Tuesday 28 January 2020

The wrong was so great, her message so powerful - Vicky's story has saved lives

Vicky Phelan has saved many women from tragedy after taking on the might of the State, writes her solicitor Cian O'Carroll

STRENGTH: Vicky Phelan photographed in Limerick yesterday Photo: Fergal Phillips
STRENGTH: Vicky Phelan photographed in Limerick yesterday Photo: Fergal Phillips

Cian O'Carroll

A week ago, Vicky Phelan wasn't just fighting a cancer that doctors have told her will claim her life; she was fighting the HSE and its subcontracted US laboratory in the High Court.

The case that she and her husband Jim had taken - for what medical experts have described as a lethal misdiagnosis - had by then been going on for two days and showed no signs of settling. It was a full fight and Vicky and Jim had been told by me and the rest of their legal team to expect it to go the distance, perhaps two or even three weeks. 

By last Wednesday, however, the case had settled for record damages and, with a huge groundswell of support and empathy from people across the nation, Vicky called for some meaning to be put on her and her family's sacrifice. She demanded change and, incredibly, she got it.

When I first met Vicky, just 11 weeks ago, she made it clear she wanted to make a difference with her case.

She insisted that she would not agree to any confidentiality clause and, above any settlement terms, she wanted to change the way CervicalCheck did its business. She was determined to be an instrument for change. Even though time was of the essence and the challenge was to complete her case in just 10 weeks, she was clear that there was to be no compromise on this point.

She knew that in 2011, the smear test she had undergone with CervicalCheck had been misreported as 'normal' when in fact the laboratory to whom this work was contracted in Austin, Texas, should have reported that the slide showed very advanced abnormalities indicative of a squamous cell carcinoma. Cancer.

She learned of this misreporting from her gynaecologist only last September but had understood that this was a relatively recent discovery. What she learned through the process of her legal proceedings in recent weeks was to shock her - CervicalCheck had known about this error since October 2014 and withheld the information. To this day, CervicalCheck has not faced Vicky - nor has it explained why it decided to keep her in the dark. In the end, it was her gynaecologist who told her, apparently against the guidance he had been given by CervicalCheck.

Had she died in the meantime, as others had, the written instruction from CervicalCheck was to merely file the record of the mistake on the patient's chart - shamefully suggesting that there was no need to tell the family.

From the outset, there was no doubting that Vicky Phelan was a determined woman, but I suspect on learning the true extent of the misconduct at CervicalCheck, further steel was added to her resolve.

Despite a vigorous defence being mounted against her case by both the State and its contracted laboratory, and with no sign of compromise in sight, she showed tremendous courage by instructing us that she would rather fight this trial to the end than agree to a confidentiality clause. Their conduct would not be swept under a carpet or a cheque-book because it was only by telling her story that she believed, rightly, change could come about.

And so Vicky went to trial, gave her evidence, impressed us all - and the judge - with her passion for life and her love for her family. It was an emotional day in court and most of those present were moved to tears. It must have exhausted Vicky and she was in a lot of pain but she did what had to be done with good cheer and a smile.

Then the next day, while the trial continued without her, she and Jim went to their daughter's Confirmation - nothing would get in the way of that.

In the few days since last Wednesday, something about the words Vicky spoke outside court, and perhaps the way she spoke them, moved so many people that the State had to act. The wrong was so great, the conduct so shameful and the message so well communicated by a remarkable woman that she did precisely what she set out to do, she effected change.

By achieving precisely what she set out to do, Vicky Phelan has saved women's lives; I suspect many lives.

This weekend, as the apologies pile up; of ministers and HSE officials, of a Taoiseach and a Tanaiste, with announcement of reviews, of regime change at CervicalCheck, and even wide-eyed hope for the dawn of open disclosure and a moral decency being put at the heart of the health service's approach, it is worth remembering that it is just a week since all that might and power of State was lined up against Vicky Phelan in Court 2 at the Four Courts.

A lot has changed in that time.

Cian O'Carroll is a solicitor with Cian O'Carroll Solicitors

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