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Friday 23 August 2019

Ruth Morrissey cervical case appeal to be heard by Supreme Court

Ruth Morrissey. Photo: Collins Courts
Ruth Morrissey. Photo: Collins Courts

Tim Helay

The Supreme Court has agreed to hear an appeal in November against a key High Court judgment in the case of terminally-ill woman Ruth Morrissey.

The HSE and two laboratories had argued that findings in the High Court judgment of Mr Justice Kevin Cross have far-reaching consequences for the Cervical Check tribunal, other litigation about cervical cancer, cancer-screening services and medical diagnosis generally.

The concerns of the HSE, Quest Diagnostics Ireland Ltd and Medlab Pathology Ltd, centre on a finding that screeners should have "absolute confidence" about the adequacy of a slide sample and that a test result has no abnormalities before passing it as clear.  

READ MORE: Harris vows Morrissey will be paid full €2.1m 

They say that introduces a standard in the relevant legal test for negligence that is incompatible with cervical cancer screening.

The Morrisseys dispute that the judgment means what the HSE and labs say it means or that it has the far-reaching consequences which the HSE and labs maintain it has. However, the Morrisseys' lawyers said they would agree to a Supreme Court appeal confined to the issue of standard of care.

The three-judge Supreme Court said on Friday it would hear an appeal because the matter is urgent and the Cervical Check tribunal would be “significantly circumscribed” in its work if there remains doubt about the standard of care to be applied in cervical-cancer screening.

The chief Justice, Mr Justice Frank Clarke, said the court would also address wider grounds of the appeal, including a claim by Medlab that some of the €2.1m damages awarded to Ms Morrisey and her husband Paul were not properly recoverable in the case.

The government has said, irrespective of the outcome, Ms Morrissey will retain the €2.1m damages.

In the ruling today, the Chief Justice, Mr Justice John MacMenamin and Ms Justice Iseult O'Malley, agreed to hear a "leapfrog" appeal over three days in November, beginning November 4.

An appeal is normally brought to the Court of Appeal, but the Supreme Court can permit that route to be by-passed and hear an appeal itself, bringing finality to litigation.

The Chief Justice said the appeal would be confined to the grounds on which leave has been granted and that would require some reformulation of the grounds advanced by the sides.

The Morrisseys' lawyers have argued that - because the HSE has not made submissions about standard of care matters in the High Court and instead left those issues to the labs to argue - then the HSE should not be permitted to argue standard-of-care issues in the Supreme Court appeal.

The Supreme Court has said the Morrissey side can make that argument during the appeal. 

Ms Morrissey was diagnosed with cervical cancer in 2014. The High Court case related to cervical smears taken under the CervicalCheck screening programme in 2009 and 2012. She was not told until May 2018 that a 2014 review showed two smears taken under the programme were reported incorrectly.

The couple were awarded €2.1m in damages and will retain that, effectively through an "ex gratia" payment.

The HSE and State Claims Agency, as manager of all cervical-cancer litigation, consider that the "absolute confidence" standard has potentially serious implications in a much wider context, including in relation to diagnosis. The HSE is also appealing the High Court findings concerning primary and vicarious liability.

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