High Court dismisses medical negligence claim against radiologist as plaintiffs failed to prove deviation from accepted practice.

[2019] IEHC 220

THE HIGH COURT

[2018 No. 9006P]

BETWEEN

M.L. AND K.A.

PLAINTIFFS

AND

T.Q., X LIMITED AND Y LIMITED

DEFENDANTS

JUDGMENT of Mr Justice David Keane delivered on the 12th April 2019

Introduction

1. In this action, the plaintiffs seek damages for personal injuries that they claim were caused by the medical negligence of the

defendants.

2. The first plaintiff, M.L., is a 37 year old woman who works in an administrative role. The second plaintiff, K.A., is a 45 year old man

who works as an engineer. The plaintiffs are a couple and have three young children, all at or below primary school age.

3. In November 2017, Ms L was diagnosed with stage IV ovarian cancer.

4. The first defendant, T.Q., is a consultant radiologist. The second and third defendants, X Ltd and Y Ltd, provide magnetic

resonance imaging (‘MRI’) services.

5. On 29 June 2016, Ms L underwent an MRI scan of her pelvis that Dr Q reported as normal on 1 July 2016.

6. Ms L alleges that the MRI scan showed features of a particular form of ovarian cancer that were not shown or reported upon due

to the negligence of the defendants, resulting in a misdiagnosis or delayed diagnosis that has caused her grave personal injury in the

form of a more advanced disease that was less susceptible to treatment when later diagnosed.

7. Mr A claims that he has also suffered loss or damage, namely the loss of the normal personal, physical and emotional relationship

that he would have been able to enjoy with Ms L were it not for the failure to diagnose her disease from the June 2016 MRI scan.

8. Each of the defendants denies negligence.

9. As counsel for the plaintiffs acknowledged in the course of the trial, the only one of the particulars of alleged negligence capable of

capturing the conduct of X Ltd and Y Ltd was that of ‘failing to produce a suitably sufficient image.’ However, in response to a

request for further and better particulars of that claim that the second defendant raised on 16 November 2018, the plaintiffs replied

on 17 November 2018 that they were not proceeding with that allegation. Thus, although the plaintiffs have never formally withdrawn

their claim against those companies, in substance their claim at trial was pursued solely against Dr Q.

Non-identification Order

10. On the application of counsel for the plaintiffs towards the end of the trial, I granted an order, pursuant to the terms of s. 27 of

the Civil Law (Miscellaneous Provisions) Act 2008, prohibiting the publication or broadcast of any matter relating to the proceedings

which would, or would be likely to, identify Ms L.

11. I did so because I was satisfied that Ms L has a serious medical condition in the form of ovarian cancer; that her identification as

a person with that medical condition would be likely to cause undue stress to her because of its potential effect upon her family and,

in particular, her three young children; and that the order would not prejudice the interests of justice. The defendants did not oppose

the application.

12. Thus, I have selected random initials or letters to describe each of the parties to the action. I have done so in describing the

defendants because, as might be expected, each practices or operates in the part of the State where the plaintiffs live, so that the

identification of the former might contribute to the identification of the latter through what is known as a ‘jigsaw identification’,

whereby a person’s identity may be deduced from a combination of incidental personal details.

Background

13. From the testimony of the parties and from Ms L’s medical records, which were admitted into evidence by agreement between the

parties without the need for formal proof, the following narrative of events emerges.

14. Each of Ms L’s three children was delivered by caesarean section, the youngest in October 2014. Ms L presented at the surgery

of her general practitioner in September of the following year complaining of bladder discomfort in the form of frequent pressure to

urinate, particularly in the morning.

15. Ms L presented at her GP’s surgery again in December, complaining that she had not felt right since her caesarean section in

October of the previous year. The symptoms she reported were pressure to urinate in the morning, though with no incontinence, and

- in the last few months - stomach bloatedness in the week prior to her period. On examination, her abdomen was found to be very

tender on palpation of the supra-pubic region over the bladder. No abnormality was detected in her urine. Ms L testified that her GP

was concerned about post-surgical adhesions from the caesarean section. The GP referred Ms L to a consultant gynaecologist.

16. Ms L attended for a gynaecological consultation on 26 January 2016. The gynaecologist conducted an abdominal ultrasound

examination in his rooms. In his notes, he recorded that Ms L was not keen on a vaginal examination or transvaginal (that is to say,

internal) ultrasound examination. In her evidence, Ms L explained that this was because, due to some delay in being seen, she had

been unable to maintain the full bladder that is recommended to enable an effective examination to be carried out and also because

the abdominal ultrasound had left her feeling painful and tender in that region. The gynaecologist decided to refer Ms L for a formal

renal and pelvic ultrasound. The letter of referral noted that Ms L was complaining of pressure to urinate, frequency and abdominal

bloating. The gynaecologist suggested a diagnostic laparoscopy, a surgical procedure involving the insertion of a fibre-optic

instrument through the abdominal wall to view the organs there, but Ms L did not wish to undergo further surgery as she felt, based

on her discussion with her GP, that post-surgical adhesions might be the problem.

17. Upon that referral, Dr Q performed an ultrasound examination of Ms L’s entire abdomen on 11 March 2016 and reported as follows:

‘Findings: Liver, kidneys, spleen and pancreas appear normal. Gallbladder and biliary are normal. Normal calibre aorta, no

visible retroperitoneal mass or lymphadenopathy.

In the pelvis, uterus and ovaries are normal. No visible mass or free fluid.

Conclusion: Normal examination, no identifiable cause for patient’s symptoms.’

18. This result was reported to Ms L through her gynaecologist and GP. However, Ms L’s symptoms were getting worse and she asked

her gynaecologist if an MRI scan could be arranged. Her reason for doing so was that the ultrasound was only producing a two-

dimensional image and she wanted a more comprehensive examination of her gynaecological organs to see if there was anything

there.

19. On 12 April 2016, the gynaecologist referred Ms L for an MRI scan of the abdomen and pelvis, noting in that referral that her

symptoms were abdominal bloating and urinary frequency. In his evidence, Dr Q stated that the terms of the referral were slightly

problematic because, while either a CT scan or an ultrasound examination of the abdomen and pelvis is a recognised procedure, an

MRI scan is more specifically directed to a particular organ or local region, such as the liver, uterus, gallbladder, kidneys or small

bowel. Thus, Dr Q appended a handwritten note to the referral letter recommending a CT scan, as Ms L’s reported symptoms were not

a recognised indication for an MRI scan. By that, he meant that insurers wouldn’t reimburse for an MRI scan of that kind based on

those symptoms. Dr Q explained that the usual thing would be that the imaging service provider would then engage with the referring

doctor and perhaps also with the patient about what to do next.

