Sunday 25 August 2019

Eilish O'Regan: 'Other potential victims will benefit from this bitter-sweet test case'

'Ms Morrissey's action was billed as a test case because it was the first to go to full hearing and be contested by the CervicalCheck laboratories in the US and Ireland where her tests were carried out' (stock photo)
'Ms Morrissey's action was billed as a test case because it was the first to go to full hearing and be contested by the CervicalCheck laboratories in the US and Ireland where her tests were carried out' (stock photo)
Eilish O'Regan

Eilish O'Regan

It was another bittersweet day on the steps of the Four Courts for a seriously ill woman caught up in the CervicalCheck crisis.

First it was Vicky Phelan, then the late Emma Mhic Mhathúna and now the turn of Ruth Morrissey, who emerged with a €2.1m award from a legal battle after getting cervical cancer following incorrect smear test results.

Ms Morrissey's action was billed as a test case because it was the first to go to full hearing and be contested by the CervicalCheck laboratories in the US and Ireland where her tests were carried out.

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Legal sources say it helped to clarify crucial issues which should make it easier for women who have a valid case for negligence to secure a settlement, sparing them a long drawn out and emotionally draining hearing.

Women who have developed cancer after getting an incorrect test result and who take legal action on negligence will still have to prove their case whether they go before the High Court or opt for the State tribunal which is expected to be set up later this year.

However, as a result of the Ruth Morrissey ruling there is now more clarity on what standard of care is to be expected from laboratories.

Yesterday's case was also important in indicating that women can now just sue the HSE and not have to also include the labs.

It set out the primary liability of the State for the organisation and running of the screening programme.

This should simplify the legal process.

Should a woman who takes a case be awarded compensation it will not have to be paid by the HSE, which is indemnified by the laboratories.

The HSE will then seek that the laboratories pick up the tab for damages which in turn will protect funding for the screening programme.

The next step is to pass the legislation to set up a tribunal to hear cases brought by women and bereaved relatives.

These will be heard in private except in exceptional circumstances, but the standard of proof will be on a par with that demanded in the High Court.

For women outside the CervicalCheck 221 group, there is the ongoing concern about delays in the return of smear tests.

The HSE said that to date it has have undertaken a full market analysis exercise and has made contact with all suitable laboratories to clear the backlog of 80,000 tests.

"We have ongoing engagement with existing private providers to source additional cytology screening staff, and have worked with other private providers and a host of international public service screening programmes worldwide to assess the potential for additional laboratory capacity," said a spokeswoman.

"At this stage over half of samples received by the labs are having cytology processed within 15 weeks."

A delay of up to 33 weeks pose a very low risk to women, she said.

Irish Independent

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