CervicalCheck Cancer Misdiagnosis
Cian O’Carroll medical negligence solicitors have been to the fore in the CervicalCheck cancer misdiagnosis scandal since we represented Vicky Phelan and Jim Phelan in their landmark case that concluded in April 2018 when they achieved damages of €2.5m and blew the lid on a scandal that rocked the HSE and led to hundreds of other women and families learning of failures that prevented their cancers being identified earlier. For some that delay in diagnosis and treatment has cost them their lives and for many more, it has caused horrific lifelong suffering due to the extensive nature of the surgery, chemotherapy and radiotherapy treatments that the required – all harm that was avoidable had the HSE, CervicalCheck and the laboratories that they outsourced to been operated to the correct standard of care.
After Vicky Phelan’s case, our medical negligence solicitors represented the late Emma Mhic Mhathúna, Ruth and Paul Morrissey, Patricia and Damien Carrick and many others who chose to maintain their privacy and were not named publicly.
Each of these families stood up to the State and to its outsourced laboratories in different ways and circumstances but with equal courage and tenacity while they faced the challenges and fears of an incurable cancer diagnosis. Vicky led the way, refused to be silenced and allowed the Nation to discover what was happening in the CervicalCheck cancer misdiagnosis scandal, both in terms of the misdiagnoses and the failure of that health agency to disclose the findings of its audits to patients. Emma fought ferociously for her children. Knowing that her time was short, she achieved record damages of €7.5m with breakneck speed, just 10 weeks from beginning to end of her High Court proceedings and forced Quest Diagnostics to admit liability for negligently misreading not just one but two of her smear tests, years apart. They ultimately made a public apology to her in Court. Ruth and Paul were chosen by the State and two of the outsourced laboratories (Medlab and Quest) to be the test case and everything was thrown at them in Court. Their case became the longest medical negligence trial in history running to 36 days and even when they won their case, being awarded €2.16m, the State and the laboratories appealed the decision at a time when Ruth was dying and in obvious pain and distress. Ruth lived just long enough to see the Supreme Court of Ireland unanimously find in her favour and establish the test in law that must now be used for all the other women and families who will walk on the trail she blazed.
Patricia Carrick and her husband Damien were the first to bring an urgent action in the wake of Ruth’s Supreme Court victory. Among other things, the Morrissey decision held that the HSE had a primary responsibility for the management and operation of CervicalCheck (a point they had up to then strenuously denied). This meant that we were able to bring Patricia and Damien’s case solely against the HSE. Although Patricia was gravely ill when her case concluded in a ‘steps of court’ settlement for €2.75m, she resisted the efforts of the HSE to undermine the Morrissey judgment by joining the testing laboratory Quest to the case and she achieved the first HSE admission of liability and apology in court.
Each case in turn has been of huge importance to the many other women and families who have been affected by these issues, left to fight the State and the HSE who failed them with a defective screening programme and then failed them again when it failed to address the appalling consequences of its negligence with a humane and responsive redress scheme.
Our work in these cases and many other CervicalCheck cancer misdiagnosis scandal cases has been both a privilege and a challenge, but we have done our best to achieve just outcomes for our clients and continue to do so.
In all, over 300 women or their families have now taken legal action arising from the CervicalCheck scandal, the vast majority of whom have chosen the court route as opposed to the alternative court process established by the Government of Ireland known as the CervicalCheck Tribunal.
After Vicky Phelan’s case, our medical negligence solicitors represented the late Emma Mhic Mhathúna, Ruth and Paul Morrissey, Patricia and Damien Carrick and many others who chose to maintain their privacy and were not named publicly.