20. On 26 April 2016, Ms L emailed her gynaecologist to follow up on her request for an MRI scan, explaining that she did not want to

have a laparoscopy done both for cosmetic reasons and because it would entail an inpatient stay on the public day ward in the

hospital. Nor did she want to have a CT scan done because she was concerned about what she perceived to be the associated

radiation risks.

21. On 11 May 2016, Ms L’s GP wrote to the hospital where the MRI scan had been arranged to take place, setting out Ms L’s

symptoms, medical history and current medication, and stating:

‘I referred her to [the gynaecologist] who offered investigative laparoscopic surgery but she is not keen on same. I would

be grateful for MRI abdomen to rule out any renal or ovarian issue or post c-section adhesions or adenomyosis.’

22. In his evidence, Dr Q stated that this referral letter was passed to him on 11 May 2016 as it was considered problematic for the

reasons he had already explained. Because it had been addressed to the MRI unit rather than him, and because it did not refer to the

prior ultrasound he had performed, Dr Q first noted on that letter ‘not a recognised indication for MRI, recommend ultrasound’, before

he was alerted later that day to the previous ultrasound he had performed and the previous letter of referral that the hospital had

received. Dr Q rang Ms L’s gynaecologist that day to learn his thinking and to find out what his clinical suspicions were. The

gynaecolgist explained on the telephone that, because of Ms L’s three previous caesarean sections, his overwhelming concern was

that there may be tethering of bowel loops on to post caesarean section adhesions, causing intermittent bowel obstruction. Since Dr

Q considered a CT scan of the abdomen and pelvis the the best examination short of a laparoscopy for investigating that suspicion,

he strongly advised that course of action.

23. Dr Q arranged a CT scan for Ms L in a public hospital to which he was attached where - due to the vagaries of the healthcare

system - the patient charge for a private referral is much lower than in a private hospital but, for reasons that were never made

known to Dr Q but which seem to have been related to Ms L’s concerns about radiation risk, she did not undergo that scan.

24. Ms L’s medical records disclose a note, handwritten by her gynaecologist on 24 May 2016, which states:

‘Spoke to [Ms L]

MRI due to be done in next while as discussed with [Dr Q]

Aware of the limitations of MRI.’

In her evidence to the court, Ms L did not accept that her gynaecologist had made her aware of any such limitation but there may

have been some confusion on the point as she appeared to believe that the reference was to limitations on her private insurance

cover for an MRI scan, rather than to the limitations of that technology as an appropriate diagnostic tool, given her symptoms.

25. Dr Q stated in evidence that, on or about 8 June 2016, he spoke to Ms L’s gynaecologist again. During that discussion, it became

clear that, despite its limitations and imperfections, the only investigation route available was an MRI scan of the pelvis. Dr Q felt that

it should at least establish whether there was tethering of the bowel to a caesarean section scar or whether there was any muscular

injury or muscle tearing. The uterus and ovaries would be included when the pelvis was imaged in that way. Dr Q appended a further

handwritten note to the referral letter on that date, stating ‘MRI pelvis axial and coronal, T1, T2 and STIR’, which was his instruction

for the type of MRI scan that was to be carried out and the sequences that were to be used.

26. The entry in the computer system maintained by X Ltd for Ms L’s hospital appointment to have that MRI scan on 29 June 2016

states:

‘1 x 30 mins fao [Dr Q]

ax and coronal t1 t2 and stir whole pelvis

144 - pelvic pain need to outrule ovarian mass’

In his evidence, Dr Q stated that the practice was for such entries to be made by radiographers or clerical staff. He didn’t write that

entry or read it, since records of that type were prepared for purely administrative purposes and were never presented to him. Dr Q

presumed that the reference ‘fao [Dr Q]’ meant that the scan results were to be brought to his attention, not that the relevant entry

was. The figure ‘144’ was a code known as a ‘clinical indication code’. When clerical staff prepared claim forms for insurers, they had

to provide that code because only certain clinical indications were recognised by insurers as qualifying a given procedure for

reimbursement. The use of the phrase ‘pelvic pain need to outrule ovarian mass’ was not a medical interpretation nor the expression

of a medical opinion and was never drawn to his attention. Dr Q speculated that the administrative staff member who entered it on

the system had selected it as a clinical indication code that would qualify the MRI scan for reimbursement by the insurer concerned.

27. The MRI scan was carried out on 29 June 2016.

28. Dr Q produced a radiology report on it on 1 July 2016. That report stated (in material part):

‘Procedure:- MRI Pelvis (soft tissue)

Clinical Information:

Urgency, past Caesarean section, suprapubic tenderness.

Findings:

The uterus and adnexa appear normal, normal follicles in both ovaries without visible mass or free fluid. The urinary

bladder is normal, there is no evidence of bowel dilation [or] tethering. The anterior abdominal wall appears normal. Normal

signal from the soft tissues and marrow of bony pelvis.

Summary:

Normal examination, no identifiable cause for patient’s symptoms.’

29. Ms L was informed of this result by her GP on the telephone shortly afterwards. But her symptoms persisted, particularly that of

stomach bloating, which led her GP to think there may be a dietary issue. Ms L was prescribed Buscopan, a prescription medication for

abdominal cramps. Special diets were discussed and her GP suggested she consider a colonoscopy (an endoscopic examination of the

lining of the large bowel) to rule out Irritable Bowel Syndrome (‘IBS’). However, Ms L felt there was nothing to warrant one, as -

despite her other symptoms - she was not experiencing any bowel problems.

30. On 6 April 2017, when she attended her GP complaining of the same symptoms, Ms L was strongly advised to go back to her

gynaecologist for a further opinion. She indicated that she would think about it.

31. On 15 June 2017, Ms L attended her GP complaining of neck spasms and a pain in her right shoulder after doing some home

maintenance work. She was prescribed a short course of benzodiazepine as a muscle relaxant and referred for an MRI scan to rule out

a rotator cuff tear of the tendons or muscles of her shoulder. That MRI scan was performed on 21 June 2017. A radiologist other than

Dr Q reported on that scan on 25 June 2017, finding the rotator cuff and proximal biceps in Ms L’s right shoulder were intact, with no

evidence of significant tendonitis or tear, before concluding: ‘No acute shoulder pathology demonstrated.’

32. Ms L presented at her GP on 21 July 2017, complaining again of a spasm in her right shoulder and neck. Once again, she was

prescribed a short course of benzodiazepine, together with heat-pack analgesia, and recommended to try physiotherapy.

33. Ms L attended her GP on 9 September 2017, complaining of the same right shoulder pain that had now spread to the lower right

hand side of her rib cage. She reported that she had attended a physiotherapist who felt it was a muscular spasm. On examination,

the GP found Ms L’s chest clear with no signs of pleural effusion, no sound of pleural friction rub, and no history of trauma. The GP

found tenderness palpating Ms L’s lower right rib cage, right shoulder and abdomen. The G.P.’s impression was that Ms L was

experiencing muscular spasm or costochondritis (an inflammation of the junctions where the upper ribs join with the cartilage that

holds them to the breastbone). The G.P.’s plan was to refer Ms L for an orthopaedic opinion and for a chest x-ray, while continuing to

prescribe anti-inflammatories and analgesics, with advice to attend at the Accident and Emergency (‘A&E’) department at her nearest

hospital, should her condition worsen.

