Sunday 25 August 2019

Terminally-ill mother settles court case over alleged CervicalCheck slide misinterpretation for €2.5m

The High Court, Dublin
The High Court, Dublin

Tim Healy

A mother-of-two who is terminally ill with cancer and who sued in relation to the alleged misinterpretation of her CervicalCheck smear slide today settled her case for €2.5 million.

The woman, who is in her 40s, has Stage 4 invasive cancer and has a life expectancy of 12 to 22 months, the High Court heard.

The settlement of the action taken by the woman and her husband is against a US laboratory in Austin, Texas, which tested her smear slide in 2010 and reported it as negative.

The settlement was announced in the High Court this morning on day five of the case.

Patrick Treacy SC, instructed by Cian O'Carroll solicitor for the woman and her husband, told the court the laboratory, Clinical Pathology Laboratories Incorporated of Austin, Texas has admitted a breach of duty in the reading of the woman's 2010 cervical smear slide.

The couple cannot be identified by order of the court.

The case against two other laboratories and the HSE was struck out.

Mr Justice Kevin Cross congratulated the parties on reaching a settlement on what was a complicated case.

Earlier, the couple’s two young children were joined to the proceedings and Mr Justice Cross heard the damages award is to couple and their children.

Mr Justice Cross wished the family well for the future and said they had showed great courage in bringing the case.

The woman thanked the judge for his time.

Outside court the couple's solicitor Cian O'Carroll read a statement on the woman's behalf.

The woman said she didn't think that she would have to take this legal road just travelled, but she said she was left with no choice.

"The last few months have been so stressful for me and my family just that thought of facing court as I recover from the last treatments of chemotherapy. I am glad now that this battle is over but I am still leaving here with cancer," she said.

She said the CerevicalCheck controversy shocked the nation and it shocked her.

“We were all let down. We all heard declarations that no woman would have to go to court and that all the women caught up in this  scandal  would get support. We were under the illusion that this would would happen but it was just that - an illusion."

She questioned why was her case not included in the audit which took place.

"How many more women are there like me, excluded from the 221 figure of and the helpful supports rightly given to that group." she said,

Mr O’Carroll said the woman and her husband are hugely relieved and the settlement will provide for the necessary comfort and care at home in what is a very dire prognosis situation.

He said it will provide comfort for the woman in her last days and also in the knowledge that provision has been made for her children.

The woman was given the news that she had cervical cancer just a few days before Christmas 2015 and told the court she was she was crying when she was putting her children's presents under the Christmas tree.

"I was crying. I did not know what was ahead of me," she said.

She suffered a cancer recurrence two years later and in September last year was told her cancer is inoperable.

Her husband in his evidence to the court said after the CervicalCheck controversy broke last year, he thought they would get help and be "looked after.”

"We got no contact. We are very disappointed and let down. Anything we had to do, we had to do ourselves. We got hope, but nothing came of it," he told Mr Justice Kevin Cross.

He added: “It was very hard to take, and I felt did anyone care."

The man broke down as he told he does not know what future his family has.

"I am scared, I am worried about the children and will I be able to look after them," he said.

He said his beautiful wife and mother of his two children had to shave off her hair as she underwent six cycles of chemotherapy after they were told her cancer is inoperable.

"The children wanted to know why was her hair gone and we told them Mammy got medicine and had to have her hair off."

The court heard the woman, who had treatment in 2015, was devastated when the cancer returned two years later and the "Rubicon moment" her counsel said was when she was told in September last year her cancer was inoperable.

Mr Justice Cross was also told that the woman does not now feel right in herself and they are now awaiting the outcome of a further scan carried out as the action began before the High Court last week.

At the opening of the case Patrick Treacy SC said the "real tragedy" was that had the 2010 smear test been correctly reported, the woman would have had an investigative procedure and been treated appropriately, he said.

Her case was that had she undergone a procedure to excise the pre-cancerous lesion there was a 95 per cent chance of being cured and a less than 1pc chance of the cancer developing, he said.

The couple had sued the HSE along with two companies which provided medical diagnostic services in the State, Sonic Healthcare (Ireland) Ltd with registered offices at Sandyford Business Park, Dublin and  Medlab Pathology Ltd with offices at Sandyford Business Park, Dublin and US laboratory Clinical Pathology Laboratories Incorporated of Austin, Texas.

It was claimed they all owed the woman a a duty of care in the provision of the cervical screening programme and in the provision of all services associated with it.

The woman on September 17, 2010 underwent a cervical smear test as part of the national cervical screening programme.

Her sample was sent for review and a laboratory report showed the sample was satisfactory for assessment and there was no evidence of the presence of abnormal tissue.

It was claimed there was an alleged failure to correctly report and diagnose and there was an alleged misinterpretation of the woman's smear slide taken in 2010 and that her cancer was allowed to develop and spread unidentified, unmonitored  and untreated until she was diagnosed with cervical cancer in December 2015.

The claims were denied.

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