Each of these families stood up to the State and to its outsourced laboratories in different ways and circumstances but with equal courage and tenacity while they faced the challenges and fears of an incurable cancer diagnosis. Vicky led the way, refused to be silenced and allowed the Nation to discover what was happening in the CervicalCheck cancer misdiagnosis scandal, both in terms of the misdiagnoses and the failure of that health agency to disclose the findings of its audits to patients. Emma fought ferociously for her children. Knowing that her time was short, she achieved record damages of €7.5m with breakneck speed, just 10 weeks from beginning to end of her High Court proceedings and forced Quest Diagnostics to admit liability for negligently misreading not just one but two of her smear tests, years apart. They ultimately made a public apology to her in Court. Ruth and Paul were chosen by the State and two of the outsourced laboratories (Medlab and Quest) to be the test case and everything was thrown at them in Court. Their case became the longest medical negligence trial in history running to 36 days and even when they won their case, being awarded €2.16m, the State and the laboratories appealed the decision at a time when Ruth was dying and in obvious pain and distress. Ruth lived just long enough to see the Supreme Court of Ireland unanimously find in her favour and establish the test in law that must now be used for all the other women and families who will walk on the trail she blazed.
Patricia Carrick and her husband Damien were the first to bring an urgent action in the wake of Ruth’s Supreme Court victory. Among other things, the Morrissey decision held that the HSE had a primary responsibility for the management and operation of CervicalCheck (a point they had up to then strenuously denied). This meant that we were able to bring Patricia and Damien’s case solely against the HSE. Although Patricia was gravely ill when her case concluded in a ‘steps of court’ settlement for €2.75m, she resisted the efforts of the HSE to undermine the Morrissey judgment by joining the testing laboratory Quest to the case and she achieved the first HSE admission of liability and apology in court.
Each case in turn has been of huge importance to the many other women and families who have been affected by these issues, left to fight the State and the HSE who failed them with a defective screening programme and then failed them again when it failed to address the appalling consequences of its negligence with a humane and responsive redress scheme.
Our work in these cases and many other CervicalCheck cancer misdiagnosis scandal cases has been both a privilege and a challenge, but we have done our best to achieve just outcomes for our clients and continue to do so.
In all, over 300 women or their families have now taken legal action arising from the CervicalCheck scandal, the vast majority of whom have chosen the court route as opposed to the alternative court process established by the Government of Ireland known as the CervicalCheck Tribunal.
Cervical Cancer Screening Programme Overview
CervicalCheck is an agency of the HSE and is the national cervical cancer-screening programme. Its aim is to prevent cervical cancer from developing by detecting pre-cancerous abnormalities before they develop into an invasive cancer. This is done through a test called a smear test whereby a sample of cells is gathered from a woman’s cervix and then examined under microscope by laboratory scientists who are trained to identify the characteristics of pre-cancerous abnormality.
Screening is performed at regular intervals for the female population from the age of 25 years and all aspects of this process are managed by CervicalCheck; from identification of the women at age 25 through to invitations and reminders to attend their doctor for the smear test and on to the laboratories where the smear tests are reported on to the next stages that will involve either dairying forward for the next smear test where the result is normal or taking the appropriate action should abnormalities be detected.
Without detection and treatment, it takes pre-cancerous cells on average 8 to 12 years to develop into an invasive cancer. If a woman receives an abnormal smear result under the programme, then recommendations are made for further management depending on the nature of the abnormality. A recommendation might include a repeat smear in three months, a repeat smear after six months or if referral to colposcopy for further investigation.
Colposcopy is the process of examining the surface of the cervix with a special microscopy called a colposcope and this examination is performed for the purpose of examining the cervix for signs of abnormality and also to take a biopsy or sample of the tissue for more detailed examination by a pathologist.
While CervicalCheck is a screening service, it also plays a role in diagnosing cervical cancer and arranging for the primary treatment of cervical cancer by making referrals to colposcopy for further investigations when an abnormality is picked up. This is because CervicalCheck often reports on the smear which leads to the investigations required to make the diagnosis of cervical cancer (i.e. a result of “query squamous cell carcinoma” can be made by CervicalCheck) and this triggers a referral to hospital for investigation.
