Healthcare Update: High Court Rules BreastCheck Screening Not Negligent
29 June 2020
The High Court has recently ruled against Siobhán Freeney who previously alleged negligence at a BreastCheck mobile unit.
In her High Court decision Ms Justice Hyland reiterated that BreastCheck screenings are not diagnostic and that a subsequent diagnosis with cancer will not always amount to negligence. The Judge made reference to the recent Supreme Court decision on cervical screening in Morrissey v. HSE. In Morrissey the court restated the principles in Dunne v National Maternity Hospital. The test is to determine what standard a reasonable professional of the same skill and qualification would apply in the circumstances. It is then for the court to decide if the professional in question has fallen short of that standard to determine if negligence has been made out.
Ms Freeney’s claim was that her screening was carried out negligently by BreastCheck and that she ought to have been clinically recalled and sent for further examination in June 2015. It was asserted that she should have been recalled for two principal reasons. Firstly, there were features that were suspicious of cancer present on her mammogram taken in June 2015. Secondly, she informed the radiographer of a lump that she was concerned about during her screening. The radiographer made a contemporaneous written note of the concern which Ms Freeney felt should have prompted further investigation.
The radiographer’s note
Ms Freeney claimed that the written note referenced pain she experienced in her right breast and concern about a lump which ought to have prompted clinical recall. In examining this aspect the court referred to the Quality Assurance Guidelines, which set out standards for client care. The Guidelines state that a client will be identified for clinical recall by a radiographer if a significant sign or symptom is identified by either the radiographer or the client. The significant signs or symptoms include; a new lump, skin dimpling/tethering/thickening/inflammation and/or recent nipple inversion. Having heard evidence from Ms Freeney and the radiographer in question, Ms Justice Hyland found, on the balance of probabilities, that Ms Freeney had identified an existing lump and not a new area of concern. As a result, the Guidelines were deemed to have been complied with.
The Guidelines also make it clear that when the radiographer wishes to alert the radiologists to relevant information that is not covered by the category for clinical recall they must do two things. Firstly, they must annotate the client’s images with the word “Note” and secondly, they must document the relevant information on the client’s datasheet. At this stage the radiologists have responsibility for reading any note and will use personal clinical judgement in deciding whether or not any action should be taken in relation to the note. On the basis of the evidence Ms Justice Hyland felt the radiologists had correctly used their clinical judgement to decide not to recall Ms Freeney on the basis that no new lump had been identified. Accordingly the court ruled that the radiologists had acted in accordance with the appropriate standard and the allegation of negligence was not made out.
The standard of approach to screening
Ms Justice Hyland began her analysis by identifying the Dunne Principles as the applicable standard for medical negligence. The question the court must consider is whether a medical practitioner of equal specialist or general status and skill would be guilty of negligence if acting with ordinary care.
Ms Freeney submitted that the so called “no doubt” test applied in Morrissey should be applied in this case. Ms Justice Hyland disagreed stating that Morrissey “does not appear to lay down an immutable rule as to the standard of approach in all screening cases, irrespective of the nature of the act or omission that is challenged. Rather it summarises the standard of approach applicable on the facts in Morrissey having regard to the evidence presented in that case”’ [emphasis added].
The alleged failure at issue was that the radiologists ought to have identified Ms Freeney’s breast cancer from the mammogram. The judge reasoned that in order to find the radiologists guilty of professional negligence it would have to be established on the evidence that they were guilty of such failure as no medical practitioner of equal specialist skill would be guilty of, if acting with ordinary care.
Although there was some debate about the subtlety of findings on the mammogram, there was no dispute between the experts as to the standard of approach to be adopted when interpreting the mammogram. The court noted that mammograms cannot detect all cancers. On hearing extensive expert evidence from both sides Ms Justice Hyland found Ms Freeney’s cancer was a true interval cancer. Interval cancer is the term used to describe cancer which developed between screenings. True interval cancer means that there were normal or benign features in the previous screening mammogram. As a result, the suspicious signs on a mammogram would only be picked up retrospectively with the benefit of hindsight. Therefore, the court concluded that reporting that 2015 mammogram as normal was not negligent.
This judgment provides helpful discussion regarding the appropriate standard of care to be applied in medical negligence and specifically in breast screening. The Dunne Principles remain the authority for determining medical negligence. Critically, Ms Justice Hyland provides some useful clarity around the reach of the so-called “no doubt test” in the Morrissey case. The judgment re-iterates the Chief Justice’s clear message that it is not a legal test at all, but is simply a summary of the factual standard of approach applicable on the facts in the Morrissey case itself. The clear implication is that in any other case, whether related to screening or otherwise, the factual standard (or test) to be applied depends exclusively on the factual evidence presented in that specific case.
The key message is that when considering whether a medical professional has been negligent the court will examine the standard of approach imposed by the profession itself. In the Freeney case the court considered the standard of approach of the profession of radiologists in concluding that a claim in negligence was not made out.
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