34. Ms L attended hospital for a chest x-ray on 21 September 2017. A different radiologist reported on it, finding:

‘Heart size normal. The lungs are clear. No pneumothorax. No pleural effusion. The osseous structures are unremarkable

given the patient’s age. No free air under the diaphragm.’

35. On 2 November 2017, Ms L presented at her GP complaining of a cough, breathlessness, wheezing and dizziness. The GP

diagnosed a respiratory tract infection and prescribed antibiotics and steroidal anti-inflammatories.

36. On 8 November 2017, Ms L presented again at her GP and was given a letter of referral to A&E, which she attended on 13

November 2017, complaining of increasing breathlessness and right sided pleuritic chest pain. A chest x-ray revealed a right pleural

effusion (i.e fluid on the lung) and Ms L was admitted to hospital. A chest drain was inserted on her right side. A sample of pleuritic

fluid was sent for testing on 14 November 2017. Ms L discharged herself over the intervening weekend (as she wanted to be at home

because her father was unwell) but was readmitted on 20 November 2017, showing signs of a left pleural effusion. She had a CT scan

and bronchoscopy (endoscopic examination of the lungs) and a left pleural drain was inserted.

37. The CT scan was performed on 23 November 2017 and Dr Q reported on it the same day. In summary, Dr Q noted large bilateral

pleural effusion in the chest and bilaterally enlarged ovaries in the abdomen and pelvis. Dr Q concluded that there was a suspicious

ovarian mass, which he described at the top of his report as a malignant cytology suggestive of gynaecological malignancy.

38. In the meantime, the cytology report on the sample of pleural fluid taken from Ms L confirmed a malignant cytology. On 23

November 2017, having considered that report in conjunction with Dr Q’s report on Ms L’s CT scan, a consultant respiratory physician

diagnosed a likely ovarian carcinoma with invasion of surrounding tissue. Ms L was informed of that diagnosis that day.

39. On 1 December 2017, Ms L was examined, and her case was reviewed, by a consultant medical oncologist who, in a report dated

4 December 2017, confirmed that she presented as a thirty-five year old woman with stage IV serous carcinoma of probable ovarian

origin. That consultant explained to Ms L that surgery and radiotherapy were not appropriate treatments and discussed with her the

use of chemotherapy for disease and symptom control, rather than cure. Ms L has since commenced that treatment. The prognosis is

grave.

The proceedings

40. A personal injuries summons issued on behalf of Ms L and Mr A on 15 October 2018. That summons was twice amended, with the

leave of the court, on 30 October and 13 November 2018. X Ltd and Y Ltd each delivered a defence on 16 November 2018. Dr Q

delivered his defence on 30 November 2018.

41. The trial of the action took place over 11 days between 15 February and 6 March 2019. The plaintiffs were represented by Aidan

Doyle SC and Declan Doyle SC with David Humphries BL, instructed by Cian O’Carroll, Solicitors. The defendants were represented by

Eugene Gleeson SC with Padraic Hogan BL, instructed by William Fry, Solicitors.

The issues

42. To obtain the relief that they seek in the present action, the plaintiffs must surmount three successive hurdles.

43. First, they must establish that there was some negligence or breach of duty on the part of Dr Q in his conduct of, or report on,

the ultrasound examination of Ms L’s abdomen on 11 March 2016 or the MRI scan of her pelvis on 29 June 2016, or both.

44. To do so, they rely almost exclusively on the expert evidence of Professor Graham Whitehouse, consultant diagnostic radiologist,

with some tangential support, within the limits of their own fields, from the expert evidence of Mr Frederick David Skidmore,

consultant surgical oncologist; Professor Bleddyn Jones, consultant clinical oncologist; and Professor Michael Wells, consultant

gynaecological pathologist. In denying negligence, the defendants rely on the evidence of Dr Q and, thereafter, chiefly on the expert

evidence of Professor Leo Lawler, consultant diagnostic and interventional radiologist, partly supported, within the limits of his own

field, by Professor Seamus O’Reilly, consultant medical oncologist. The plaintiffs did not call either Ms L’s GP or her gynaecologist,

although both were listed as witnesses to fact in every iteration of the plaintiffs’ disclosure schedule, up to and including the most

recent dated 18 February 2019.

45. Second, if the plaintiffs can prove such negligence, they must next establish that it caused either or both of them to suffer a

cognisable form of damage. Ms L claims that she has suffered damage in the form of the lost opportunity for earlier treatment, and

probable cure, of her ovarian cancer, together with consequential psychiatric injury, and Mr A claims that he has suffered damage,

flowing from Ms L’s injuries, in the form of his loss of the normal personal, physical and emotional relationship with Ms L that he might

otherwise have enjoyed.

46. In that regard, the plaintiffs rely principally on the expert evidence of Mr Skidmore, Professor Jones and Professor Wells, together

with that of Dr Tessa Neville, consultant psychiatrist. In denying that they have caused any such damage or injury to the plaintiffs,

the defendants rely principally on the expert evidence of Professor O’Reilly, together with that of Professor Tom D’Arcy, consultant

obstetrician/gynaecologist

47. Third, if the plaintiffs can prove cognisable damage caused by the defendants’ negligence, they must then establish the quantum,

or extent, of that damage in financial terms to facilitate an appropriate award of damages by the court.

48. To that end, they rely on the evidence of Ms L and Mr A, together with the expert evidence of Ms Fiona Haughey, vocational

assessor; Mr Kenneth Hennessy, architect; Ms Avril McElwain, occupational therapist (whose report was submitted in evidence

without the need for proof by agreement between the parties); Professor Michael Fitzgerald, consultant child psychiatrist; Ms Noreen

Roche, nursing care consultant; and Mr Nigel Tennant, consulting actuary. In contesting that aspect of the plaintiff’s case, the

defendant’s rely on the expert evidence of Ms Moninna McAlinden, occupational therapist (whose report was also submitted in

evidence by agreement); Dr Kieran Moore, consultant paediatric psychiatrist; Ms Mary Perryman; nursing care consultant; and Ms

Maura Carter; consulting actuary.

49. By agreement between the parties and in order to expedite the trial, each expert witness was taken to have adopted the

contents of his or her expert report(s) as part of his or her evidence in chief.

Negligence

i. the evidence of Professor Whitehouse

50. The particulars of the negligence that the plaintiffs allege against Dr Q are, in substance, drawn from the report of Professor

Whitehouse, dated 12 October 2018.