Further while it is an asymptomatic service (i.e. women are referred to CervicalCheck based on age with no symptoms) women can also have a smear referred to CervicalCheck for review after presenting to their GP with worrying symptoms or indeed smears are regularly referred to CervicalCheck for review when a patient is attending colposcopy for follow up.
What are the medical negligence issues involved?
Abnormalities will be missed in even the best screening programme. Sometimes abnormalities present at the cervix will not be evident on on the smear slide. Other times they may be present in such small quantities that it is not reasonable to criticise a screener, exercising ordinary care, for failing to identify. What happened in the landmark case of Vicky Phelan and those that came after that - such as the late Emma Mhic Mhathuna and Ruth Morrissey - was different however. These women and many others all had a smear test or tests (some with three, four and more false negatives) that were reported as normal but in fact contained a sufficiently obvious or apparent quantity of abnormal cells such that the screener had not taken reasonable care in the performance of their duty. Where that happens, the law calls it a breach of duty and if it is shown that harm has been caused by this, an allegation of negligence will be successful.
It may be obvious, but the harm caused by a negligently misread smear test is that a pre-cancer or cancer is allowed to progress to a more advanced and serious stage, likely requiring more aggressive or invasive treatment. The affected woman may suffer devastating and life changing consequences with hysterectomy, chemotherapy or radiotherapy becoming necessary. In the most tragic of cases the woman will lose her life leaving families behind without their mother, wife, partner, daughter, sister and friend.
A diagnosis of cervical cancer can affect every aspect of the woman’s life and that of her family. The harm is not only physical, it is emotional, psychological and often financial.
In some cases, there are invasive treatments and extensive surgeries required to treat the cervical cancer (Pelvic Exenteration, Hysterectomy, Oophorectomy, Trachelectomy, Lymphadenectomy, Cone Biopsy, Chemotherapy, Radiotherapy and Brachytherapy). We are often told by our clients that the treatment seems worse than the cancer.
The after-effects of the treatment can impact on every aspect of life from the ability to carry out day to day activities to their ability to work and earn a livelihood. The treatment will often have destroyed the woman’s fertility – whether by surgery, radiotherapy or both - leaving her without a family or unable to complete the family she has. There can be serious effects from the treatment including lymphoedema, bowel and bladder issues causing problems that are upsetting, devastating to lifestyle and deeply embarrassing. In many cases, a woman’s ability to have sexual intercourse or to engage in an intimate relationship is destroyed or rendered a source of pain rather than pleasure. This restriction on intimacy also clearly affects the partner of the woman involved and may be a contributing factor to relationship breakdown. For many, chronic fatigue will limit the ability to live a full or fulfilling life even further.
In addition to the physical injuries, the emotional and psychiatric harm to the woman is often significant. There is a new normal where the word cancer has entered her world and she often lives in persistent fear of recurrence. The effect of the cancer diagnosis and treatment, the impact on her private relationships, her ability to carry out her role like she did pre-cancer whether that is in the home or the work place together with the on-going physical consequences often take a grave toll emotionally.
As with any illness, financial troubles are a common companion of a cancer diagnosis, with loss of income, additional expenses and perhaps reduced income for a partner, whose life will also be turned upside down at this time. It all imposes an unwelcome financial burden on the household.
Where legal issues arise in screening, the medical negligence issues have tended to relate to:
Where legal issues arise in symptomatic presentation (where a woman reports symptoms to her GP that result in a referral to a consultant gynaecologist for investigation such as post-coital or inter-menstrual bleeding), the issues have tended to relate to:
We see the same legal issues arise in symptomatic cases as we do in screening cases (1-7 above). In addition, where symptomatic cases are concerned the following issues have also been noted:
What is involved in a case resulting from a CervicalCheck cancer misdiagnosis?
If the smear was misread to an unacceptable degree, the next step is to find out if that has caused the woman harm and then the extent of that harm. If and only if there has been a beach of duty resulting in harm, then the woman has a stateable case.
