Woman loses HSE injury case

NOW TAKING TIME TO CONSIDER HIGH COURT RULING

A GOREY WOMAN has lost a personal injury case against the HSE over an alleged failure to advise and diagnose cancer at the earliest possible stage following a routine check-up at a local Breastcheck mobile unit in June 2015.

Siobhán Freeney (59) described the trial as ‘very long and complex’ and said that she will now need to sit down and take time to consider the verdict.

Ms Freeney’s mammogram was reported as clear in June 2015, but later in December 2015 she was diagnosed with having breast cancer.

It was alleged that the radiographer failed to fully and accurately record the conversation had with Ms Freeney in a note for other radiologists to consider for recall, after the court heard a note read ‘History of cysts. Lady feels a cyst in the right breast. Couldn’t tolerate compression on right breast’.

The judge concluded it was ‘a true interval cancer’, showing normal or benign features in the screening and therefore reporting as normal was not negligent.

The judge dismissed the claim.

GOREY WOMAN Siobhán Freeney has lost her personal injury case taken against the HSE over the alleged failure to advise and diagnose treatment for cancer at the earliest possible stage following a routine check-up at a local Breastcheck mobile unit in June 2015.

The high court case began in February of this year, after the HSE denied all claims made and the judgment was given on Friday last, May 29, by Ms Justice Niamh Hyland.

Ms Freeney went for a screening at the mobile Merrion Unit and had a mammogram in June 2015 that was reported as clear, but later in December 2015 she was diagnosed with having breast cancer after identifying symptoms and going to her GP who referred her for assessment.

BreastCheck literature tells women if they have any symptoms that they are concerned about, they should go to their GP and, during the consultation, Ms Freeney complained of having pain in her right breast that she suspected was a cyst, as she had a history of cysts since as far back as 2010.

The radiologist, who it was alleged by Ms Freeney that in drawing up the note for the radiologists to consider, failed to fully and accurately record the conversation.

The radiologist gave evidence via video-link from Australia and said that she made a note of this interaction with the patient and the note labelled ‘N’ read ‘History of cysts. Lady feels a cyst in the right breast. Couldn’t tolerate compression on right breast’.

The mammogram in June was reported as clear, after it was seen by two radiologists, working independently of each other, who gave evidence in court that they read Ms Freeney’s images and did not identify any suspicious features and so did not believe a clinical recall was necessary.

The Breastcheck radiologist confirmed that she followed the guidelines and that during a standard consultation, she goes on the basis of what the patient tells her on the day.

She also indicated the there may be a different approach depending on whether what’s identified is a cyst or a lump, as if it was a new lump she would ask when the patient felt it so there is a time line.

Explaining is not a doctor or a physician, just an imaging professional, and so what she writes down is dependent on what the patient tells her.

Ms Justice Hyland concluded that Ms Freeney agreed that the contents of the note reflected what she had said during the consultation.

Witnesses on behalf of Ms Freeney made the argument that because she identified that she felt a cyst, she ought to have been clinically recalled, based on the idea that a woman cannot know whether what she is identifying, as a cyst might be a suspicious lump or a potentially cancerous cyst.

BreastCheck recall guidelines for cysts visible on the mammogram when there’s a new finding, and the judge accepted the evidence that neither the woman herself nor any doctor can, simply from palpating a mass, decide whether it is a lump or a cyst.

A doctor on behalf of the defendant said that when a woman comes into a mobile unit and if she feels a new lump, she is usually very anxious to communicate that as early as possible to the radiographer. She also said that in breast screening they don’t want to recall simple cysts as they are not usually cancerous and there is a very low incident of cancer.

Ms Freeney gave evidence in person over the course of three days, and the judge noted that she gave slightly different versions of her experience when having the mammogram but the core components of her evidence did not change. She said that she told the radiographer of her history of cysts, and she then referred to the pain she felt during compression of the right breast, explaining that she had lumpy breast tissue and she was always conscious of the upper right breast area.

She said that she told the radiographer she was very concerned about a lump in her upper right area.

‘Then we discussed the fact that there had been a lump there, a look at it some years earlier. So for me the lump wasn’t necessarily new, but I had a renewed concern over it because of the pain,’ said Ms Freeney.

The judge described this exchange as of considerable significance which led to the issue of breast density being brought up during the case.

The judge said that she had to consider Ms Freney’s history here to determine whether she has dense breasts or very dense breasts, as the density of breasts makes it more difficult to see evidence of cancer on a mammogram, making it more difficult to diagnose.

Breast density refers to the varying amounts of fat present, which appear as dark areas on mammograms, and other types of tissue which appear as white on mammograms.

The sensitivity of mammography detecting cancer in women with almost entirely fatty breasts is 88% as compared to 69% for women with heterogeneously dense breasts and 62% for women with extremely dense breasts.

But both sides agree that density makes the detection of breast cancer on a mammogram more difficult, which the judge agreed made it more difficult to detect the presence of cancer in June 2015.

Under Breastcheck guidelines, a clinical recall for reasons unrelated to the results of the mammogram will only be made for significant signs and symptoms that are known risk factors for cancer, either observed by the radiographer or made known by the woman being screened such as a new lump, skin dimpling/tethering/inflammation or recent nipple inversion.

In her judgment, Ms Justice Hyland said that Ms Freeney was ‘undoubtedly very breast aware’ having gone for mammograms at two yearly intervals and checking her breasts regularly. But, based on medical evidence, found that Ms Freeney’s cancer was ‘a true interval cancer’ and showed normal or benign features in the screening mammogram of June 2015 and therefore reporting the mammogram as normal was not negligent.

She said that the defendant acted appropriately in not identifying the need for a clinical recall following her screening in June 2015 and dismissed the claim.

Summarising the evidence, the judge found that Ms Freeney identified what she felt was an ‘existing issue’ and concluded that the radiographer accurately recorded the substance of what Ms Freeney told her, correctly making a note of same rather than making a clinical recall since under the guidelines.

The judge was critical of one witness on behalf of Ms Freeney, finding his evidence to be inconsistent, incomplete and lacking in clarity. There was also some controversy about a minute written by Professor Ann O’Doherty, director of BreastCheck, recording a meeting she had in January 2016, when she told Ms Freeney that she did not have dense breasts, but Professor O’Doherty was not called to court to give evidence.

Liability for substantial costs of action by Siobhán Freeney iregarding the case is to be decided at a later date.