WHY IS THE STATE STILL FIGHTING EMMA IN COURT?
Case in High Court yesterday as her barrister says liability disputed in two other claims
LEO Varadkar’s pledge to support the women most damaged in the smear-test scandal came under intense scrutiny yesterday.
However, Emma Mhic Mhathúna’s barrister told the High Court yesterday that the State is still The Taoiseach had promised that the women and families involved in ten outstanding cases would see their claims solved by mediation.
fighting liability in her case. The State is contesting the case by the Kerry mother of five, who is dying from cervical cancer. And her counsel, Patrick Treacy SC, told the court it is fighting all three cervical cancer cases coming before the court.
He pleaded with the judge to speed up the claims, as the women do not have much time.
‘In these particular cases, we don’t have a huge amount of time, by reason of how seriously ill the female plaintiffs are,’ he said.
Yet, for the State, liability for Ms Mhic Mhathúna’s cancer ‘is to the fore’, he said.
The 37-year-old has claimed in her action that her cancer was allowed to develop and spread ‘unidentified, unmonitored and untreated’ until she was diagnosed with cervical cancer in September 2016.
Yesterday’s hearing comes less than two weeks after the Government announced measures to help the women affected by the CervicalCheck scandal and promised they would not have to fight their cases in court.
On May 12, the Taoiseach and Health Minister Simon Harris held a press conference to launch the package for the affected women.
Mr Harris said Ms Mhic Mhathúna and Vicky Phelan – another victim of the scandal – had done the State ‘a service’, but that it was something they should never have had to do. He said no words could ease their anguish and that of their families.
Mr Varadkar said the health service and cancer screening should be about saving lives, not saving face. He also said the Cabinet had agreed a mediation process to ensure the women and their families involved in ten outstanding cases would be settled without going to court.
Yet Ms Mhic Mhathúna’s barrister was before the High Court yesterday, explaining that the State is still fighting, and that he hopes the case can be resolved soon because his client is dying. He said the State may only make ‘a limited concession’ about delays in notifying Ms Mhathúna about the outcome of reviews of her smear tests.
She is one of the 209 women who were told by the HSE that their smear tests were read incorrectly.
She and her children took a case
‘None of these cases should go to trial’
against the HSE, Quest Diagnostics Incorporated, and the National Maternity Hospital. Mr Treacy said liability was also contested in the cases of two other women who launched cases last week over allegedly misread smear tests.
Earlier this month, following the settlement of Vicky Phelan’s legal action over her misdiagnosis, State Claims Agency director Ciarán Breen told the Oireachtas Finance Committee that none of these types of cases should come before the courts. However, he said his agency was powerless to prevent that from happening when the liability ultimately rests with the laboratories.
He said the agency had ‘taken very seriously’ remarks by the Taoiseach that none of these outstanding cases should be contested.
‘We will do everything we possibly can to ensure that other families who are involved in these ten cases won’t suffer the same trauma. None of these cases should go to trial, that’s the way I see it,’ he said.
Ms Mhic Mhathúna is seeking compensation over the alleged misreading of her smear test in 2013. Her lawyers have demanded that smear test samples dating back to 2010, and perhaps 2009, be handed over soon, as they build their case.
The HSE and the laboratories have said they recognise the urgency of the situation and have promised to hand over all the screening slides as soon as possible.
Yesterday, Mr Treacy told the court that while there was no lack of goodwill in getting his client’s cervical slides, there was a new solicitor on the other side to negotiate ‘a protocol’ to hand them over, while ensuring their integrity was protected.
He said this protocol had ‘proved to be unworkable’, meaning that a week had been lost and that Ms Mhic
Mhathúna’s solicitor, Cian O’Carroll, was frustrated at the slow progress, and had indicated that he would be returning to court.
Judge Michael McGrath said the defendants appeared willing to cooperate, but in the circumstances he would list the matter for mention again today to see what progress is made.
Mr O’Carroll confirmed to the Irish Daily Mail that there has been no admission of liability from any party in Ms Mhic Mhathúna’s case.
A spokesman from the State Claims Agency said it had agreed to the judge’s timelines and will now engage with the co-defendant 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.