Dy­ing women’s emer­gency court date

Judge agrees to early trial date in case against two labs and the HSE

Irish Daily Mail - - News - By Paul Caf­frey

TWO women with cer­vi­cal can­cer who may only have months left to live have launched emer­gency High Court ac­tions over al­leged smear test blun­ders that could lead to multi-mil­lion euro pay­outs.

Both claimants, one of whom is in her mid-30s, have young fam­i­lies and are be­lieved to be in a sim­i­lar po­si­tion to 43year-old mother-of-two Vicky Phe­lan, who re­cently set­tled her case for €2.5mil­lion.

The State Claims Agency said last night that it will aim to re­solve these cases through me­di­a­tion ‘in a sen­si­tive man­ner as a mat­ter of ur­gency and with­out the re­quire­ment for a court hear­ing’. The women are su­ing for com­pen­sa­tion over al­leged de­lays re­lat­ing to the con­tro­ver­sial Cer­vi­calCheck smears. They are su­ing the HSE and lab­o­ra­to­ries that car­ried out the orig­i­nal tests.

Their cases are ‘very ur­gent’ be­cause one of them has been given a life ex­pectancy ‘lim­ited to months’, while the other claimant may have up to a year to live, ac­cord­ing to ex­pert opin­ions, the court heard yes­ter­day. They both say they only dis­cov­ered in re­cent weeks – in one case as re­cently as May 3 – that their smear tests may not have been car­ried out cor­rectly.

They lodged their court ac­tions this week and their solic­i­tor Cian O’Car­roll went be­fore a judge yes­ter­day to seek trial dates as soon as pos­si­ble. There would be a real con­cern if their cases were not heard be­tween now and the end of July, bar­ris­ter Jeremy Ma­her SC ar­gued. The HSE did not ob­ject to the re­quests.

Mr Jus­tice Kevin Cross, head of the High Court’s per­sonal in­jury divi­sion, set July trial dates in both cases due to their clear ur­gency. After­wards, a source close to the two women said the court de­ci­sion to fast-track their cases lifts ‘some bit of bur­den’ from their shoul­ders.

Although they are among 209 women whose test re­sults were mis­read, a source close to the two women told the Ir­ish Daily Mail: ‘Their prog­no­sis is very poor and has been lim­ited by a de­layed di­ag­no­sis of can­cer, mak­ing their cases very ur­gent.

‘It is def­i­nitely a help to get early trial dates. Peo­ple worry ter­ri­bly about the fu­ture for their chil­dren or spouse. We all worry about fi­nances for those we are leav­ing be­hind if we are suf­fer­ing from ter­ri­ble ill­ness.

‘There is some bit of bur­den lifted if they know this can be re­solved soon.’

Life ex­pectancy ‘lim­ited to months’

The State Claims Agency said it was no­ti­fied of the cases ear­lier this week.

It said: ‘To­day’s court ap­pli­ca­tions were re­quested by the solic­i­tor rep­re­sent­ing the peo­ple mak­ing the claims to sched­ule a date for the court to hear each case.

‘The HSE is a named co-de­fen­dant in these cases along­side two lab­o­ra­to­ries. The State Claims Agency is man­ag­ing these claims on be­half of the HSE in ac­cor­dance with its statu­tory role. The SCA is not act­ing on be­half of the co-de­fen­dant lab­o­ra­to­ries, which have sep­a­rate le­gal rep­re­sen­ta­tion.

‘The SCA agreed to the judge’s time­lines and will now en­gage with the code­fen­dant lab­o­ra­to­ries with the aim of re­solv­ing these cases in a sen­si­tive man­ner as a mat­ter of ur­gency and with­out the re­quire­ment for a court hear­ing.

This is in ac­cor­dance with the SCA’s pre­ferred ap­proach for deal­ing with such cases and the judge’s rec­om­men­da­tion, in mak­ing the or­ders in the in­di­vid­ual cases, that the cases be re­solved through me­di­a­tion. ‘In car­ry­ing out its statu­tory role in man­ag­ing these cases, the SCA is com­mit­ted to plac­ing a high pri­or­ity on treat­ing the peo­ple who have made the claims, and their fam­i­lies, with dig­nity and com­pas­sion.’

A July date was also set for the hear­ing of a mar­ried woman who says her ovar­ian can­cer di­ag­nosed last year was missed even though she had been go­ing for checks since 2010.

The tri­als will start on dif­fer­ent dates in July, start­ing on July 12.

How­ever, the judge urged all par­ties in all three cases to at­tempt to re­solve the cases out of court in the mean­time.

None of the women in­volved in the new cases can be named or iden­ti­fied by court or­der.

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