Tipperary nurse wins major part of her action in lawsuit over alleged delay in breast cancer diagnosis

It was claimed that Ms McSweeney had two mammograms at the Breast Clinic in University Hospital Waterford in 2020 and 2022 which were reported back as benign. It was claimed that these should have been reported as being indeterminate. File picture

A Tipperary nurse who sued the HSE claiming an alleged delay in diagnosing her breast cancer has won a significant part of her action at the High Court.

Legal sources said the judgement in Aine McSweeney’s case is important in relation to breast cancer and breast radiology services.

Mother of three Aine McSweeney from Clonmel, Co Tipperary, claimed that she had two mammograms in 2020 and 2022 which she said were allegedly incorrectly interpreted as benign. Ms McSweeney, aged 52, was diagnosed with breast cancer in 2023 and had to have a mastectomy, chemotherapy and radiotherapy.

In a judgment after hearing extensive expert evidence on both sides, Mr Justice Paul Coffey ruled that by January 2022 the classification of Ms McSweeney’s mammogram as benign “fell outside the range of acceptable professional judgment”. The failure to recall the Tipperary nurse for further assessment at that time, the judge concluded, constituted a breach of duty by the HSE.

The January 2022 mammogram findings, the judge said, should at a minimum have been regarded as indeterminate thereby requiring recall for further assessment. However, the judge ruled the McSweeney side had not discharged the burden of establishing breach of duty in respect of the October 2020 mammogram.

Ms McSweeney’s counsel, Dr John O’Mahony SC with Cian O’Mahony Bl instructed by Brigid O’Donnell, solicitor, at the opening of the case last March told the court the nurse had a family history of breast cancer.

It was claimed that Ms McSweeney had two mammograms at the Breast Clinic in University Hospital Waterford in 2020 and 2022 which were reported back as benign. It was claimed that these should have been reported as being indeterminate. 

It was contended that the two mammograms allegedly showed clustered microcalcifications. If the two mammograms had been followed through the McSweeney side contended there would have been an investigation and treatment.

All of the claims were denied and the High Court heard evidence from radiological experts on both sides as Mr Justice Paul Coffey decided on whether there was a breach of duty.

High Court ruling

Outlining the issues in the case, the judge said Ms McSweeney alleged negligence by the HSE in the interpretation of mammograms performed in October 2020 and January 2022, resulting, she contended, in a failure to recall her for further assessment, delayed biopsy and delayed diagnosis of breast cancer which was confirmed in 2023. 

The judge said that the McSweeney side contended that each of the 2020 and 2022 mammograms demonstrated a new cluster of microcalcifications in the left breast and that their indeterminacy mandated recall and that the failure to recall her for magnification views and biopsy amounted to a breach of duty.

The core dispute between the expert witnesses in the case, the judge said, did not concern the existence of breast cancer by 2023 nor the biological fact that the disease developed over time, "but rather the interpretation of subtle mammographic appearances in 2020 and 2022 and whether those appearances crossed the threshold for recall under accepted professional standards". 

The judge said the court was satisfied that in 2020 the appearance of a small number of amorphous microcalcifications against that background did not mandate recall as a matter of professional obligation. The court accepted that with the benefit of hindsight the microcalcifications identified in 2020 and 2022 were likely manifestations of the cancer diagnosed in 2023.

However, Mr Justice Coffey said that retrospective fact does not determine breach. The issue, he said, is whether those findings as they appeared at the time and without knowledge of outcome required recall under accepted professional standards.

The judge said the evidence established that what were early malignant microcalcifications in 2020 were indistinguishable from benign findings and did not reach the threshold for intervention.