Counsel tells court his client wishes to avoid 'death bed litigation' in cervical smear claim

By Ann O'Loughlin

A High Court judge yesterday invited the parties in the case of a mother with cancer suing over CervicalCheck smears to sit down at the mediation table.

Mr Justice Kevin Cross issued the invitation in the case of the woman who has breast and cervical cancer and who the court previously heard may only have months to live.

It followed an application from the US laboratory Quest Diagnostics which was involved in the analysis of the cervical smears of Irish women that the case which is set for hearing in the High Court next week be put back until October as it emerged the woman may be able to have curative treatment and she may have a more optimistic prognosis.

The woman's counsel Jeremy Maher SC told the court she wanted her case to go ahead next week and she did not want a "death bed litigation."

She had travelled to the High Court with her husband as the issue was so important to her, Counsel said.

"It is about access to justice for this woman through the courts and to make proper provision for her for the rest of her life," Counsel said.

He added that there was no benefit for the woman after her death to find the court had found in her favour.

"It is about the entitlement of the citizen and the terrible situation she finds herself in to have access to justice," Counsel said.

The woman cannot be named or identified in any way by order of the court. She has sued the HSE, and laboratories Quest Diagnostics and Med Lab in relation to cervical smears taken in 2009 and 2012.

Counsel for Quest Diagnostics Emily Egan SC today told the court liability was seriously in issue in the case. Referring to medical reports she said that one had offered a guarded prognosis and the other based on an examination of the woman's case had indicated she was at the stage of receiving palliative care and the prognosis was months.

Last week she said another specialist was brought up to date on the woman's condition and it now appeared the woman was to undergo curative treatment.

Counsel said in three months it will be possible to have a more informed view and in relation to life expectancy.

Ms Egan said there was a real risk of prejudice if Quest Diagnostics was pressurised in to dealing with the case next Wednesday when it is set down for hearing.

The prognosis she said for the woman is now far better and the urgency of the case has alleviated.

Jeremy Maher SC said the woman did not want a "a death bed litigation" which he said was proposed by the other side if it was adjourned until October.

The woman he said had Just finished her sixth cycle of chemotherapy and and she will find out if she can go on for radiotherapy. He said she has breast cancer and cervical cancer and her life expectancy remains limited and that has not changed.

He handed in a report from the woman's GP advising against any interference with the court hearing date as it could impact on the woman's physical and mental well being

Mr Maher said his side had offered three dates in July to sit down at mediation talks.

Mr Justice Kevin Cross said he thought it would be "grossly unfair" to adjourn the case on the basis of of an application that because the woman's health had significantly improved.

He also noted she was entitled to the vindication of her rights from the courts when she is in as good health as possible.

The judge invited the parties to mediate the case on Monday next. If the case is not resolved, the judge said Quest can renew its application when the case goes to hearing next week.

Another case involving the same issues in the Vicky Phelan case around alleged misinterpretation of a cervical smear test has been put back to the new law term in October after new allegations were made on the woman’s behalf against the HSE.

The woman who cannot be identified had a smear test in 2012 and had a hysterectomy a year later. She is claiming she was in a category of high risk of recurrance of cancer and as such should have been monitored more closely.

She has alleged she did not have the appropriate follow up with scans and blood tests for somebody in her category. She had a recurrance of cancer which was diagnosed in 2017 and her legal team told the court she has 18 to 24 months to live.

The new claims are against named medical practitioners and the HSE, the High Court heard.