On 19 March 2020, in Morrissey & Anor v Health Service Executive & Ors  IESC 6 the Supreme Court delivered a unanimous five judge decision following an appeal by the HSE and two laboratories in respect of a High Court judgement delivered by Cross J in May 2019, concerning the proper “standard of approach” to be adopted by cervical cancer screeners in Ireland.
This "leapfrog appeal" to the Supreme Court by-passed the Court of Appeal in circumstances where an authoritative decision of the Supreme Court on the appropriate test for negligence was required as well as having regard to the personal circumstances of Mrs Morrissey.
The Supreme Court dismissed the appeal from the High Court and confirmed the proper approach to be adopted by a screener and will have important implications for other cervical cancer cases and the work of the CervicalCheck Tribunal going forward.
The case was brought by Mrs Morrissey and her husband, Mr Morrissey, in the High Court and concerned cervical smears which were taken under the CervicalCheck screening programme in 2009 and 2012 and tested by Quest Diagnostics Ireland Ltd ("Quest") and Medlab Pathology Ltd ("Medlab"). These smear tests were wrongly interpreted as being “normal” by Quest and Medlab. On this basis, no diagnostic tests were subsequently undertaken.
In 2014, Mrs Morrissey was diagnosed with an aggressive form of cervical cancer. This required invasive treatments and she has been left with a very limited life expectancy. In May 2018, Mrs Morrissey was first informed that a 2014 review showed that two smears were reported incorrectly.
The High Court
In his High Court judgement, Cross J confirmed that the classic statement of the applicable legal standard of care in the context of medical negligence cases was as set out by Finlay CJ in Dunne (an infant) v National Maternity Hospital  IR 9 as follows:
"1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant…"
Cross J also confirmed that where the judge is required to make findings of fact, there were three questions which the judge had to answer as set out in Penney Palmer & Canon v East Kent Health Authority  Lloyds Rep Med 41:
"(i) What was to be seen in the slides?
(ii) At the relevant time could a screener exercising reasonable care have failed to see what was on the slide?
(iii) Could a reasonably competent screener aware of what a screener exercising reasonable care will observe on the slide treat the slide as negative."
The Court also noted that the decision in Penney Palmer went further than the three questions referred to above insofar as it endorsed the opinions of the expert witnesses in that case who were of the view that "if there was any doubt in the mind of a screener as to whether the slide was normal, he or she should not classify it as negative. A slide should not be classified as negative unless the screeners had 'absolute confidence' that it was so."
Cross J determined that before applying the Dunne principles, the Court must consider what was on the slides that the screener was reviewing, a question of fact which must be determined on the balance of probabilities. Following such a determination, Cross J held that the Court must then consider the Dunne principles, in reference to the screener‘s practical obligation of "absolute confidence", in the analysis of the slides. In this regard, he noted that:
"… absolute confidence is the screener's practical duty in relation to their analysis of what is on the slide and indeed the adequacy of the sample, and the legal issue is whether or not they have carried out that duty in accordance with the Dunne principles. These extra tests set out in Penney Palmer are combinations of factual and legal matters, but I accept that a screening programme especially one such as in Ireland which does not have annual retesting, is inherently deficient if screeners ascribe as normal, results in which they are in any doubt. Accordingly, to ascribe as normal, a slide which the screener has any doubt of that fact even if he legitimately believes it to be normal on the balance of probabilities, is to fall below the Dunne standards required of that screener. Whether the screeners were right not to have any doubt is a matter to be assessed at law in accordance with the Dunne principles.
In other words, if there is any room for doubt that the slide was normal and the screener ascribes a normal result to the slide then the screener is in breach of the Dunne principles as he has been guilty of such failure that no professional scanner of equally specialist or general status and skill would have been guilty of if acting with ordinary care. A screening programme cannot operate safely if screeners are left to judge the slides and whether they are safe merely on the balance of probabilities…"
The High Court applied the above standard in finding that the two laboratories and the HSE had failed in their duty in respect of the treatment of smear slides pertaining to Mrs Morrissey, taken under the CervicalCheck screening programme.
The High Court accepted that had the screeners identified a pre-cancerous condition at the time, curative treatment through the surgical removal of the cancerous cells could have been achieved. The High Court made a finding of medical negligence against the HSE, Quest and Medlab and awarded €2.1 million to Mr and Mrs Morrissey on foot of the misreading of Mrs Morrissey’s cervical smear slides. This decision was then subsequently appealed to the Supreme Court.
