Sunday 22 September 2019

Pregnant woman's missed cancer diagnosis case settled in secret

HSE director general Tony O'Brien said he had no awareness of the case

Tony O’Brien, director general of the HSEPhoto: Tom Burke
Tony O’Brien, director general of the HSEPhoto: Tom Burke

Shane Phelan and Kevin Doyle

A lawsuit with striking similarities to the Vicky Phelan case was settled in secret four years ago.

The woman at the centre of the case, taken against a US laboratory and initially the HSE, had to sign a confidentiality agreement as a condition of her settlement, which involved no admission of liability.

She took the case after a smear-test analysis missed abnormalities. The woman discovered she had cervical cancer only the following year after undergoing tests when she became pregnant.

Despite the HSE being listed as a co-defendant in the proceedings, its director general Tony O’Brien told an Oireachtas committee yesterday the organisation had no awareness of the case at all.

The primary defendant was New Jersey-based firm Quest Diagnostics, one of three laboratories used as part of CervicalCheck, the national cervical cancer screening programme.

The woman also initially indicated she was suing the HSE, a Dublin hospital and a hospital consultant in the action. However, it is understood the lawsuit was primarily defended by the laboratory. The case was settled by the laboratory in 2014 and the other co-defendants were not pursued further.

The lawsuit has striking echoes of the Vicky Phelan case. Ms Phelan’s €2.5m settlement with Clinical Pathology Laboratories also came with no admission of liability. She was also requested to sign a confidentiality agreement but refused to do so.

The woman at the centre of the earlier case underwent a smear test in 2011, but abnormalities were missed when this was analysed.

She discovered she had cancer when she became pregnant in 2012. The baby was safely delivered by caesarean section and she recovered from the cervical cancer. However, the woman was unable to have more children, because she had to undergo a hysterectomy.

Quest Diagnostics did not respond to queries submitted by the Irish Independent. There was also no response yesterday from the HSE press office.

HSE director general Mr O’Brien told the Oireachtas Health Committee he learned of the settled case only after seeing a reference to it in a media report.

The reference to the settled case was in an Irish Independent article published yesterday.

“We’re aware from media reports today of another case that the State Claims Agency (SCA) was not involved in. It was a private case. It was reported that it was settled by one of the laboratories,” he said.

The State Claims Agency handles negligence claims on behalf of 146 public bodies, including the HSE.

Labour TD Alan Kelly asked whether the HSE or Department of Health were aware of this case “and if so, are they aware that a non-disclosure agreement was signed on the case”.

Mr O’Brien replied: “The report in the media makes that reference. We had no awareness of that case at all.”

The committee heard there was “no mechanism” for the State Claims Agency to alert the HSE or Department of Health when a number of similar cases are lodged. In total, the committee heard there were 10 “active cases” involving the CervicalCheck programme.

Six of these have reached the point of legal proceedings, while the other four were described as being at “pre-legal proceedings” stage.

The SCA has now also warned the HSE about one further “potential claim”.

Earlier in the Dáil, Taoiseach Leo Varadkar said he did not wantto “sick or terminally ill people dragged through the courts”.

“Nobody wants to see prolonged legal cases going on for years. The public does not want that either. It is not in anyone’s interest. It is not in the interest of taxpayers in the long run,” he said.

Mr Varadkar claimed that records provided by the National Treasury Management Agency and the State Claims Agency show that “98pc of medical negligence cases are settled or dropped and do not go to trial”. 

“Only about 2pc go to a contested court hearing and those 2pc often go to court because facts or claims are contested.  There will always be a certain percentage where the facts or claims are contested,” Mr Varadkar said.

“In Vicky Phelan’s case, as the deputy knows, the case against the HSE was struck out but the laboratory settled for €2.5m without accepting liability. 

“While there may not have been legal liability on the State, I think there was moral liability on the State to ensure that she got the information about the case that she should have got.  There was a breach of duty to ensure that occurred.”

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