By Ann O'Loughlin
Kerry mother Emma Mhic Mhathuna and her five children are to seek exemplary and aggravated damages when their case over alleged delays relating to CervicalCheck smears goes ahead in the High Court in a few weeks time.
The hearing date for the case was set today for June 29.
Her senior Counsel today told the High Court there has been no substantive admission of liability in the case from the HSE and that is a source of torment and anguish and very hard to explain to the mother who has terminal cancer and is dying.
Patrick Treacy SC for Ms Mhic Mhathuna said it will be maintained from this date the HSE should have conceded liability and the failure to do so has caused undue anguish and torment.
"We give notice that exemplary damages will be sought," Counsel said.
Mr Justice Kevin Cross said he appreciated it was a very emotional case and these were very sad cases but he said counsel had made a speech and could have included these matters in letters between solicitors.
The judge said he was not there to receive statements which could be delivered on the steps of the court.
Mr Treacy said his solicitor had written on Tuesday of this week to the HSE asking them to admit full liability.
Patrick Hanratty SC for the HSE said the case involved alleged breach of duty and alleged breach of care and these have to be investigated. He said it was unfair to have these comments made in public against the HSE at this time.
The case had come before the court today for case management after Ms Mhic Mhathuna had on Wednesday asked the HSE to make a decision on its stand on liability within the next 24 hours.
Her counsel at that time said Taoiseach Leo Varadkar and the Minister for Health had said everything will be done and nobody will be forced to got to court and there would be mediation. The mother of five wanted the case settled as quickly as possible, he said.
Counsel for the HSE Patrick Hanratty SC said it was the first they had heard of being asked to decide on liability in the next 24 hours.He said the HSE realistically could not make a decision on full liability in 24 hours.
In court today Pat Treacy SC said when the case was previously mentioned the court had said the court was not the place for political statements.
Counsel said this was acceptable and what he was making was a legal statement and pointed out the position of the HSE, in this case, is contradicting what the Taoiseach and Minister for Health have said.
"We now have a legal reality exemplary and aggravated damages will be sought in the case," he added.
He said he accepted that not all cases of misdiagnosis result in an admission of liability but this case was different.
He said the case centred on a 2013 slide but last Monday the Mhic Mahathuna side found there was a 2010 slide which was allegedly misread. Counsel said at that time the Ms Mhic Mhathuna should have been recalled for a mandatory procedure.
"We have a situation where Ms Mhic Mhathuna is not just saying there is one but two misread and that liability is not immediately conceded is a source of grave torment to her . It's is very difficult to explain to her why liability is in issue," Mr Treacy said.
Mr Justice Cross said he thought the lawyers on both sides had done everything in their power and those representing the defendants in the case also had obligations to their clients.
The judge hearing the case he said will consider all matters and a decision will be made as soon as possible. The hearing date for the case was set for June 29.