It is then necessary to document the various aspects of the woman’s injury, the harm it has caused and the financial consequences either in terms of care to date, future care, loss of earnings and other practical supports. It is important to document the full extent of the harm because ultimately the judge who will hear the case needs to decide on the appropriate level of damages having regard to all of the harm that was caused.
Urgent Case Progression
Unfortunately, we are often instructed by women who are terminally ill. In those cases, there may be a concern that the case will not be progressed quickly enough if it is not given some priority by the court. We have successfully brought many urgent case management applications to the High Court; asking that the case be prioritised and effectively allowing us to fast track matters for our clients. In those cases, we have been able to conclude matters for our clients in a matter of weeks/ months – in complex and high-value cases that would ordinarily take several years to conclude. It is very important that as a practice we have this specialisation because where an injured party dies before their case is concluded, the case can be reconstituted to provide for the ongoing and future financial needs of their dependants but the right to compensation for that deceased person’s loss of life and their pain and suffering dies with them. In a fatal case that will very often amount to the maximum general damages award of €500,000.
If a loved one has already passed away
We are instructed by many families who have already lost their loved one to this terrible disease and we are experienced in bringing wrongful death and nervous shock proceedings for these families and dependants.
Other issues which arise:
There is also provision for anonymity in the courts in appropriate circumstances. We have brought a number of cases for women in the High Court who have been affected with cervical cancer and whose treatment was ongoing. In those cases, we have successfully applied to the court so that their identify could not be disclosed.
Some of the CervicalCheck Cancer Misdiagnosis Cases:
VICKY PHELAN & JIM PHELAN V. HSE & CLINICAL PATHOLOGY LABORATORIES INCORPORATED
Our work on the CervicalCheck case on behalf of Vicky and Jim Phelan shows the potential for complex litigation to proceed quickly through the courts. Our team took the case from initial instructions to trial in 10 weeks where it settled after three days at hearing for €2.5million. The case also provided a platform from which our client rocked the Health Service that had treated her so badly and this was a catalyst for reform that will save many lives and stand as a legacy to her strength of will and her courage.
THE LATE EMMA MHIC MHATHÚNA V HSE & QUEST DIAGNOSTICS INCORPORATED
Our work on the CervicalCheck case of the late Emma Mhic Mhathuna again shows the potential for a case to proceed through the courts quickly. This case was resolved 5 weeks after legal proceedings were issued in the sum of €7.5 million. The highlight was definitely the exuberance of Emma at the High Court on a sunny June day, wearing the red dress chosen by her beloved five children and looking so well in it. It became an iconic image of her courage and strength.
Emma correctly challenged the litigation system and how things were done. She did this for her children and she was right to do so. While the settlement could not undo the harm that had been done to Emma which ultimately resulted in her losing her life and her children losing their mother, the settlement did ensure that the important and necessary provision for her children was put in place before she died and that is what she wanted from the case; to know her children would be provided for in the ways that she could manage.
RUTH MORRISSEY & PAUL MORRISSEY V HSE, QUEST DIAGNOSTICS INCORPORATED & MEDLAB PATHOLOGY LIMITED
We acted for Ruth and Paul Morrissey in the long running CervicalCheck test case. An inspiring family, they have been put through a very hard time by the State both medically and legally. They won their legal battle in the High Court following a record 36 day long medical negligence trial. For the first time a Court had measured the correct damages in a CervicalCheck case and awarded €2.16m including general damages for Ruth's pain and suffering and loss of life at the maximum figure allowed in Irish law of €500,000. The rest was made up of necessary care costs, future care for her family and her loss of earnings.
Within days of the judgment, senior figures in the health service and medical professions had met to plan a response to the judgement that was almost entirely misunderstood by doctors and certain parts of the media. Instead of seeking to be informed about the true meaning and significance of this judgment, they launched a media campaign that sought to raise the spectre of the collapse of screening in Ireland. This rightly drew comment and criticism from the judiciary - but in the end it succeeded to the extent that the State launched an appeal to the Court of Appeal and simultaneously to the Supreme Court who allowed a leap-frog appeal on an urgent basis given the circumstances. The Government confirmed subsequently that they felt obliged to launch the appeal because of the strength of feeling and concern among the medical profession, despite the Taoiseach's prior commitment to Ruth Morrissey that she would not have to go to Court to prove her case.