51. In that report, Professor Whitehouse provided a summary of his instructions and of the documentation he had considered, and set

out a brief clinical history of Ms L’s condition, before expressing an opinion both on the still images retained from the March 2016

ultrasound examination and, more significantly, on the digital record of the June 2016 MRI scan.

52. Professor Whitehouse reviewed 23 snapshot images of the March 2016 ultrasound. In the ‘conclusions’ section of his report, he

expressed the view that neither Dr Q’s conduct of the examination nor his report on it was a breach of duty. However, Professor

Whitehouse also expressed the opinion that the left ovary was not optimally demonstrated in the images he viewed. In the body of his

report, Professor Whitehouse stated:

‘The left ovary, although measured as 23.2 mm in length is indistinct. Transvaginal imaging would have been the preferred

method of demonstrating the ovaries, but unfortunately this method was not carried out. It is questionable as to what

whether or not what was measured is in fact the left ovary. A cluster of rounded hypoechoic foci anterior to the

measured feature could possibly represent the left ovary. With such limited images of the ovaries it is difficult to be sure,

but from the presented images no features suspicious of pelvic malignancy are identified.’

53. In his evidence in chief, Professor Whitehouse reiterated the view that the image of the left ovary on the relevant still image(s)

he had examined was a bit indistinct, which circumstance demanded that a transvaginal ultrasound examination should then have

been carried out to obtain a clearer image. Professor Whitehouse stated that a doppler ultrasound examination also needed to be

done to measure blood flow through the pelvic organs.

54. Professor Whitehouse’s written report addressed the MRI scan of 29 June 2016 in the following terms:

‘There are standard STIR, T1 and T2 weighted images in the coronal (front to back) and axial (cross sectional) plains.

The uterus and urinary bladder are normal in appearance.

The left ovary measures 20x20x15mm. It contains a multilocular, septated cystic mass. The septations are of variable

thickness. Very little normal ovarian tissue is identified. These features by themselves could be due to a serous

cystoadenoma, which is a benign lesion. However, there are some additional features which are highly suspicious of the

lesion being a cystadenocarcinoma. There is some ascitic fluid, mainly on the left side of the pelvic cavity including

adjacent to the left ovary. Ascites occurs in over 50% of malignant ovarian tumours of epithelial origin such as

cystadenocarcinoma and is always associated with peritoneal spread of tumour. Whilst there are no papillary masses

growing inwards from the wall into the cystic component, a frequent feature of cystadenocarcinoma, there is the

suspicion of an exogenous tumour extension from the superolateral aspect of the ovarian mass lesion. The true extent of

the tumour requires contrast enhancement by intravenous gadolinium and this is an essential part of the MRI examination

in cases of suspected ovarian carcinoma.

The right ovary measures 24x22x17.5mm. It contains a lobulated septated cystic mass. Malignant ovarian tumours are

bilateral in 62.5% of cases. It is therefore likely that this substantial cystic mass in the right ovary is either a malignant or

borderline malignant cystadenocarcinoma. Two small cysts towards the periphery of the right ovary could possibly be

follicular cysts.

There is no visible pelvic lymphadenopathy or other evidence of tumour spread within the pelvis and abdomen.

To complete the MRI examination, T1 weighted images should be repeated post gadolinium to more accurately delineate

tumour presence and extent.’

55. In his evidence to the court, Professor Whitehouse stated that a suspected abnormality on an MRI scan would warrant the use of

gadolinium or perhaps diffusion weighted scanning followed by the use of gadolinium where it disclosed a pattern highly suspicious of

malignancy.

56. In addressing the images of the left ovary depicted in the MRI scan in his direct evidence, Professor Whitehouse seemed to resile

significantly from the opinion expressed in his report. Pointing to the still image described as transverse image 16, Professor

Whitehouse conceded that the fluid visible around the ovaries was compatible with the normal variation in such images and not, on

balance, particularly worrisome. Referring to coronal image 17, Professor Whitehouse pointed to the superolateral (i.e. upper and

outer) aspect of the ovarian capsule as demonstrating a slightly fuzzy edge (which he had referred to in his report as raising a

suspicion of an exogenous tumour extension there), before acknowledging that the image could also be considered to depict a normal

variant. In concluding his evidence in chief, Professor Whitehouse conceded that he would now ‘dilute’ the possibility of a cyst

adenocarcinoma on the left ovary to one that was just slight.

57. Turning to the right ovary, Professor Whitehouse identified four features of the depiction of it in two still images from the MRI

scan - coronal image 15 and transverse image 13 - that he believes prevented that scan from being properly reported as normal.

58. The first is what Professor Whitehouse acknowledged might be viewed as two normal follicular cysts close together but which he

considered to be a single lobulated and septated cystic mass.

59. The second is what might be considered the adjoining surfaces of those two normal follicular cysts but what Professor Whitehouse

considered to be a septation (or bridge) across the middle of that single lobulated cystic mass, together with what Professor

Whitehouse felt might be another less developed septation more faintly visible in the lower part of that mass. In his evidence in chief,

Professor Whitehouse referred to the first septation as ‘quite substantial.’

60. The third is what Professor Whitehouse considered an irregular edge on part of that cystic mass or lesion, suggestive to him of a

possible carcinoma, adjacent to a black or grey fuzzy area external to that part of the edge of the cyst or mass, which he

acknowledged might depict normal blood vessels but which he believes should have caused concern because carcinomas are vascular.

61. The fourth is what Professor Whitehouse considered to be an irregular portion of the southwestern edge of the capsule of the

right ovary (as depicted in coronal image 15) with a small amount of tissue bulging out.

62. Under cross-examination, Professor Whitehouse accepted that he had been aware of Ms L’s current diagnosis of stage IV

adenocarcinoma when he first viewed the MRI scan images, although he emphasised that he tried hard to avoid the element of

retrospection. He accepted that, in those images, Ms L’s right ovary was normal in size. He also accepted that in his written report he

had made no suggestion of any breach or rupture of the capsule of the right ovary nor had he subsequently delivered any addendum

to that report.

ii. the evidence of the plaintiffs’ other experts on the negligence issue

63. For his part, Professor Jones acknowledged that, while his evidence was premised on the assumption that Professor Whitehouse’s

interpretation of the June 2016 MRI scan was correct, that issue was outside the realm of his particular expertise. The evidence of Mr

Skidmore was that, while the appropriate expert to offer evidence to the court on the proper interpretation of an MRI scan was a

consultant radiologist, he did reserve the right as a surgical oncologist to criticise any statement of a radiologist that he did not agree

with. He saw nothing to disagree with in Professor Whitehouse’s evidence on the June 2016 MRI scan. Perfectly understandably, as a

gynaecological pathologist, Professor Wells did not express any view on the June 2016 MRI scan but, rather, indicated in his report

that he was relying on Professor Whitehouse’s opinion that it demonstrated a ‘bilateral ovarian cystadenocarcinoma’.

