Saturday 22 September 2018

Cases against labs over cancer tests ‘just tip of iceberg’

Taoiseach Leo Varadkar wants similar cases settled quickly. Photo: PA
Taoiseach Leo Varadkar wants similar cases settled quickly. Photo: PA

Shane Phelan and Kevin Doyle

The case brought by Vicky Phelan was one of at least nine issued in recent years against laboratories whose services are used as part of the national cervical cancer screening programme.

But a solicitor involved in one of those cases has warned they are likely to be “just the tip of the iceberg”, with a flood of actions now likely.

The Irish Independent has learned of one case, issued in January against the HSE and MedLab Pathology Ltd, where a woman alleges she was given the all-clear for three successive years, only for her cancer to be detected retrospectively during an audit. The woman is currently receiving treatment and her prognosis is better than that of Ms Phelan, whose cervical cancer is terminal.

A spokesperson for MedLab said it could not comment as the case was before the courts.

The MedLab case is being taken by Cantillons Solicitors in Co Cork. A partner with the firm, Órla Kelly, said her client learned there were three occasions when abnormalities could have been detected but weren’t.

She said the firm had also been contacted by several other women with concerns in relation to their smear tests.

“It is the tip of the iceberg. I think in the next few weeks they [further cases] are going to start to emerge,” said Ms Kelly.

“People don’t know at this stage if they are one of those affected.”

Smear test readings for at least 208 women missed abnormalities, leaving them to develop cervical cancer.

Some 17 of these women died and 162 were also kept in the dark about the fact their scans were misread.

Another case, said by legal sources to be almost identical to the circumstances experienced by Ms Phelan, was issued against Quest Diagnostics two years ago. A request for comment from the US firm was not responded to last night.

The woman in this case is expected to survive but is understood to have endured significant and life-altering complications during her treatment.

The cervical cancer screening programme currently uses three laboratories. These are Quest Diagnostics in New Jersey, MedLab Pathology Ltd in Dublin and the Coombe Women and Infants University Hospital in Dublin.

MedLab is a sister firm of Clinical Pathology Laboratories, which was sued by Ms Phelan.

The mother-of-two’s case against the firm was settled for €2.5m.

According to High Court records, another case, where Clinical Pathology Laboratories is a co-defendant, was initiated in 2015.

Five cases have also been initiated in recent years where MedLab is a defendant or co-defendant. Similarly, five cases were also initiated in recent years where Quest Diagnostics is a defendant or co-defendant. One of these was settled in 2014.

In the Dáil, Taoiseach Leo Varadkar said he had asked the Attorney General “to examine if there are any outstanding cases that are similar that we may now be able to settle quickly without requiring further legal actions”. This would essentially cut across the work of the State Claims Agency.

Fianna Fáil leader Micheál Martin questioned how the Government is trying to heap blame on the SCA for allowing Ms Phelan’s case to get to court.

“It is a Government agency. It takes instructions. It is under the Department of Public Expenditure and Reform, yet in recent days the Government has been articulating a view that it is somewhere out there in

the ether and that it does its own work independent of anybody. That cannot be true,” he said.

“Likewise, senior people in the Department of Health must have known because it was said to me this morning that there were intense discussions between the Department of Health and CervicalCheck.”

Sinn Féin’s Mary Lou McDonald said the legal strategy pursued by the State “and stood over by the Government was shameful”.

She said the State had bullied Ms Phelan and then tried to silence her.

“This cannot happen again to any woman or any family that takes the State to task for its failures,” she said.

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