In November 2019 the Supreme Court sat for two days and heard argument from all parties as both laboratories had joined the State in the appeal. The issues were numerous and have important ramifications for cases well beyond CervicalCheck, cancer screening and even beyond medical negligence.
In March 2020 the Supreme Court delivered its judgment and upheld the High Court finding that the HSE has primary responsibility for the operation and failings of CervicalCheck. In other words, the State cannot outsource its responsibility to foreign or private entities unbeknownst to the patients it serves. Moreover, the Court confirmed the application of the test in negligence for screeners - sometimes called 'the Absolute Confidence' test but more correctly called an 'Absence of Doubt' test. If a screener examines a slide and has a doubt that there may be an abnormality, then they cannot pass that slide as normal. Instead they must pass it to a cytologist who is a doctor so that he or she can review the slide and make a final decision.
There were several other important aspects to the judgment that add to the importance of the judgment but at its core, the judgement clarifies the legal rights of those affected by negligence in the CervicalCheck service and will help and guide all those other women and their families who hopefully will be spared the ordeal that Ruth, Paul and their family went through over a 20 month period. The positive effects both for those affected and the wider health service will stand as a legacy for Ruth and Paul.
CASES WHERE IDENTITY PROTECTED
Over the past two years, Cian O’Carroll Solicitors have successfully concluded five other CervicalCheck cases for ladies with cervical cancer. The “E” case, “K” case, “M” case, “S” case and “M” case. All of these cases were progressed on a case managed basis i.e. there were given priority by the High Court due to the health of the women involved and effectively dealt with in a very short period of time. This highlights the efficiency and experience the High Court has in dealing with these complex medical negligence cases and disposing of them in record time. It further shows how the privacy of women can be protected by the courts while at the same time ensuring that justice is administered in public.
END
CervicalCheck is an agency of the HSE and is the national cervical cancer-screening programme. Its aim is to prevent cervical cancer from developing by detecting pre-cancerous abnormalities before they develop into an invasive cancer. This is done through a test called a smear test whereby a sample of cells is gathered from a woman’s cervix and then examined under microscope by laboratory scientists who are trained to identify the characteristics of pre-cancerous abnormality.
Screening is performed at regular intervals for the female population from the age of 25 years and all aspects of this process are managed by CervicalCheck; from identification of the women at age 25 through to invitations and reminders to attend their doctor for the smear test and on to the laboratories where the smear tests are reported on to the next stages that will involve either dairying forward for the next smear test where the result is normal or taking the appropriate action should abnormalities be detected.
Without detection and treatment, it takes pre-cancerous cells on average 8 to 12 years to develop into an invasive cancer. If a woman receives an abnormal smear result under the programme, then recommendations are made for further management depending on the nature of the abnormality. A recommendation might include a repeat smear in three months, a repeat smear after six months or if referral to colposcopy for further investigation.
Colposcopy is the process of examining the surface of the cervix with a special microscopy called a colposcope and this examination is performed for the purpose of examining the cervix for signs of abnormality and also to take a biopsy or sample of the tissue for more detailed examination by a pathologist.
While CervicalCheck is a screening service, it also plays a role in diagnosing cervical cancer and arranging for the primary treatment of cervical cancer by making referrals to colposcopy for further investigations when an abnormality is picked up. This is because CervicalCheck often reports on the smear which leads to the investigations required to make the diagnosis of cervical cancer (i.e. a result of “query squamous cell carcinoma” can be made by CervicalCheck) and this triggers a referral to hospital for investigation.
Further while it is an asymptomatic service (i.e. women are referred to CervicalCheck based on age with no symptoms) women can also have a smear referred to CervicalCheck for review after presenting to their GP with worrying symptoms or indeed smears are regularly referred to CervicalCheck for review when a patient is attending colposcopy for follow up.
