US laboratory Quest Diagnostics today confirmed before the High Court it is to appeal the landmark judgement in the case of terminally ill Ruth Morrissey who last week was awarded €2.1m.
Quest Diagnostics is to appeal the decision to the Supreme Court and is to seek an expedited 'leapfrog' appeal hearing directly to the highest court in the land.
Mr Justice Kevin Cross granted a stay on his final judgement providing €700,000 is paid to 37-year-old Ruth Morrissey immediately.
Ruth Morrissey and her husband Paul who sued over her CervicalCheck smear tests were last week awarded a total of €2.1m by the High Court as she won her long-running action.
Mr Justice Kevin Cross said Ruth Morrissey’s life had been ruined and she has suffered a life sentence which she is fully aware is expected to take effect within two years and for which there is no reasonable prospect of a reprieve.
She won her case against the HSE and two US laboratories in relation to the testing of her cervical smear slides in 2009 and 2012 in the landmark action relating to the CervicalCheck controversy.
Mr Justice Cross also ruled last week the HSE is entitled to an indemnity against the laboratories in respect of the entirety of the claim except for a €10,000 award relating to the fact that Ms Morrissey was not informed of an audit review of her smear tests.
In the High Court today, Counsel for Quest Diagnostics asked for a stay in the final orders in the case providing €400,000 is paid to Ruth Morrissey.
Counsel said the issue of “absolute confidence” in relation to testing would be an issue in the appeal to the Supreme Court along with the fact it believed too much weight had been attached to the audit results not being disclosed and the blind review of slides.
Mr Justice Cross in his ruling last week held in the Morrissey case that “absolute confidence” is the screeners practical duty in relation to their analysis of what is in a slide.
In his judgement, Mr Justice Cross said the €10,000 against the HSE was nominal damages and while the HSE had admitted liability in relation to the non-disclosure of the audit results, the wrong done to Ms Morrissesy by the non-disclosure he said was not inconsiderable.
The judge also ruled Ms Morrissey must fail in the allegation of negligence against the HSE in relation to her care after her treatment in 2014.
Finding against US laboratory Quest Diagnostics, Mr Justice Cross said a reasonably competent screener at the relevant time should not have failed to see what was on Ms Morrissey's 2009 slide.
The cells on the slide the judge said as per the evidence of Consultant cytopathologist Dr Michael McKenna had clear peculiarities which showed themselves as being other than normal and this ought to have been seen by a competent screener.
"I believe the American screeners were utilising their professional skill and judgment and recording what they believed as a matter of probability was the case but that they ought not to have treated the slide as negative given the abnormalities as identified by Dr McKenna," the judge said.
Referring to the 2012 smear test by the MedLab laboratory, the judge said that though it contained abnormal and non-negative cells, the nature of these cells was such that the failure to record them as abnormal was not a breach of duty of care.
However, MedlLab was negligent in failing to have the slide properly tested for adequacy.
Had the adequacy test been conducted in accordance with the guidelines required by the HSE and its contract the judge said as a matter probability the slide would have reported as inadequate and Ms Morrissey would have been required to be retested between one and three months later.
Mr Justice Cross said had Ruth Morrissey's slide been properly analysed in 2009 or had the slide in 2012 been deemed inadequate and she had been reviewed within one to three months then as a matter of probability she would have been retested and as a matter of probability her slides would have been abnormal and she would have been sent for a colposcopy and would have been treated using a non-invasive procedure and would never have contracted cancer in 2014.
He said she would have been spared the pain and distress of what followed and in particular her cancer would not have recurred.
"She would not have been subjected to the radium or chemotherapy treatment," the judge stated.
She would not have suffered all her pain and distress that she has undergone so far. She would not have been left in the knowledge she had only at most two years to live.
"She would have been spared the prospect and knowledge that her daughter and her husband will have to go through life without her care and guidance in particular she will not live to see her daughter make her way through life and probably start her own family and of most importance, her life would not have been so tragically cut off."
Ms Morrissey and her husband Paul Morrissey, of Monaleen, Co Limerick had sued the HSE and two US laboratories, Quest Diagnostics Ireland Ltd with offices at Sir John Rogerson’s Quay, Dublin along with Medlab Pathology Ltd with offices at Sandyford Business Park, Dublin 18.
It was claimed there was an alleged failure to correctly report her smear samples taken in 2009 and 2012 and her cancer spread unidentified, unmonitored and untreated until she was diagnosed with cervical cancer in June 2014.
It was further claimed a review of the 2009 and 2012 smears took place in 2014 and 2015 with the results sent to Ms Morrissey’s treating gynaecologist in 2016, but she was not told until May 2018 of those results which showed her smears were reported incorrectly.
The HSE admitted it owed a duty of care to Ms Morrissey. The laboratories denied all claims.
Outside court, Ruth Morrissey's solicitor Cian O'Carroll said the laboratory is entitled to appeal the decision and that is how the law works. He believed the judgement had been misinterpreted by some.
"It is good if the case can be adopted by the Supreme Court so it can be dealt with more quickly and in a very definitive way," he said.
He said a stay is normal in such circumstances and it is important there are terms on the stay so that a significant amount of the award of damages will be released.
"The needs of a plaintiff in this type of situation are immediate and great and it can be provided for in the amount of money that has been ordered to be paid out at this stage," he said.
He said the case was a very important one in its own right and it affects other people.
Referring to comment in relation to the case in the last week since judgement was handed down, Mr O'Carroll said an important element has been "the really remarkable outrageous and hysterical remarks" which have been made and a Supreme Court determination he said will be important to at least quell such "unhelpful threats".
Only today a threat was made to the very existence of screening in Ireland. All that happened in this case is that law that has been established for some twenty years was restated and clarified in the way it applies to an element of one screening programme.
He added: "Cytoscreeners who look at a slide under a microscope, the court has said where they see a potential abnormality they must not pass it as normal.
"If they are going to pass that query on a slide as normal they must be absolutely confident. If not it goes to a doctor who then makes a determination on it.
"That is a reasonable standard that has applied in UK fir last twenty years and I do not see why the entire screening programme in Ireland should be threatened against those who say Irish women are entitled to the same standard as women in the UK."
Mr O'Carroll when asked if the judgement had been misinterpreted, the solicitor replied: "and deliberately so, I think.”