64. Although the evidence of the non-radiological experts on each side was primarily directed to the second issue in the case (i.e. the

likely stage of Ms L’s ovarian cancer in June 2016 and the prospects for successful treatment if it had been detected then, as those

questions relate to her claim for loss of opportunity for therapy or cure), one aspect of the conflicting evidence of Professor Jones for

the plaintiffs and Professor O’Reilly for the defendants was addressed by the plaintiffs’ counsel at considerable length with various

witnesses as directly material to the issue of negligence. That is the conflict between Professor Jones’ opinion (based on a

mathematical model) that ‘a small primary tumour probably would certainly have existed in June 2016’, and Professor O’Reilly’s opinion

that ‘it is likely that the radiology assessments became positive in the months prior to November 2017’. For my part, I am not sure

that that represents a real controversy. When a tumour came into existence, on the one hand, and when it became radiologically

detectable in the ovaries, on the other, seem to me to be entirely distinct questions.

65. In his evidence, Professor O’Reilly observed that a high proportion of the high-grade tumours that cause ovarian cancer originate

elsewhere in the body, so that you can scan the ovary early on without success because it is often the landing zone for the tumour,

not its starting point. In his report, Professor O’Reilly noted that the majority of women who develop ovarian cancer present with late

stage disease where curative therapy is not possible, which has prompted multiple studies to evaluate potential screening

programmes, so far without success. The lack of benefit from attempts at screening relates to the biology of the disease, which

develops insidiously, and to the shortcomings of existing blood tests and imaging modalities.

iii. the evidence of Dr Q

66. Dr Q gave evidence in his own defence. In doing so, he acknowledged the terrible situation in which Ms L and her family find

themselves in that she is in the throes of an insidious and cruel disease.

67. Dr Q confirmed that Ms L had been referred to him by her consultant gynaecologist in February 2016 for an abdominal and pelvic

ultrasound, which he carried out on 11 March 2016.

68. Dr Q explained how such examinations are generally conducted. Patients are asked to come in with a full bladder to enable good

imaging to be produced of the uterus and ovaries. Contact gel is applied to the abdomen and a hand held probe is moved over it,

transmitting moving images to the screen of an adjacent monitor. The operator compares those images shown in real time with his or

her knowledge of the relevant anatomy in three dimensions. The frame rate of images produced is anything up to 20 frames per

second, and the eye and the brain will perceive more detail and resolution from that high frame rate than they will from the limited

number of representative snapshot images that the operator takes to archive for future reference. Dr Q stated that it follows that he

would have had the benefit of clearer images than those later commented upon by Professor Whitehouse. The examination of the

abdomen lasts 10 to 15 minutes. For women, it starts at the pelvis and progresses to the upper part of the abdomen. The length of

time spent on the examination of the ovaries will depend on whether any abnormality is observed but that examination will be done in

the first five minutes of the overall examination, assuming the patient’s bladder is adequately full.

69. Dr Q then described his ultrasound examination of Ms L’s ovaries. Her bladder had been adequately full. Her ovaries were of normal

size and shape, had normal follicles, and contained no masses or abnormality. There was no ascites (that is, large buildup of fluid)

present in the abdomen. The uterus appeared normal also.

70. Under cross-examination, Dr Q denied that his examination almost missed Ms L’s left ovary, pointing out that Professor Whitehouse

appeared to have based his view to that effect on his interpretation of a limited number of static images. Dr Q stated that since the

abdominal ultrasound examination he had performed disclosed that Ms L’s ovaries were normal in appearance, there was no need to

perform a transvaginal ultrasound, an examination that Ms L had previously declined. Since he had obtained a clear image of normal

ovaries, he did not agree that a transvaginal ultrasound was demanded by the results of the abdominal ultrasound as Professor

Whitehouse had suggested. For the same reason, he did not accept that a doppler ultrasound was warranted.

71. Turning to the MRI scan that was carried out on 29 June 2016, Dr Q explained that T1, T2 and STIR are different types of MRI

sequences. MRI works on the basis of emphasising the signal from the various cells in the body in proportion to their proton content.

Protons are hydrogen ions. They vary in density according to the fluid content of tissue structures and there is an enormous

spectrum of fluid content, and thus protons, throughout all tissues of the body. MRI is very good at discriminating in quite good detail

between various tissue structures for that reason. To perform an MRI scan, a patient is placed within what is, essentially, a large

bore of wound-up copper wire and is, thus, magnetised. That magnetisation is manipulated by turning on and off high frequency

pulses of electricity and, in between those pulses, the protons within the body change position and shape, emitting a signal that is

used to produce an image. Applying the pulses in different ways allows the signal from either water or fat to be emphasised. A T1

sequence emphasises the signal from fat; a T2 sequence that from water. There are myriad other sequences that combine or modify

those two approaches in different ways. A STIR sequence is a modification that suppresses fat signal and enhances water signal.

There are two relevant imaging planes: axial, representing slices of the body viewed from top to bottom; and coronal, representing

slices of the body viewed from front to back.

72. A turbo spin echo sequence is a standard type of T2 sequence that shortens the time a patient needs to spend in the MRI

machine. The average scan time is usually between 20 and 30 minutes. There is an obvious trade-off between the duration of a scan,

on the one hand, and the variety and quality of image sequences that can be produced on the other. The optimum balance results in

a broad average scan time of 20 to 30 minutes for most patients and most body parts.

73. The images that result from an MRI scan are stored in digital format. A consultant radiologist has access to a high specification

monitor screen, usually viewed in a darkened room to eliminate noise and light distraction. There is a software programme that allows

the images to be viewed in different ways. Dr Q’s usual habit would be to scroll through all of the different sequences that had been

performed - in this case, six (T1, T2 and STIR sequences, both axial and coronal) - simultaneously on the same screen. By using a

computer mouse, it is possible to scroll backwards and forwards, cross-checking images, so that no scan report is based on any one

particular snapshot or image. A particular sequence can be viewed in isolation or in conjunction with other sequences, images can be

magnified, and contrast can be adjusted to assist in interpretation.

74. Using equipment that had been installed in the courtroom, Dr Q went through the various images from the MRI scan of Ms L’s

pelvis on 29 June 2016. Dr Q provided the following description of the the steps that he took in assessing the images of Ms L’s

ovaries.

75. First, he looked at overall ovarian size. The average ovarian size in a woman between the age of 31 and 40 is 2.5 cm. The upper

level of normal in that age group is 5.6 cm. Ms L’s right ovary was 2.5 cm.

76. Second, he looked for any follicles or cysts greater than 3 cm. As the word cyst has taken on a negative connotation, implying a

pathology, and as cysts containing follicles are a normal - indeed, necessary - part of the physiology of the ovary, the convention is

to describe cystic structures of up to 3 cm within the ovary as follicles if they are simple, by which is meant that they have thin,

well-defined walls without any papillary projection (i.e. solid looking nodular excrescence) within them. The follicles within Ms L’s right

ovary were simple, uniform and without any papillary, or nodular, excrescences.

