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On the 19th March 2020, the Supreme Court unanimously dismissed appeals by the HSE and two laboratories against a High Court decision concerning the standard of care to be adopted by cervical cancer screeners.
Ruth Morrissey had smears taken as part of the CervicalCheck programme in 2009 and 2012 which were incorrectly reported. A review was carried out in 2014 which confirmed the incorrect reporting, however Mrs Morrissey was not informed of the results of the review until 2018. Mrs Morrissey’s cancer returned in 2018 and she now faces a terminal diagnosis.
Mr Justice Cross in the High Court awarded Mrs Morrissey approximately €2.1 million and found that individual screeners must have “absolute confidence” before confirming a sample was clear. This decision was appealed by the HSE, together with the two laboratories – Quest Diagnostics Ireland Ltd and Medlab Pathology Ltd.
Irrespective of the outcome of the appeal, the State had guaranteed that Mrs Morrissey and her husband would be given the entire award of €2.1 million granted by the High Court, plus their legal costs.
On appeal, the Supreme Court agreed with the decision of the High Court and determined that screeners should not indicate that a sample was clear “unless they had no doubt but that the sample was adequate and did not contain any suspicious material”.
The Chief Justice, Mr Justice Frank Clarke, was the author of the court’s judgment. He noted in the judgment that there could be genuine differences of opinion between competent professionals reading the same slide, even applying a test of “no doubt”. He said that cases such as this must be applied on a case-by-case basis and the most professional screening carried out to the highest standards may still lead to different results. However, all witnesses agreed that if there was any doubt about whether the contents of a slide was normal, it must not be allowed to be reported as clear.
The Court overturned a High Court finding that the HSE were vicariously liable for the negligent acts of the two laboratories. However, they found that the HSE did have a non-delegable duty of care towards patients availing of CervicalCheck and on that basis, found it remained liable towards Mrs Morrissey.
The Court allowed Medlab’s appeal over damages awarded to Paul Morrissey, Ruth Morrissey’s husband, to account for services which would have been provided to the family by Mrs Morrissey were it not for her shortened life expectancy. The Court found that the law in this area was “potentially anomalous” and that ultimately it is a matter for the Oireachtas.
This judgment brings clarity to the area and it is hoped that it would assist in expediting the cases outstanding in the courts brought by plaintiffs who were affected by the screening errors associated with the CervicalCheck programme.
About the Author: Mark Jones, Solicitor on the Medical Negligence Team.