A woman who unsuccessfully sued alleging there was a delay in diagnosing her breast cancer has been ordered to pay the substantial legal costs incurred by the HSE in defending her case and appeal.
The Court of Appeal rejected the contention by Catriona Crumlish’s lawyers that she should not have to pay the HSE’s costs because, they said, her case raised an issue about breast lump assessment that was of “exceptional public importance” and “systemic significance” to the State’s screening programme.
Ms Crumlish (42), who recovered from breast cancer following invasive treatments, lost her Court of Appeal bid for a retrial of her claim for damages, including €3.6 million in special damages, last October.
The appeal court said her case had failed in the High Court because she did not prove that a cancerous tumour diagnosed by doctors at Letterkenny University Hospital in October 2017 had been detectable when she attended the same hospital five months earlier.
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The HSE, represented by VP McMullin Solicitors, denied there was any detectable cancer in May 2017, claiming instead that a lump assessed during that visit was correctly diagnosed as a cyst.
The case focused on cancer growth rates, with the High Court concluding after a 23-day hearing that the tumour was probably present in May 2017 but, if so, it was likely not detectable at that point. The court found the consultant breast surgeon who assessed her then had been meticulous in his approach to clinical assessment.
In the Court of Appeal ruling regarding legal costs, Mr Justice Seamus Noonan said Ms Crumlish, of Moville, Co Donegal, advanced no legal grounds to justify the court depriving the HSE of its prima facie right to its legal costs. The judge noted that the default approach to legal cost liability is that the losing side pays the winner’s costs.
Ms Crumlish, represented by Cian O’Carroll Solicitors, contended that each side should pay their own legal costs incurred in the High Court and Court of Appeal.
This was justified by the public importance of an issue she raised and because her case and appeal were dismissed because of an evidential deficit caused by the HSE’s alleged non-disclosure of information on breast lump aspiration, it was submitted.
Mr Justice Noonan said this argument “ignores” the High Court’s finding that a pea-sized lump assessed in May 2017 was “probably a cyst” rather than the cancerous tumour.
The other “fundamental difficulty” with this assertion is that the alleged need for aspiration of the lump in May 2017 was not considered by the High Court in the first instance, he said. His Court of Appeal colleagues Ms Justice Ann Power and Mr Justice Donald Binchy agreed the HSE should be awarded its costs.
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