77. Where Professor Whitehouse had identified what he believed might be a single lobulated and septated cystic mass in the right

ovary, Dr Q saw two adjacent follicles abutting one another, one of which contained a single thin septation. Under cross-examination,

Dr Q stated that the combined thickness of those abutting walls (or, in the view of Professor Whitehouse, that substantial septation)

could be measured, using a feature of the imaging software, at no more than 1.89 mm, whereas the upper thickness limit for normal

septation is 3mm. The single thin septation within one of those follicles was more clearly still within normal parameters. To refer to the

first feature as a ‘quite substantial septation’ as Professor Whitehouse had done was to substitute a relativistic term and, hence, a

subjective judgment, for the medical criterion (i.e. an objective measurement) that radiologists were expected to apply. By definition,

features that are normal require no further investigation.

78. Outside the follicles in the right ovary, Dr Q observed connective tissue of the ovary (known as stroma) of normal size and regular

appearance, the combination of bright and dark parts in the image reflecting the vascularity of, or blood flow through, that tissue.

79. On scrolling backwards and forwards between the various images in the relevant sequence, Dr Q stated that, despite what

Professor Whitehouse considered to be an irregular portion of the southwestern edge of the capsule of the right ovary (as depicted in

coronal image 15) with a small amount of tissue bulging out, the capsule of the ovary there was intact, which was confirmed in the

equivalent STIR sequence images. In describing a small amount of tissue bulging out, Dr Q thought Professor Whitehouse might be

referring to an area depicted in coronal image 15 just external to the southwestern edge of the right ovary. But scrolling through the

coronal images and comparing them with the axial sequence, continuity of the wall or capsule of the ovary is evident. And while the

resolution of the STIR sequence images is less clear, if there was tissue mass extending beyond the capsule wall they should depict a

very clear, dark filling defect there but they do not.

80. To summarise his view on the MRI scan images of Ms L’s right ovary, Dr Q wished to emphasise that they depict a normal sized

ovary with a normal appearance and the complete absence of any nodular projections from either septae or the follicular walls.

81. Turning to the left ovary, Dr Q noted that its appearance was slightly different. There was a greater number of tightly packed

follicles, reducing the size of the medullary stroma, or connecting tissue, within the ovary in consequence. The ovary measured 2.4

cm and was therefore within the normal range. The divisions between the follicles were sharply defined and they were thin walled. By

combining different images, it was possible to be satisfied that the capsule of the ovary had a regular appearance. There was an area

of greyness outside the capsule that, to the unwary, might look like a filling defect but which was, in fact, the result of turbulence in

the fluid in the T2 sequence caused by the use of the turbo spin echo technique. The slightly fuzzy edge that Professor Whitehouse

had pointed to on the superolateral aspect of the left ovarian capsule in one particular image was, in Dr Q’s view, a common effect

observed when viewing an intersection upon a curved surface and Dr Q could see nothing to justify any suspicion of an exogenous

tumour extension there. Thus, his conclusion was that it was a normal ovary.

82. Under cross-examination, Dr Q explained that the capsule of an ovary is a spherical object, viewed in each MRI scan image across

a single plane. Where a single slice or image intersects the curve of the surface of the capsule, a blurred image of that surface may

result, creating a misleading impression that there may be a breach in the capsule at that point. For that reason, any such image

must be viewed in conjunction with the surrounding images and perhaps also from another plane for the viewer to form an accurate

overall impression. Adopting that standard approach in this case, Dr Q formed the opinion that the images of the capsule of Ms L’s left

ovary were no different than those of the thousands of other ovaries that he has examined every year and, hence, that the ovary

was normal in appearance.

83. In re-examination, Dr Q stated that he had been greatly puzzled by the reference in Professor Whitehouse’s report (though not in

his evidence to the court) to ‘the suspicion of an exogenous tumour extension from the superolateral aspect of the ovarian mass

lesion’ in the left ovary. Dr Q had observed no ovarian mass lesion in the left ovary and, indeed, in his evidence to the court,

Professor Whitehouse appeared to abandon that suggestion. Dr Q was not sure what Professor Whitehouse intended to convey by his

use of the term ‘exogenous tumour extension’. Did he mean a mass in the ovary extending outside it or a mass outside the ovary

extending into it? Dr Q could identify neither such feature. Dr Q thought that Professor Whitehouse might have been referring to a

certain grayness in the image at that location, which Dr Q believes clearly denotes typical T2 signal fluid. The sequence concerned is

a turbo spin echo one. Such sequences misregister the turbulence of free fluid on T2 sequences as a filling defect, thereby creating a

potentially misleading image. The STIR image of the same location demonstrates a uniform fluid signal. In Dr Q’s view the images of

the left ovary depict a normal ovary with a capsule that was intact, with no external tumour extending into it and no internal tumour

extending out of it.

84. Under further cross-examination, Dr Q stated that, when Ms L was referred to him in May 2016 for an MRI scan, the index of

suspicion of ovarian cancer was low. Neither Ms L’s GP nor her gynaecologist had arranged for a CA 125 test, which is a protein

marker blood test used to look for early signs of ovarian cancer, and Ms L had not presented with a family history of ovarian cancer.

The March 2016 ultrasound of Ms L’s abdomen, including her ovaries, was normal. Ms L’s symptoms - identified in the GP’s letter of

referral for an MRI scan as pressure to urinate, bloatedness, and tenderness in the suprapubic region over her bladder - were not

specific to ovarian cancer, being found in thousands of women with normal ovaries who are suffering from other more common

conditions, such as bowel obstruction The overarching concern of Ms L’s gynaecologist was bowel tethering and the possibility of

adhesions from her most recent caesarean section. Dr Q stated that, nonetheless, caution is always the watchword and one of the

great aphorisms that he was taught as a young radiologist is that it is not possible to exclude anything.

85. It was put to Dr Q that the evidence of Professor Whitehouse had been that, when professional persons were suggesting ovarian

issues or an ovarian mass, that was enough to warrant the conduct of a scan using gadolinium as an enhancing agent. Dr Q replied

that gadolinium should only be given where an abnormality of the ovaries had been found on an ultrasound examination or an MRI

scan. The administration of gadolinium in the examination of a normal ovary is not recommended because it can result in false positive

enhancement and because, as has become evident in the last four or five years, it creates the risk of deposition disease. Had any

papillary projection been evident in the MRI scans that were conducted, then - balancing the risks - Dr Q would have administered

gadolinium. But none was.

86. Dr Q also disagreed with Professor Whitehouse’s suggestion that a diffusion weighted sequence of images should have been taken.

