Emma Mhic Mhathúna and her five children 'to seek exemplary and aggravated damages' over CervicalCheck case in High Court
Emma Mhic Mhathuna and her five children are to seek exemplary and aggravated damages when their case over alleged delays relating to CervicalCheck smears goes ahead in the High Court in a few weeks time.
Her barrister told the court on Thursday there has been no substantive admission of liability in the case from the HSE and it is a source of torment, anguish and very hard to explain to the woman who has terminal cancer and is dying.
Patrick Treacy SC, for Ms Mhic Mhathuna, said it will be maintained from this date the HSE should have conceded liability and the failure to do so has caused undue anguish and torment.
"We give notice that exemplary damages will be sought," he said.
Mr Justice Kevin Cross said he appreciated it was a very emotional case. These were very sad cases but counsel had made a speech and could have included these matters in letters between solicitors, he said.
The judge said he was not there to receive statements which could be delivered on the steps of the court. Mr Treacy said his solicitor had written on Tuesday of this week to the HSE asking them to admit full liability.
Patrick Hanratty SC for the HSE said the case involved alleged breach of duty and alleged breach of care and these have to be investigated. It was unfair to have these comments made in public against the HSE at this time, he said.
The case had come before the court on Thursday for case management after Ms Mhic Mhathuna had on Wednesday asked the HSE to make a decision on its stand on liability within the next 24 hours.
Her counsel at that time said Taoiseach Leo Varadkar and the Minister for Health had said everything will be done and nobody will be forced to got to court and there would be mediation. she wanted the case settled as quickly as possible, he said. The HSE responded that it could not realistically make a decision on full liability in 24 hours.
Mr Treacy, on Thursday, SC said what he was making was a legal statement and pointed out the position of the HSE in this case was contradicting what the Taoiseach and Minister for Health have said.
"We now have a legal reality exemplary and aggravated damages will be sought in the case," he added.
He accepted that not all cases of misdiagnosis result in an admission of liability but this case was different.
He said the case centred on a 2013 smear sample slide but last Monday the Mhic Mahathuna side found there was a 2010 slide which was allegedly misread.
Counsel said at that time the Ms Mhic Mhathuna should have been recalled for a mandatory procedure.
"We have a situation where Ms Mhic Mhathuna is not just saying there is one but two misread and that liability is not immediately conceded is a source of grave torment to her . It is very difficult to explain to her why liability is in issue," Mr Treacy said.
Mr Justice Cross said he thought the lawyers on both sides had done everything in their power and those representing the defendants in the case also had obligations to their clients.
The judge hearing the case he said will consider all matters and a decision will be made as soon as possible, he said.
The hearing date for the case was set for the end of this month.