State ‘can now settle cervical cases – and chase labs for money’

THE Government can pay damages to women dying from cervical cancer and then pursue the American laboratories that misread their smear tests for this money, it has been claimed.

And according to solicitor Cian O’Carroll, a landmark ruling by the Supreme Court in the case of Ruth Morrissey this week means seriously ill women would then be spared the trauma of having to lodge High Court legal claims in order to secure compensation.

The Tipperary solicitor, who has represented many of the women at the centre of the scandal, explained: ‘The State could set up a nonadversarial assessment tribunal. It has been found that the HSE has primary liability. The State could settle – if they are looking at a case, they have access to the slides and if they see that the abnormality is evident and with the rules of the [Ruth] Morrissey judgment… they could settle.

He said: ‘The contracts with the labs give the State indemnity and the State can recover costs from the laboratories.

‘The majority of the 221 women [whose smear tests were misread], nearly all of them were a breach of duty, so the State could settle with them and then settle with the labs.

‘Now they don’t have an excuse to hide behind any more.’

It has now been confirmed that due to the coronavirus crisis the establishment of a tribunal is postponed. It was deemed that the women involved may be at risk of serious illness if they were to contract the virus. As soon as medical advice deems it safe, the minister will establish the tribunal.

When details of the misreading scandal first emerged in April 2018, Taoiseach Leo Varadkar pledged that women would not be forced to go to court in order to secure compensation.

Instead, the Fine Gael leader said the State would settle with these women through mediation and then pursue the laboratories for the repayment of this money.

However, months later the Taoiseach said the State could not pay damages unless it had evidence of negligence.

Last week, the Supreme Court ruled that lab staff screening smear tests should have ‘absolute confidence’ that the test sample had no abnormality before giving the all-clear.

Delivering this landmark judgement Chief Justice Frank Clarke said: ‘I consider that the use of the term “absolute confidence” may have created more confusion than clarity. However, it is clear that all of the relevant witnesses agreed a screener should not give a clear result in respect of a slide unless they had no doubt but that the sample was adequate and did not contain any suspicious material.’

The Supreme Court made its landmark ruling after the HSE and two US laboratories appealed a High Court decision in a case taken by Ruth Morrissey, 38, who was diagnosed with cervical cancer in 2014 after her cancer was missed in smear tests taken in 2009 and 2012.