What are the medical negligence issues involved?
Abnormalities will be missed in even the best screening programme. Sometimes abnormalities present at the cervix will not be evident on on the smear slide. Other times they may be present in such small quantities that it is not reasonable to criticise a screener, exercising ordinary care, for failing to identify. What happened in the landmark case of Vicky Phelan and those that came after that - such as the late Emma Mhic Mhathuna and Ruth Morrissey - was different however. These women and many others all had a smear test or tests (some with three, four and more false negatives) that were reported as normal but in fact contained a sufficiently obvious or apparent quantity of abnormal cells such that the screener had not taken reasonable care in the performance of their duty. Where that happens, the law calls it a breach of duty and if it is shown that harm has been caused by this, an allegation of negligence will be successful.
It may be obvious, but the harm caused by a negligently misread smear test is that a pre-cancer or cancer is allowed to progress to a more advanced and serious stage, likely requiring more aggressive or invasive treatment. The affected woman may suffer devastating and life changing consequences with hysterectomy, chemotherapy or radiotherapy becoming necessary. In the most tragic of cases the woman will lose her life leaving families behind without their mother, wife, partner, daughter, sister and friend.
A diagnosis of cervical cancer can affect every aspect of the woman’s life and that of her family. The harm is not only physical, it is emotional, psychological and often financial.
In some cases, there are invasive treatments and extensive surgeries required to treat the cervical cancer (Pelvic Exenteration, Hysterectomy, Oophorectomy, Trachelectomy, Lymphadenectomy, Cone Biopsy, Chemotherapy, Radiotherapy and Brachytherapy). We are often told by our clients that the treatment seems worse than the cancer.
The after-effects of the treatment can impact on every aspect of life from the ability to carry out day to day activities to their ability to work and earn a livelihood. The treatment will often have destroyed the woman’s fertility – whether by surgery, radiotherapy or both - leaving her without a family or unable to complete the family she has. There can be serious effects from the treatment including lymphoedema, bowel and bladder issues causing problems that are upsetting, devastating to lifestyle and deeply embarrassing. In many cases, a woman’s ability to have sexual intercourse or to engage in an intimate relationship is destroyed or rendered a source of pain rather than pleasure. This restriction on intimacy also clearly affects the partner of the woman involved and may be a contributing factor to relationship breakdown. For many, chronic fatigue will limit the ability to live a full or fulfilling life even further.
In addition to the physical injuries, the emotional and psychiatric harm to the woman is often significant. There is a new normal where the word cancer has entered her world and she often lives in persistent fear of recurrence. The effect of the cancer diagnosis and treatment, the impact on her private relationships, her ability to carry out her role like she did pre-cancer whether that is in the home or the work place together with the on-going physical consequences often take a grave toll emotionally.
As with any illness, financial troubles are a common companion of a cancer diagnosis, with loss of income, additional expenses and perhaps reduced income for a partner, whose life will also be turned upside down at this time. It all imposes an unwelcome financial burden on the household.
Where legal issues arise in screening, the medical negligence issues have tended to relate to:
- A woman / family has been identified as one of the 221 women/ families affected by the CervicalCheck audit which came to light in the wake of the Vicky Phelan trial in April 2018
- The Independent Expert Review of Cervical Screening undertaken by the Royal College of Obstetricians and Gynaecologists (RCOG) has identified discordance in cytology relating to a woman who has had a diagnosis of cervical cancer
- Failure to identify pre-cancerous abnormalities on a smear sample.
- Failure to report a smear as inadequate for evaluation. This happens when a smear is deemed to be sufficient for interpretation when in fact there are not enough cells on the smear sample for a reliable review and reliable result.
- Incorrect classification of an abnormality of a smear sample. This means identifying an abnormality but misreporting the category and therefore the seriousness of the specific abnormality. For example, a low-grade abnormality is reported when it ought to have been reported as a high-grade abnormality. Where this happens, the woman may still be referred for colposcopy but she may not have a biopsy taken that would otherwise have confirmed a diagnosis at an earlier time.
