Tuesday 20 August 2019

Cervical case judgment to 'leapfrog' the Appeal Court

Ruth Morrissey. Photo: Collins Courts
Ruth Morrissey. Photo: Collins Courts

Tim Healy

The Supreme Court has agreed to hear an appeal in November against a key High Court judgment in the case of terminally ill Ruth Morrissey.

The HSE and two laboratories had argued findings in the High Court judgment of Mr Justice Kevin Cross have far-reaching consequences for the CervicalCheck tribunal, other litigation about cervical cancer, screening services and medical diagnosis generally.

The concerns of the HSE, Quest Diagnostics Ireland Ltd and Medlab Pathology Ltd centre on a finding that screeners should have "absolute confidence" about the adequacy of a slide sample and a test result has no abnormalities before passing it as clear.

They say that introduces a standard in the relevant legal test for negligence that is incompatible with cervical cancer screening.

The Morrisseys dispute the judgment has the consequences contended for, but their lawyers said they would agree to a Supreme Court appeal confined to the issue of standard of care.

The three judge Supreme Court said yesterday it would hear an appeal because the matter was urgent and the CervicalCheck tribunal would be "significantly circumscribed" in its work if there remained doubt about the standard of care to be applied in cervical cancer screening.

Chief Justice Mr Justice Frank Clarke said the court would also address wider grounds of the appeal, including a claim by Medlab, that some of the €2.1m damages awarded to Ms Morrissey and her husband Paul were not properly recoverable in the case.

The Government has said that, irrespective of the outcome, Ms Morrissey would retain the €2.1m damages.

In the ruling yesterday, the Chief Justice, Mr Justice John MacMenamin and Ms Justice Iseult O'Malley agreed to hear a "leapfrog" appeal over three days in November, beginning November 4.

An appeal is normally brought to the Court of Appeal but the Supreme Court can permit that route to be by-passed and hear an appeal itself, bringing finality to litigation.

The Chief Justice said the appeal would be confined to the ground on which leave has been granted and that would require some reformulation of the grounds advanced by the sides.

The Morrisseys are not precluded from arguing the HSE is not permitted argue the standard of care grounds in the appeal in circumstances where the HSE had not made submissions on that issue in the High Court, he said.

Ms Morrissey was diagnosed with cervical cancer in 2014 and the High Court case related to cervical smears taken under the CervicalCheck screening programme in 2009 and 2012.

She was not told until May 2018 that a 2014 review showed two smears taken under the programme were reported incorrectly.

Irish Independent

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