Welcome clarification from the Supreme Court of Ireland on key clinical negligence principles and damages
Ruth Morrissey and Paul Morrissey v Health Service Executive, Quest Diagnostics Incorporated and Medlab Pathology Limited [19.03.20]
Handed down on 19 March 2020, the Supreme Court of Ireland’s judgment in this case upheld the decision of the High Court of Ireland on liability, with some useful clarifications, while overturning an important finding of the High Court on quantum. Issues in relation to the relevant standard of care for screening and recoverability of certain heads of damage have now been further clarified.
Kennedys represented Medlab Pathology Limited in this Supreme Court appeal.
Ms Morrissey took part in the CervicalCheck screening programme in August 2009 (smear test result reported by Quest Diagnostics Incorporated) and again in August 2012 (smear test result reported by Medlab Pathology Limited). In both instances Ms Morrissey’s smear tests were reported as negative for abnormalities. However, in May 2014 Ms Morrissey attended her GP following symptomatic bleeding and shortly thereafter she was diagnosed with cervical cancer.
As part of the CervicalCheck screening programme, audits are conducted in respect of screening histories of those patients who receive a diagnosis of cervical cancer, the purpose being to enable the screeners and the laboratory to review the quality of the testing and make improvements where necessary. Audits were carried out in September 2014 in relation to Ms Morrissey’s samples (collected in 2009 and 2012) and both sample results were upgraded on audit (meaning that abnormal cells were detected and reported in the audit). The results of the audit were communicated by the Health Service Executive (HSE) to Ms Morrissey in mid-2018.
Judgment in the first instance was delivered by Mr Justice Kevin Cross in the High Court of Ireland on 3 May 2019.
Judgment was given in favour of the plaintiffs, against all three defendants. Damages in the sum of €2,152,508 were awarded, with an additional sum of €10,000 nominal damages awarded against the HSE in relation to its “negligence in relation to the audit”.
The defendants appealed liability, with Medlab appealing quantum also. The appeal ultimately became a ‘leapfrog appeal’ to the Supreme Court of Ireland, which was expedited due to Ms Morrissey’s deteriorating health.
The Supreme Court decision
Standard of care
The Supreme Court held that there was no new 'absolute confidence' test applicable to assess the standard of care in screening cases. The test to establish the applicable legal standard of care in clinical negligence claims remains that as set out in Dunne v National Maternity Hospital . The Supreme Court emphasised that the Dunne principles are as applicable to questions of screening, as to diagnosis and treatment.
Ultimately, the Supreme Court held that a screener should not label a sample as negative if they have any doubt in relation to the result or the adequacy of the sample.
Chief Justice Clarke made some very interesting obiter comments (i.e. in passing, on a matter arising which did not require a decision) in relation to whether loss of chance is a recoverable head of loss in the Irish jurisdiction. Although not part of the Morrissey appeal, Clarke CJ favourably discussed the Judgment of Justice Fennelly in the Supreme Court of Ireland case of Philp v Ryan  in commenting that, in an appropriate case, loss of chance is a recoverable head of loss:
“...the approach identified in Philp v Ryan is that, in the types of cases to which it applies, it is appropriate to award damages which are broadly proportionate to the likelihood of a benign or improved outcome, so that the relevant damages would approximate to full damages if there is a very significant likelihood of a benign or improved outcome in the absence of negligence but that limited but proportionate damages would be awarded even if there was a less than 50% probability of a benign or improved outcome, but some realistic possibility of such a consequence.”
Clarke CJ’s obiter comments with regard to the recoverability for loss of chance tends to reinforce the position adopted in Philp v Ryan and, arguably, paves the way for setting the Irish jurisdiction on a divergent course from the law in England and Wales in this regard, as expressed in the House of Lords decision in Greg v Scott .
Non-delegable duty and vicarious liability
An important aspect of the Supreme Court Judgment was in relation to its findings that the HSE was, prima facie, primarily liable to Ms Morrissey, by virtue of owing her a non-delegable duty of care. The Supreme Court quoted favourably from the test laid down by Lord Sumption in Woodland v Essex County Council , the seminal case in England and Wales on non-delegable duty of care. The Supreme Court held that the HSE had taken responsibility for the CervicalCheck screening programme irrespective of whether the actual screening was outsourced to others. The ramifications of this finding could be significant for the State in terms of its potential liabilities when outsourcing contracts to third parties.
The Supreme Court did, however, determine that the HSE was not vicariously liable for the actions of the laboratories, by virtue of their relationship as independent contractors, and given the limited level of control exercised by the HSE over the activities of the laboratories. The Supreme Court clarified the appropriate test for establishing vicarious liability, concluding that:
“…the ultimate question which the Court must address is as to whether the level of engagement by one party with the way in which the other party is to carry out a task entrusted to it is sufficient to conclude that there is a real extent to which it can be said that the contracted party is closely integrated into the activities of the employer, not just in respect of the ends to be achieved but as to the manner in which those ends are to be pursued.”
General damages cap
The Supreme Court upheld the findings of the Trial Judge that the ‘cap’ on general damages now stands at €500,000. Further, that the award to Ms Morrissey of the maximum cap was proportionate, in circumstances where the court held that the injuries suffered by Ms Morrissey were of “that most serious type”. This was held to be the appropriate category, despite the injuries suffered differing in nature to those types of injuries to which the maximum limit for catastrophic damages are usually awarded.
Damages for loss of services
Medlab was successful in its appeal on a seminal issue in relation to quantum.
The High Court awarded Mr Morrissey damages to compensate him for the cost of care and domestic services for his daughter and himself, which in the ordinary course would have been provided by Ms Morrissey if she had had a normal life expectancy. Medlab appealed this aspect of the Judgment on the basis that an award of this nature is only recoverable as part of a dependency claim under Part IV of the Civil Liability Act 1961 (as amended).
The Supreme Court overturned the High Court decision and accepted Medlab’s appeal. It did so on the basis that damages for loss of services and loss of domestic assistance can only be recovered in an action brought by dependants under the Civil Liability Act 1961. The Court also held that if there are to be changes to this complex area of law this should only be carried out through considered legislative intervention.
This Supreme Court decision provides clarification on a number of complex issues.
The clarification from the Supreme Court that there is no new ‘absolute confidence’ test applicable in clinical negligence claims involving screening should be welcome reassurance to both practitioners and insurers. The well-established Dunne principles remain the applicable test for diagnosis, treatment and screening. The Supreme Court’s finding that damages for loss of services/care are only recoverable as part of a dependancy claim under the Civil Liability Act 1961 will potentially herald a significant change in how plaintiffs in Ireland pursue claims under this head of damage, with a resultant anticipated reduction in damages awards.