Dr Q stated that a diffusion weighted sequence is a modification of the basic T1 or T2 sequence, which is easily performed and useful

for many purposes but which has no proven role in the detection of ovarian cancer. The best evidence for its use in the context of

ovarian cancer is in analysing low T2 signal solid masses, not cystic masses. In Dr Q’s considerable experience of using diffusion

weighting imaging in the staging of rectal cancers, he had found it unreliable in characterising the primary tumour, although it was of

some use in the assessment of abnormally sized lymph glands in the region.

iv. the evidence of Professor Lawler

87. On behalf of the defendants, Professor Lawler was asked to report on the June 2016 MRI scan of Ms L’s abdomen. To eliminate -

or, at least minimise - the risk of hindsight bias, Professor Lawler was initially given only the information that was available to Dr Q on

that date and was not informed of Ms L’s subsequent medical history, culminating in the diagnosis of stage IV ovarian cancer in

November 2017.

88. Professor Lawler reported as follows:

‘History. Pressure to urinate, frequency and abdominal bloating. Prior transabdominal ultrasound was reported as normal.

Case discussed and MRI pelvis recommend.

Technique. T2 Haste localiser, Coronal & Axial STIR, Coronal and Axial T1 TSE, Coronal and Axial T2, No sagittal imaging.

No contrast enhanced imaging.

No comparisons submitted.

FINDINGS

Uterus C-section scar suggested. Normal endometrial lining, junctional zone and myometrium. Prominent vasculature of

LEFT myometrium - can be normal variant.

Small filling defect in the cervix below which we cannot discriminate further. MRI is not for cervix primary assessment if

this is a concern. Normal cervix stroma.

Both ovaries identified and normal

No fallopian tube abnormalities

Small free fluid in the pelvis which can be a normal variant

Bladder and urethra normal

Limited imaging of rectum normal

Bone marrow signal normal. Visualised SI joints normal. Limited imaging of hips is normal.

No regional adenopathy

Normal flow voids of vascular structures

CONCLUSION

There is no finding concordant with the symptoms described in the referral.

MRI within normal limits.’

89. Professor Lawler was then apprised of Ms L’s subsequent medical history and of the allegations of negligence against Dr Q that are

now being made on her behalf, in response to which he prepared a report dated 11 February 2019.

90. In that report, he first confirmed that, having been apprised of those matters, he did not believe that he would have interpreted

the scan differently in his routine practice.

91. He then noted that the March 2016 ultrasound examination was done to investigate symptoms of ‘pressure to urinate, frequency

and bloating.’ That was a reasonable test and was reported as normal, an interpretation supported by the results of the June 2016

MRI scan.

92. Professor Lawler considered that these imaging tests (ultrasound and MRI) were performed for reasonable clinical indication, done

technically in an appropriate manner and interpreted correctly for the indications provided.

93. In cross-examination, it was put to Professor Lawler that the recommended form of ultrasound examination to rule out ovarian

cancer is a transvaginal, rather than transabdominal, one. Professor Lawler answered that that is not the case when you are dealing

with an undifferentiated patient presenting with the symptoms that Ms L exhibited in March 2016 - i.e. the same symptom complex as

that which 999 other women without ovarian cancer might exhibit. It is not the practice to do a transvaginal sonogram on every

menstrually active young woman demonstrating such symptoms because it is an invasive, undignified procedure that a lot of women

will quite reasonably refuse to undergo. For that reason, it will only be done if something has been found on a transabdominal

sonogram that requires further investigation.

94. On the views expressed by Professor Whitehouse about the imaging from the June 2016 MRI scan, Professor Lawler’s evidence

was broadly as follows.

95. He did not see any of the things that Professor Whitehouse described in his report concerning the left ovary, and the language

used in the description of those things was not common vernacular in his professional experience. He saw no features suspicious of

cystadenocarcinoma. No guidelines or practices recommend an MRI scan as a reliable tool for the detection of cancer in ovaries less

than 2.5 cm in diameter. What Professor Whitehouse identified in the pelvis as ascitic fluid of the kind evident in 50% of malignant

ovarian tumours, Professor Lawler identified as normal physiologic fluid of the kind that is almost universal in normal female pelvic

imaging. The presence of small quantities of pelvic fluid is not an independent predictor of ovarian malignancy and it would be highly

unusual to find manifest malignant ascites in the absence of a large tumour primary lesion.

96. In particular, he did not see, or suspect, anything extending beyond the confines of that ovary, much less did he see, or suspect,

an exogenous tumour extension. The term ‘exogenous’ is not part of the common terminology of radiology reports. The particular

feature that he thought Professor Whitehouse might have been referring to was outside the ovary and did not fit any of the

diagnostic criteria currently accepted as a sign of ovarian cancer. There was, thus, nothing in the imaging of the left ovary that

called for contrast enhancement by the intravenous administration of gadolinium , a procedure that is not routinely used when an

investigation is done for bloating and which comes with attendant risks. The main one under review at present is that of deposition of

gadolinium on the brain. It is currently the subject of litigation in the United States of America.

97. On the right ovary, Professor Lawler did not accept that it contained a substantial cystic mass that was either a malignant or

borderline malignant cystadenocarcinoma. In his view, ‘substantial’ is an imprecise term that is inappropriate to describe any mass

found in a pelvic MRI. Modern MRI imaging software is replete with sophisticated tools for measuring volume, length, circumference

and so forth. The ovary itself was normal in volume and size. If ‘substantial’ was intended to mean enlarged, neither the ovary nor any

cyst within it met that criterion. MRI is poor at early detection of ovarian cancer precisely because it cannot resolve small volume

malignant disease and because it is poor at differentiating such small changes from a myriad of benign entities. These are pathologies

that pathologists struggle to identify under the microscope.

98. Professor Lawler acknowledged that, because MRI is a sophisticated technology, it is often perceived by lay persons as an

infallible diagnostic one, before going on to state that it is not approved either nationally or internationally as an ovarian cancer

screening tool because it has consistently failed in that task. In his own practice, he had rarely if ever diagnosed organ confined

ovarian carcinoma in normal sized ovaries through such imaging. Sometimes, that diagnosis was made retrospectively after a patient’s

ovaries had been surgically removed for other reasons (and, presumably, some tissue had been histopathologically examined). In those

situations, where it transpired that the patient had previously undergone a hip or pelvic MRI, Professor Lawler was often asked to go

back and look at the images to see if anything had been missed but could never find anything. He observed that, unfortunately, MRI

works best in imaging ovarian cancer in those patients who benefit least from it, which is to say that it is good at characterising

established disease but poor at excluding small organ confined disease.

99. Professor Lawler explained that the only tool accepted currently to triage patient risk for ovarian cancer is the Risk of Malignancy

Index or RMI, which is based on ultrasound features of malignancy, menopausal status and biochemical CA-125 level. CA-125 is a

protein marker that is a cancer antigen and there is a blood test for it. Levels increase sharply in people with ovarian cancer, though

not necessarily in the early stages of the disease. Those levels also rise in the presence of a variety of other conditions. Thus, while

a useful diagnostic tool, a CA-125 test is not definitive either way.