- Failing to recall a patient at an appropriate interval. Under the CervicalCheck screening programme women are routinely called back at 3 (women aged 25 to 45) and 5 year intervals (women 45 and older). If a woman is called back after 5 years when she ought to have been called back after 3 years, then this may have delayed picking up an abnormality by 2 years.
- Delay in the reporting of a slide and communication of abnormality back to the patient / clinician. This can result in a delay in diagnosis of an abnormality and also critical delay to the commencement of treatment.
Where legal issues arise in symptomatic presentation (where a woman reports symptoms to her GP that result in a referral to a consultant gynaecologist for investigation such as post-coital or inter-menstrual bleeding), the issues have tended to relate to:
We see the same legal issues arise in symptomatic cases as we do in screening cases (1-7 above). In addition, where symptomatic cases are concerned the following issues have also been noted:
- Failure on the part of a GP to advise / carry out a smear when one was clinically indicated
- Failure on the part of a GP to make a direct referral to colposcopy / specialist gynaecological opinion in the presence of worrying symptoms which warrant such a referral
- Failure on the part of a GP to package cytology appropriately
- Failure on the part of a GP to correctly set out relevant clinical history / symptoms on a CervicalCheck referral form
- Failure on the part of GP to follow up with the patient where required.
What is involved in a case resulting from a CervicalCheck cancer misdiagnosis?
- Steps involved in a case
If the smear was misread to an unacceptable degree, the next step is to find out if that has caused the woman harm and then the extent of that harm. If and only if there has been a beach of duty resulting in harm, then the woman has a stateable case.
It is then necessary to document the various aspects of the woman’s injury, the harm it has caused and the financial consequences either in terms of care to date, future care, loss of earnings and other practical supports. It is important to document the full extent of the harm because ultimately the judge who will hear the case needs to decide on the appropriate level of damages having regard to all of the harm that was caused.
Urgent Case Progression
Unfortunately, we are often instructed by women who are terminally ill. In those cases, there may be a concern that the case will not be progressed quickly enough if it is not given some priority by the court. We have successfully brought many urgent case management applications to the High Court; asking that the case be prioritised and effectively allowing us to fast track matters for our clients. In those cases, we have been able to conclude matters for our clients in a matter of weeks/ months – in complex and high-value cases that would ordinarily take several years to conclude. It is very important that as a practice we have this specialisation because where an injured party dies before their case is concluded, the case can be reconstituted to provide for the ongoing and future financial needs of their dependants but the right to compensation for that deceased person’s loss of life and their pain and suffering dies with them. In a fatal case that will very often amount to the maximum general damages award of €500,000.
If a loved one has already passed away
We are instructed by many families who have already lost their loved one to this terrible disease and we are experienced in bringing wrongful death and nervous shock proceedings for these families and dependants.
Other issues which arise:
- Expression of Guilt
- Nature of the Injury is private
There is also provision for anonymity in the courts in appropriate circumstances. We have brought a number of cases for women in the High Court who have been affected with cervical cancer and whose treatment was ongoing. In those cases, we have successfully applied to the court so that their identify could not be disclosed.
Some of the CervicalCheck Cancer Misdiagnosis Cases:
VICKY PHELAN & JIM PHELAN V. HSE & CLINICAL PATHOLOGY LABORATORIES INCORPORATED
Our work on the CervicalCheck case on behalf of Vicky and Jim Phelan shows the potential for complex litigation to proceed quickly through the courts. Our team took the case from initial instructions to trial in 10 weeks where it settled after three days at hearing for €2.5million. The case also provided a platform from which our client rocked the Health Service that had treated her so badly and this was a catalyst for reform that will save many lives and stand as a legacy to her strength of will and her courage.
