Tuesday 14 August 2018

'There are no winners here today' - Mother-of-two dying of cancer following incorrect test result agrees €2.5m settlement

"My settlement will mostly be spent on buying me time and on paying for clinical trials to keep me alive and to allow me spend more time with my children"

Vicky Phelan of Annacotty, Co Limerick Photo: Courtpix
Vicky Phelan of Annacotty, Co Limerick Photo: Courtpix

Tim Healy

A 43-year old mother of two dying of cervical cancer who had sued over a smear test taken seven years ago has settled her High Court action for €2.5million.

Vicky Phelan launched the legal proceedings after it emerged her smear test which showed no abnormalities was later in a review found to be incorrect.

She told the High Court she was extremely angry she was not told of the 2014 review of her smear test for another three years.

“I was in shock when I was told. I am angry, extremely angry. If I was diagnosed I probably would have had to have a procedure and at worsen a hysterectomy." she said.

She added: "If I was told sooner I would not be in a position of a terminal cancer diagnosis."

Outside court Mrs Phelan called for an investigation in to the CervicalCheck screening programme.

Speaking outside court Vicky Phelan called for an investigation in to the CervicalCheck screening programme.

"To know for almost three years a mistake had been made and I was misdiagnosed was bad enough but to keep that from me until I became terminally ill and to drag me through the courts to fight for my right to the truth is an appalling breach of trust and I truly hope some good will come of this case and there will be an investigation in the CervicalCheck programme as a result of this."

Ms Phelan broke down in tears as she thanked her husband Jim and family.

"To my family and friends and my supporters who supported my decision to take this case at a time I really should be concentrating on my health, I would not have been able to do this without you." she said.

She added; "There are no winners here today, I am terminally ill and there is no cure for my cancer. My settlement will mostly be spent on buying me time and on paying for clinical trials to keep me alive and to allow me spend more time with my children."

"If I die -  I truly hope that won't be the case - the money will provide for my family," she said as her husband Jim comforted her.

She thanked her solicitor Cian O'Carroll and her legal team for believing in her and bringing the case before the courts so quickly.

She also thanked Mr Justice Kevin Cross who heard three days of evidence before the settlement was announced and said he was at all times conscious she was a terminally ill woman.

Ms Phelan said evidence of a medical expert on their side in court on Tuesday had led to the settlement of the case.

Test

Mrs Phelan was given the tragic news last January that without palliative chemotherapy she has just six months to live and with the chemotherapy about twelve months.

Her counsel Jeremy Maher SC instructed by Cian O’ Carroll solicitor told the court at the outset of the case if Mrs Phelan’s 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.

Counsel said experts on the Phelan side would say she would not have developed invasive cancer and would have survived into her 80s, but she will die by the end of the year .

"She should have another forty years to look forward to but she has a couple of months, “Counsel said.

On the fourth day of the hearing today the young mother and her husband Jim  were in court as the settlement was announced. The court was was asked to make directions in relation to the part of the settlement which is for the Phelan children Amelia (12) and Darragh (7).

Mr Justice Kevin Cross said he was delighted the case had settled. Approving the settlement he said Ms Phelan was one of the most impressive witnesses he had co me across in his court.

The case against the HSE was struck out and the settlement was against the US laboratory Clinical Pathology Laboratories Inc, Austin, Texas only. The settlement was without admission of liability.

Wishing tMs Phelan success in the future  as she attempts to go to the US for groundbreaking treatment the judge said : “ If anyone can beat this you can.”

The judge also praised the legal teams for getting the case which was only started inFebruary this year to court in record time.

 The mother of two who has recently started on new drug is still hopeful of being accepted on to the US programme offering radical innovative treatment and has already raised €200,000 though a Go Fund Me page.

In the action by Ms Phelan and her husband Jim there was 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.

University educational manager Vicky Phelan, of Carrigeen, Annacotty, Co Limerick along with her husband Jim Phelan had 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 smear 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 smear 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 was 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 and was given a life expectancy of between six and twelve months.

It was 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.

It was further claimed she was deprived of the opportunity of timely and effective investigation and management of her condition and deprived of the opportunity of treatment at a time when her disease was amenable to curative treatment.

The claims were denied.

Opening the case Jeremy Maher SC for the Phelans said an expert on their side would 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.Counsel said Vicky 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 Counsel said it was very bad news. and she was referred to a consultant for what counsel described as a series of invasive treatments.

She generally felt well in 2015 and 2016 but reattended 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.

"For the first time she was made aware the smear test report of 2011 was incorrect and in fact it was an incorrect result," Mr Maher said.

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