Tuesday 14 August 2018

Mother diagnosed with terminal cancer launches High Court Action over incorrect smear test results

Vicky Phelan with husband, Jim of Annacotty, Co Limerick leaving the High Court in Dublin yesterday after the first day of the hearing. Photo: Courtpix
Vicky Phelan with husband, Jim of Annacotty, Co Limerick leaving the High Court in Dublin yesterday after the first day of the hearing. Photo: Courtpix

Tim Healy

A 43-year old mother of two who has terminal cervical cancer has launched a High Court action after it emerged the result of a smear test seven years ago - which showed no abnormalities - was later in a review found to be incorrect.

Vicky Phelan's counsel told the court if her cervical cancer had been detected in 2011 when she had that smear test the young mother could have had a simple procedure and there was a 90 per cent chance she could have been cured.

Jeremy Maher SC said experts on the Phelan side will say she would not have developed invasive cancer and would have survived into her 80s.

"On January 29 this year Ms Phelan was given between six months and 12 months to live," counsel  said.

He added: "She should have another 40 years to look forward to but she has a couple of months."

But he said the mother who has recently started on new drug has not given up and is hoping to be accepted on to a US programme offer radical innovative treatment.

In the action by Ms Phlean and her husband Jim, there is also a claim for aggravated and exemplary damages over the alleged failure to tell Ms Phelan for three years that a review of her 2011 smear test showed the original result of no abnormalities was incorrect.

Ms Phelan, a university educational manager, of Carrigeen, Annacotty, Co Limerick along with her husband Jim Phelan has sued the HSE and Clinical Pathology Laboratories Inc, Austin, Texas in the US over a smear test taken under the National Cervical Screening Programme CervicalCheck and analysed in the US laboratory.

The test of May 24 2011 showed no abnormality was detected and Ms Phelan was advised by letter in June 2011 the smear test detected no abnormalities.

She had another test in June 2014 and when it was sent off for analysis it showed a high grade lesion and Ms Phelan was referred to a consultant. In July of that year Ms Phelan was diagnosed with cervical cancer and underwent radical chemoradiotherapy.

It is claimed that subsequent to her cancer diagnosis and unknown to her a review was carried out of previous smear tests from women who had a cancer diagnosis. A review of the May 2011 sample from Ms Phelan showed the original report in relation to the smear was incorrect and the smear test showed suspected cancerous cells.

In September 2017, Ms Phelan was advised of the review and in November she was diagnosed with an incurable Stage 4 cancer.

It is claimed the alleged failure to diagnose the 2011 smear test sample caused a situation whereby Ms Phelan's cancer was allowed to develop and spread unidentified, unmonitored and untreated until she was diagnosed with cancer in July 2014.

The claims are denied.

Opening the case Mr Maher said an expert on their side will say there were plentiful abnormal cells in the 2011 smear sample and and the failure to identify them allegedly amounted to a clear breach of duty.

He said Ms Phelan was reassured when she was told there were no abnormalities and she would not need a check for another three years.

In 2014  Ms Phelan was called for a smear test but it was very bad news and she was referred to a consultant for what counsel described as a series of invasive treatments, he said.

She generally felt well in 2015 and 2016 but re-attended in September 2017 for a CT scan and counsel said at this stage she was told of an audit of cervical smears from 2011 which was carried out in 2014.

In evidence Ms Phelan told of her anger that it was three years before she was told a review of her smear test which came back with the result of no abnormalities was incorrect.

She said her first reaction when she heard that information was available for three years was a cover up.

“If I was told sooner, I would not be in the position of a terminal cancer diagnosis. I am very angry about it, ” she said.

She said if she knew of the result of the review when it was carried out she would have asked for more scans.

The case continues.

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