THE LATE EMMA MHIC MHATHÚNA V HSE & QUEST DIAGNOSTICS INCORPORATED
Our work on the CervicalCheck case of the late Emma Mhic Mhathuna again shows the potential for a case to proceed through the courts quickly. This case was resolved 5 weeks after legal proceedings were issued in the sum of €7.5 million. The highlight was definitely the exuberance of Emma at the High Court on a sunny June day, wearing the red dress chosen by her beloved five children and looking so well in it. It became an iconic image of her courage and strength.
Emma correctly challenged the litigation system and how things were done. She did this for her children and she was right to do so. While the settlement could not undo the harm that had been done to Emma which ultimately resulted in her losing her life and her children losing their mother, the settlement did ensure that the important and necessary provision for her children was put in place before she died and that is what she wanted from the case; to know her children would be provided for in the ways that she could manage.
RUTH MORRISSEY & PAUL MORRISSEY V HSE, QUEST DIAGNOSTICS INCORPORATED & MEDLAB PATHOLOGY LIMITED
We acted for Ruth and Paul Morrissey in the long running CervicalCheck test case. An inspiring family, they have been put through a very hard time by the State both medically and legally. They won their legal battle in the High Court following a record 36 day long medical negligence trial. For the first time a Court had measured the correct damages in a CervicalCheck case and awarded €2.16m including general damages for Ruth's pain and suffering and loss of life at the maximum figure allowed in Irish law of €500,000. The rest was made up of necessary care costs, future care for her family and her loss of earnings.
Within days of the judgment, senior figures in the health service and medical professions had met to plan a response to the judgement that was almost entirely misunderstood by doctors and certain parts of the media. Instead of seeking to be informed about the true meaning and significance of this judgment, they launched a media campaign that sought to raise the spectre of the collapse of screening in Ireland. This rightly drew comment and criticism from the judiciary - but in the end it succeeded to the extent that the State launched an appeal to the Court of Appeal and simultaneously to the Supreme Court who allowed a leap-frog appeal on an urgent basis given the circumstances. The Government confirmed subsequently that they felt obliged to launch the appeal because of the strength of feeling and concern among the medical profession, despite the Taoiseach's prior commitment to Ruth Morrissey that she would not have to go to Court to prove her case.
In November 2019 the Supreme Court sat for two days and heard argument from all parties as both laboratories had joined the State in the appeal. The issues were numerous and have important ramifications for cases well beyond CervicalCheck, cancer screening and even beyond medical negligence.
In March 2020 the Supreme Court delivered its judgment and upheld the High Court finding that the HSE has primary responsibility for the operation and failings of CervicalCheck. In other words, the State cannot outsource its responsibility to foreign or private entities unbeknownst to the patients it serves. Moreover, the Court confirmed the application of the test in negligence for screeners - sometimes called 'the Absolute Confidence' test but more correctly called an 'Absence of Doubt' test. If a screener examines a slide and has a doubt that there may be an abnormality, then they cannot pass that slide as normal. Instead they must pass it to a cytologist who is a doctor so that he or she can review the slide and make a final decision.
There were several other important aspects to the judgment that add to the importance of the judgment but at its core, the judgement clarifies the legal rights of those affected by negligence in the CervicalCheck service and will help and guide all those other women and their families who hopefully will be spared the ordeal that Ruth, Paul and their family went through over a 20 month period. The positive effects both for those affected and the wider health service will stand as a legacy for Ruth and Paul.
CASES WHERE IDENTITY PROTECTED
Over the past two years, Cian O’Carroll Solicitors have successfully concluded five other CervicalCheck cases for ladies with cervical cancer. The “E” case, “K” case, “M” case, “S” case and “M” case. All of these cases were progressed on a case managed basis i.e. there were given priority by the High Court due to the health of the women involved and effectively dealt with in a very short period of time. This highlights the efficiency and experience the High Court has in dealing with these complex medical negligence cases and disposing of them in record time. It further shows how the privacy of women can be protected by the courts while at the same time ensuring that justice is administered in public.
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LocationIndaville, Boherclogh, Cashel, Co. Tipperary, E25 V448
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