The Supreme Court
In hearing this appeal, the Supreme Court was concerned with five particular legal issues to be resolved.
1. Standard of Approach
In his judgement, Clarke CJ confirmed that the principles set out by Finlay CJ in Dunne, continued to represent the law in this jurisdiction.
The Supreme Court determined that the overarching principle is to be found in point 1 of the Dunne principles as follows:
"…the standard of approach of a medical professional is to apply a standard appropriate to a person of equal specialist or general status acting with ordinary care. A failure to act in that way will amount to negligence. Each of the other points made by Finlay CJ derive from that overall obligation."
Clarke CJ stressed he was using the phrase “standard of approach” in order to describe the standard a reasonable screener would apply so as to avoid any confusion with the term "standard of care" in circumstances where this term has a precise legal meaning.
The Supreme Court noted that in a case such as this, a court has no role in imposing a standard of approach on a professional. Rather, it is the standards of the profession itself, as demonstrated by the evidence, which impose the standard required. Clarke CJ noted that while the High Court’s use of the words "absolute confidence” to describe the proper approach “may have created more confusion than clarity”, it was clear that all the relevant witnesses in this case had agreed that a screener should not give a clear result in respect of a slide “unless they had no doubt but that the sample is adequate and did not contain any suspicious material”.
In this regard, the Supreme Court determined that the proper "standard of approach" was adopted by the High Court and that this remained the basis for identifying the legal standard of care by reference to which a claim for clinical negligence is to be assessed such as a screener in a scheme such as CervicalCheck.
It continues to be the case that the legal standard of care in clinical or professional negligence claims requires a court to assess whether no reasonable professional of the type concerned could have carried out their task in the manner which occurred in the case in question. The overall test requires a court to determine what standard a reasonable professional would apply.
2. & 3. Reasons Provided by the Trial Judge
The Supreme Court rejected arguments made by Quest and Medlab that the trial judge failed to engage with some aspects of the case which they had made on the facts. Clarke CJ noted the High Court case was truncated for reasons of Mrs Morrissey’s health and while it would have been preferable for the trial judge to provide more detailed reasons in respect of some aspects, his judgment on the issues in this appeal did not fall below the “irreducible minimum” of reasoning.
4. Vicarious Liability
The Supreme Court decided to overturn the trial judge's finding that the HSE was vicariously liable for the negligent acts of the laboratories. It was held that the HSE itself was primarily liable for the negligent acts of Quest and Medlab on the basis that the HSE had a “non-delegable duty” in respect of patients availing of CervicalCheck arising from the manner in which it adopted and promoted CervicalCheck. This is a somewhat narrower basis than that originally adopted by the trial judge.
Clarke CJ noted that an assessment of whether there is negligence in any particular case will involve findings of fact by a trial judge based on evidence and each case “will necessarily depend to a significant extent on its own facts”.
- General Damages
The Supreme Court also rejected arguments by Medlab that the trial judge had erred in awarding €500,000 in general damages for pain and suffering to Mrs Morrissey. The Supreme Court held that the trial judge was correct in finding that €500,000 now represented the maximum sum for general damages and that Mrs Morrissey was entitled to that sum.
- Damages to Compensate for Loss of Free Services
The Supreme Court allowed Medlab’s appeal in respect of damages awarded to Mr Morrissey for having to replace services which would have been provided to the family by Mrs Morrissey were it not for her reduced life expectancy. Clarke CJ determined that the trial judge had erred in making such an award to Mr Morrissey in circumstances where such damages can, under the law as it currently stands, only be recovered in an action brought by dependants under the Civil Liability Act 1961.
Clarke CJ opined that the law in this area may be “potentially anomalous” in some respects and that any change to the law in this area ought to be made by the legislature rather than the judiciary.
While the State guaranteed that Mr and Mrs Morrissey would retain the entirety of the €2.1 million in damages awarded by the High Court, the Appellants’ particular concern was in respect of the High Court's finding that screeners should have “absolute confidence” that a sample is adequate and that there is no abnormality before reporting it as negative.
This Supreme Court judgement has now provided clarity to this area of the law and will have implications for other cervical cancer cases, the work of the CervicalCheck tribunal and also highlights a lacuna in the law to be considered by the legislature in respect of the Civil Liability Act 1961.
The judgement in full can be found here.
Written by: Sinéad Taaffe, Treasa Walsh and Tom Clarke
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