rather than the tumour, as Ms Crumlish contended.
The judge said all of the medical witnesses agreed the tumour probably was present in May. If so, it was probably undetectable at that point, she held. She found Mr Sugrue to have been meticulous in his approach to clinical assessment.
Writing the judgment for the three-judge Court of Appeal, Mr Justice Seamus Noonan said the plaintiff’s primary complaint concerned the High Court’s conclusion that the evidence related to cancer doubling time was the “only evidence” suggesting a cancer tumour was missed in May.
Mr Justice Noonan and his colleagues Ms Justice Ann Power and Mr Justice Donald Binchy were satisfied that once the High Court discounted the cancer doubling time evidence, all other evidence concerning an alleged breach of duty by the HSE became “irrelevant”.
The court dismissed the appeal and gave a provisional view that the HSE should be awarded its legal costs.
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