A partial appeal by the State Claims Agency (SCA) of a High Court judgment that found in favour of a woman terminally ill with cervical cancer will not include an appeal of the €2.16m in damages awarded to her.
The SCA confirmed yesterday that the appeal it will lodge today on behalf of the HSE will relate to aspects of the judgment dealing with “primary and vicarious liability and absolute confidence”.
The appeal relates to the landmark case taken by Limerick woman Ruth Morrissey and her husband Paul who sued the HSE and two US laboratories for failures when reading her smear tests.
Yesterday, Health Minister Simon Harris told RTÉ’s The Week in Politics that the wider implications of the ruling were what had prompted the appeal to the Supreme Court.
One issue relates to the threshold of “absolute confidence”. In his ruling, Judge Kevin Cross said that screeners — those who read the smear test slides — should have “absolute confidence” that there are no abnormalities before giving the all-clear.
Medical representative bodies raised concerns that this raises the bar too high for screeners. They have also expressed concern the threshold could equally be applied in diagnostics. They claim this threshold could make screening programmes unviable.
The other issue relates to liability. While the HSE was not found negligent for the failure to correctly report Ms Morrissey’s smears in 2009 and 2012, it was found to have a liability.
The Judge said the HSE, no less than the two laboratories, Quest Diagnostics and MedLab Pathology Ltd, had a liability to Ms Morrissey as the organisers and being responsible for the cervical smear tests.
This has raised concerns that in future, cases taken by women whose smears were incorrectly read, will only have to sue the state and not the laboratories. The SCA has received close to 100 claims alleging misdiagnosis of tests. The two laboratories have already said they will appeal the judgment.
Under fire from political opponents who were critical of the ongoing controversies dogging CervicalCheck, Mr Harris said progress was being made. He said he will bring proposed legislation to Cabinet tomorrow that will pave the way for the establishment of an independent statutory tribunal to deal with claims arising from the CervicalCheck scandal. He hoped to have legislation passed by summer’s recess.
It also emerged yesterday that the slides of some women that were due for inclusion in an independent review have not been located.
In response to a report in the Sunday Times outlining how the slides of 30 women who developed cervical cancer were missing, and therefore, not included in a review by the Royal College of Obstetricians and Gynaecologists (RCOG), the HSE said it has not been possible to include 65 slides.
They relate to: 10 women who have a total of 29 slides, which have been sent for external independent review at the request of the individuals concerned, or solicitors acting on their behalf; and 30 women, and the next of kin of one woman, who have a total of 36 slides that could not be retrieved by laboratories in time to meet the June 7 closing date” [for inclusion in the review].
The HSE said: “While over 96% of the 1,700 requested slides across a 10-year period have been transferred, it has unfortunately not been possible to include 65 slides. As a result, those women, whose slides are still being sought by the lab, will now receive a partial report (if they have other slides included in the review) or no report (if the unavailable slide was the only one in the review).
They said the labs would “continue to search for slides not yet located”.