100. In cross-examination, it appeared to be suggested to Professor Lawler that Dr Q should have sought to convene a

multidisciplinary team meeting (‘MDM’) in respect of Ms L. It was common case between the experts that MDMs are now a common

feature of care and treatment in major cancer centres. Such meetings are attended by a combination of specialists (such as

oncologists, radiologists, pathologists, gynaecologists and clinicians) involved in the treatment or care of patients who have been

diagnosed with cancer or, at the very least, who are the subject of a very high index of suspicion of cancer. The suggestion on

behalf of Ms L that Dr Q should have sought to convene an MDM appeared, in turn, to be the intended gateway for the argument

that, having done so, Dr Q, a consultant radiologist, should then have suggested or directed, as part of his duty of care, a CA-125

blood test, or a CT scan, or a laparoscopy for Ms L, beyond the MRI scan of her pelvis upon which he had already reported.

101. Professor Lawler’s evidence was that such multidisciplinary team meetings are conducted almost universally for patients with an

established cancer or, at the very least what he described as a post-operative ‘confounder’. Hospitals would not have the capacity to

convene an MDM for every patient whose non-specific symptoms are under investigation simply because a diagnosis of ovarian cancer

consistent with those symptoms has not yet been excluded, and no such practice exists.

102. On behalf of Ms L, it was put to Professor Lawler that, in effect, Dr Q should have been particularly alert to, or focussed upon,

the risk of ovarian cancer in reviewing the June 2016 MRI scan. For example, it was suggested to him that Ms L’s reported symptoms

at that time were not merely consistent with ovarian cancer but, in counsel’s words, ‘shouted it out’. Professor Lawler responded that

that would be like concluding that, if everyone with tuberculosis has a cough, then everyone with a cough has tuberculosis. Professor

Lawler estimated that, for every five thousand pre-menopausal women who present at his clinics, half would present with abdominal

pain, bloating and bowel disturbance, whereas fortunately, less than 1 in 1,000 of the latter cohort will have ovarian cancer.

103. In relation to the suggestion that the reference in the MRI scan referral letter from Ms L’s gynaecologist to the ‘need to out-rule

ovarian mass’ was language intended to indicate concern about the possibility of ovarian cancer, Professor Lawler observed that 80%

to 90% of the ovarian masses found in women under 50 are not cancer. More fundamentally, Professor Lawler stated that, whether

there was a high or low pre-existing suspicion of ovarian cancer, the level of suspicion should not have affected the manner in which

the the relevant tests were done and Dr Q had done them appropriately.

104. Counsel for Ms L was critical of Professor Lawler’s inability to understand what Professor Whitehouse had meant when, in his

evidence in chief, he had referred to the septation he perceived across a single lobulated cystic mass in Ms L’s right ovary as ‘quite

substantial.’ Professor Lawler was asked to consider the contents of a paper in Radiology, the journal of the Radiological Society of

North America, entitled Management of Asymptomatic Ovarian and Other Adnexal Cysts Imaged at US: Society of Radiologists in

Ultrasound Consensus Conference Statement (Vol. 256: Number 3 - September 2010, 943). In particular, counsel pointed to the

following text, at the commencement of a paragraph headed ‘Cysts with Characteristics Worrisome for Malignancy: Sonographic

Features and Recommendations’ (at 948):

‘Thick septations (≥3 mm), solid elements with flow at Doppler US, and focal areas with wall thickening (≥3 mm) are very

worrisome for a malignant neoplasm, particularly when seen in association with omental or peritoneal masses or a

moderate or large amount of ascitic fluid in the pelvis ….’

105. In a telling exchange, counsel for Ms L put it to Professor Lawler that Professor Whitehouse’s use of the term ‘substantial

septation’ should be understood in close relation to the term ‘thick septation’ as employed by the Society of Radiologists panel.

Professor Lawler made two observations in response. First, as the earlier part of the text of the Conference Statement makes plain,

there is no radiological reporting requirement at all in the context of any cyst of 3 cm or less in diameter in a woman of reproductive

age. The diameter of Ms L’s right ovary (not to mention that of any cyst within it) was reported as just less than 2.5 cm in the June

2016 MRI scan. Second, the septation that Professor Whitehouse referred to as ‘quite substantial’ measured 1.89 mm (significantly

less than 3 mm) and could not, therefore, have been considered ‘thick’ as the Conference Statement employs that term. Professor

Lawler might have added that the term ‘substantial septation’ is given no definition in that Conference Statement and is, thus, devoid

of objective meaning in that context.

The principles governing claims of medical negligence

106. The parties made no submission to the court on the applicable law. The controlling authority on the particular principles that

govern claims of medical negligence remains the decision of the Supreme Court in Dunne v National Maternity Hospital [1989] IR 91

(per Finlay CJ, Griffin and Hederman JJ concurring). The principles of direct or potential relevance in this case are the first five. They

are stated as follows (at 109):

‘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.’

Findings on negligence

107. In conducting the live ultrasound examination in March 2016, Dr Q had full control of the imaging process and the benefit of

moving images in real time; Professor Whitehouse was viewing only a limited number of still images from that examination and was

doing so while subject to the risk of hindsight bias.

108. In reviewing the results of the June 2016 MRI scan, Dr Q did so contemporaneously and Professor Lawler did so blind. Professor

Whitehouse was, once again, subject to the risk of hindsight bias because he was aware of Ms L’s later diagnosis when he did so.

Professor Whitehouse stated that he tried hard to avoid the element of retrospection but I cannot be satisfied that his efforts were

successful.

109. Both Dr Q and Professor Lawler were able to demonstrate that each had reviewed the relevant imaging by reference to objective

criteria set out in widely accepted guidelines for cancer detection; e.g. whether the ovaries were enlarged beyond a specified normal

size range; whether septation thicker than 3 mm was visible in a cyst or cysts larger than 3 cm; whether nodules or papillae were

present in any cyst; whether blood flow was present or absent in any such nodule or papilla, and so on. The review conducted by

Professor Whitehouse was more impressionistic and much less clearly or obviously linked to any identified objective criteria or

published guidelines.

110. It is principally for those reasons that I prefer the evidence of Dr Q and Professor Lawler to that of Professor Whitehouse on

each of the points in controversy between them.

111. Thus, I find that there was no failure of care on the part of Dr Q, nor did he deviate from any general or approved practice, nor

did he follow any general or approved practice that was subject to an obvious inherent defect. He acted with the ordinary care which

a medical practitioner of equal status and skill should have shown. It follows that, applying the Dunne principles, the plaintiffs have

failed to discharge the onus of proof necessary to establish negligence on the part of Dr Q in the context of the failure to diagnose

Ms L’s ovarian cancer prior to November 2017.

Conclusion

112. The plaintiffs’ claim is dismissed.