A woman with advanced breast cancer has secured an urgent hearing of her action against the Health Service Executive over an alleged delay of some three months in diagnosing her cancer which, she claims, has altered her prognosis and life expectancy.
The case will be heard on January 11th, Mr Justice Kevin Cross directed.
The woman, aged in her late 30s, claims her cancer was diagnosed in November 2016, five weeks after she gave birth to a baby girl, and some three months after a consultant surgeon who examined a lump on her breast on August 22nd, 2016 considered it was “clinically benign” with follow-up scheduled after her pregnancy and delivery.
She claims the surgeon carried out a brief physical examination of her breast and negligently failed to carry out, or arrange for, radiology or cytological examination. She also alleges there was failure to have regard to her family history of breast cancer, including the death of her mother in her 50s of breast cancer.
‘Eminently treatable’ tumour
Had the cancer been diagnosed on August 22nd, the woman, then pregnant, would have had a smaller and “eminently treatable” tumour with a 90 per cent five-year survival rate, it is claimed.
It is claimed the tumour would have been no more than 20mm in August 2016, there would have been no lung metastases and, on the balance of probabilities, there would have been no lymph nodes involved. Because of the delay, the woman was diagnosed with a significantly larger 3cm primary tumour, a Grade II, possibly Grade III cancer in November 2016, it is claimed.
In its defence, the HSE has admitted breach of duty for delay in the woman’s treatment but has not made admissions about the extent of the delay. It has also denied the woman’s treatment and/or prognosis would have been different in the absence of delay or that she suffered the alleged injury, loss and damage by reasons of negligence or breach of duty on its part.
The case was mentioned before Mr Justice Cross on Thursday when Des O’Neill SC, instructed by Callan Tansey solicitors for the woman, said, arising from her condition, it was unfortunately necessary to seek an immediate trial date.
The judge said he would list it for hearing on January 11th but he told Luán O Braonáin SC, for the HSE, if the defence had a difficulty with that date, they could bring that to the court’s attention.
In her case, the woman claims, when she was several months pregnant in August 2016 and attending a hospital for antenatal care, she noticed a lump in her right breast when she was having a shower and was concerned.
Brief examination
On August 18th, 2016, she told her consultant obstetrician about the lump who was also concerned and he referred her to be seen urgently by a consultant surgeon. When she attended that surgeon four days later, she claims he carried out a brief examination and had not performed or arranged radiology or cytological or histopathological examination of the lump.
It is claimed he confirmed there was a lump above and lateral to the right nipple but he concluded it was “clinically benign and consistent with a benign fibrocystic tissue change probably associated with hormonal changes of pregnancy”.
The woman claims the consultant advised her he would make an appointment for the breast clinic at University College Hospital Galway (UCHG) in November 2016. The woman said she felt very reassured by that, her pregnancy continued and her daughter was born in October 2016. After delivery, the woman said she felt pain in her right breast and a non-consultant hospital doctor expressed concern and indicated he would try to expedite a consultation with an oncologist at UCHG.
The woman was seen at the Galway hospital on November 17th when she was found to have a 3mm mass above and to the right of the aureola, with multiple enlarged lymph nodes in the right axilla. A biopsy demonstrated an invasive ductal cancer Grade II, possibly Grade III. It is claimed, while the disease is sensitive to chemotherapy, and she had been advised to undergo a treatment regime known as Cleopatra, the delay in diagnosis meant that treatment is about prolonging life and is not curative and her life expectancy has been greatly reduced.
