Kerry mother Emma Mhic Mhathúna settles case for €7.5m

By Ann O'Loughlin

Kerry mother Emma Mhic Mhathúna and her five children who sued over CervicalCheck smears have settled their legal action for €7.5m.

The 37-year old mother who has terminal cancer was in Court Number 2 of the Four Courts as Mr Justice Kevin Cross was told liability was also admitted in the case by the HSE and US laboratory Quest Diagnostics Incorporated.

Letters of apology from the HSE and Quest will also be sent to Ms Mhic Mhathúna the High Court was told.

Ms Mhic Mhathúna told the judge her children were very proud of her, she was glad it was over with and she can now enjoy time with her children.

"My daughter and sons are proud of me for getting an astronomical figure," she told the judge.

She said while her children were very proud of her, they were quite clear nothing would replace her.

Approving the settlement, Mr Justice Kevin Cross said Ms Mhic Mhathúna said she gave her children strength and they gave her strength. He noted that Ms Mhic Mhathúna wanted the settlement paid in to court for the benefit of her children.

Patrick Treacy SC for Ms Mhic Mhathúna instructed by solicitor Cian Carroll said the admission of liability by the HSE related to failing to disclose the findings of cervical cancer. Quest Diagnostics admitted misreading her two cervical smear slides in 2010 and 2013.

The settlement followed mediation talks.

The 37-year-old mother and her five children had sued the HSE, US testing lab, Quest Diagnostics Incorporated and the National Maternity Hospital. The case against the National Maternity Hospital was struck out.

Ms Mhic Mahathúna who is dying of cervical cancer wore a bright red off the shoulder Iong dress with a short train to court to hear the settlement approved by Mr Justice Kevin Cross.

The court heard she wants all the money paid into court for the benefit of her children.

The action centred on cervical smears the Kerry woman had in 2010 and 2013 and which it was claimed came back incorrectly as normal. Ms Mhic Mhathúna, who was diagnosed with cervical cancer in 2016 and was given a terminal prognosis just two months ago, claims she did not find out until the end of April this year the 2010 and 2013 smear was reported incorrectly.

Senior Counsel Patrick Treacy said the admission of liability from Quest Diagnostics related to the misreading of slides. He said Ms Mhic Mhathúna had a number of cervical smears in 2010, 2011, 2012 and 2013. The tests of 2010, 2011 and 2013 were incorrectly reported. The 2011 test he said was a false negative and the 2010 and 2013 slides were both misread and showed negative.

The effect, he said, of the results on the 2010 and 2013 slides was that Ms Mhic Mhathúna should have got a colposcopy procedure.

The mother, he said, was under the mistaken belief she did not have cell changes.

The mother of five claimed that by virtue of the delay in diagnosis, she had lost the opportunity of cure and her life expectancy had been drastically impaired.

She had also required, she contended, more extensive treatment than would have been otherwise required had her smear samples been correctly interpreted and reported on.

Following her diagnosis of cancer in September 2017, Ms Mhic Mhathúna underwent chemotherapy and radiotherapy but has since been advised her cervical cancer has spread to her lungs and spine and her prognosis is extremely poor and terminal.

Ms Mhic Mhathúna of Baile na nGall, Co Kerry, along with her daughter Natasha (15) and sons Seamus (11), Mario (10), Oisin (6) and Donnacha (2) had sued the HSE, which operates the CervicalCheck programme, US laboratory Quest Diagnostics Incorporated which processed, screened and reported on cervical cytology samples provided by Irish women. She had also sued the National Maternity Hospital, Holles Street, Dublin.

She claimed all three owed her a duty of care.

She claimed there was an alleged failure to correctly report or diagnose the smear test taken on July 10, 2013.

She claimed it was misinterpreted and that her cancer was allowed to develop and spread unidentified, unmonitored and untreated until she was diagnosed with cervical cancer around September 2016.

It was further claimed the HSE and Quest Diagnostics failed to advise her of the outcome of the reviews of her smear samples taken in 2011, 2012 and 2013.

The National Maternity Hospital, it was alleged failed, to advise Ms Mhic Mhathúna of the outcome of the reviews of her samples prior to April 29, 2018.

Her five children claimed they now face the premature and early demise of their mother and the consequent loss of all the nurture, care, opportunities and support which she would otherwise provide for them until they reach independent adulthood.

Against the HSE and Quest Diagnostics Incorporated, Ms Mhic Mhathúna had claimed they failed to use reasonable skill, care and judgment when reviewing her smear sample taken in 2013.

She further claimed she was deprived of the opportunity of timely and effective investigation and management of her condition and she was deprived of the opportunity of treatment at a time when her disease was amenable to curative treatment.

She had been occasioned to suffer unnecessary pain, discomfort and distress, she claimed and was subjected to extensive medical interventions and ultimately a terminal illness.

She alleged her life expectancy has been caused to be significantly reduced and her 2013 smear was allegedly misdiagnosed or misinterpreted.

She also claimed an alleged failure to advise her in a timely manner of the results of the smear test reviews infringed her constitutional rights to bodily integrity and privacy.

On July 10, 2013, Ms Mhic Mhathúna had a cervical smear test. Her smear tests of 2011 and 2012 had come back as normal. Her 2013 sample was sent to a Quest Diagnostics laboratory and a report prepared.

On August 8, 2013, she was advised by the HSE her smear test taken on July 10, 2013, detected no abnormalities. She had another smear test on August 19, 2016, and a result was sent for a colposcopy examination and a biopsy and was subsequently diagnosed as having invasive cancer cells and she underwent treatment between October and December 2016.

It is claimed that subsequent to her diagnosis and unknown to her reviews were carried out by the HSE and Quest of prior cervical screening of a number of women who had been diagnosed as having cervical cancer.

Ms Mhic Mhathuna ’s previous smear samples of 2011, 2012 and 2013 were reviewed between April and August 2017.

A review of the 2012 smear sample concluded the original report of the slide was correct and that no abnormality was detected. A review of the 2011 and 2013 smear tests showed that the original reports were incorrect.

It is claimed Ms Mhic Mhathúna was not told the results of the three reviews at that time.

It was claimed that the National Maternity Hospital was advised in December 2017 of the outcomes of the reviews, that the 2011 smear was no abnormality detected, but that the 2013 smear showed the presence of pre-cancerous cells.

It was claimed that she was contacted by telephone on April 29, 2018, and advised on behalf of her consultant at the National Maternity Hospital the review carried out of her 2013 smear showed the smear was reported incorrectly.

In April and May this year Ms Mhic Mhathúna was advised she has suffered a recurrence of her cervical cancer and her prognosis is terminal.

The State Claims Agency issued a statement following the settlement of the Emma Mhic Mhathúna case.

They said: "This case, the successful result of which was reported to the High Court today, was resolved in accordance with the principles outlined by the Government last month, which focus on expediting resolution of all cases in a sensitive manner, working co-operatively with the co-defendant laboratories, utilising mediation and placing a high priority on treating people with dignity and compassion.

"The SCA fully engaged with the Laboratory and its legal teams in this case, working co-operatively to facilitate the earliest resolution and to avoid the case proceeding to Trial.

"This approach is borne out by the timeline and facts of the case.

"Proceedings were served on 23 May 2018.

The first case management application was heard before Mr Justice Cross on 30 May.

The SCA offered mediation on 1 June.

The SCA did not commission liability, condition and prognosis or quantum reports as it would typically be required to do in medical negligence cases. The SCA requested the reports directly from the Plaintiff’s solicitors so as to facilitate a resolution at the earliest possible time and to remove the more adversarial elements of the Tort system.

Settlement was reached on 28 June."