Courts

Widower settles action against HSE over alleged misdiagnosis of wife’s smear slide

Liability was contested in the case and the HSE denied the claims made against it

Pctured outside the Four Courts after the settlement hearing were David Flannery, whose wife Elaine died in 2014, with, from left, family members Brian, Eamonn, Sarah with her sons Liam and Kai, David and Mick. Photograph: Collins
Pctured outside the Four Courts after the settlement hearing were David Flannery, whose wife Elaine died in 2014, with, from left, family members Brian, Eamonn, Sarah with her sons Liam and Kai, David and Mick. Photograph: Collins
Tue Oct 25 2022 - 15:03

The widower of a woman who died of cervical cancer has settled a High Court action over the alleged misdiagnosis of her smear slide.

Mother of five and microbiologist Elaine Flannery from Blarney was 59 years of age when she died from metastatic cervical cancer in October 2014.

Her husband David Flannery, who had sued the HSE, settled his action for €675,000 and the High Court was told the settlement is without an admission of liability.

Liability was heavily contested in the case and the HSE denied the claims made against it.

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At issue in the action was a smear slide from Mrs Flannery taken in November 2010 under the CervicalCheck programme. Mrs Flannery was diagnosed with invasive cervical cancer in 2012 and died two years later.

Her son, singer-songwriter Mick Flannery, was in court with his four siblings and father as the court was told of the settlement and how the family are distressed that there was no apology from the HSE.

The Flannery family counsel Patrick Treacy SC, instructed by Cian O’Carroll solicitors, told the High Court the case had been settled after mediation. The case was before the court for the ruling of the statutory €35,000 solatium mental distress payment.

Counsel said the settlement was without admission of liability.

He told the court that experts on their side would contend that on examination of Mrs Flannery’s smear slide they found cells that one expert described as high-grade. Counsel said it was their case that if Mrs Flannery had been referred for investigation and treatment in 2010, the cancer which was diagnosed two years later would have been prevented.

Counsel pointed out that a report on behalf of the US laboratory involved reported back that the slide was negative, and liability was at issue in the case.

Mr Treacy said it was a source of great distress for the Flannery family that there was no apology in the case.

In his action, David Flannery of Blarney, Co Cork, had claimed that on November 11th, 2014, Mrs Flannery had a cervical smear test under the CervicalCheck national screening programme.

It was claimed that the cytology report from a US laboratory indicated the smear sample was satisfactory for assessment and there was no evidence or neoplasia or abnormality.

Two years later, in October 2012, Mrs Flannery was diagnosed as having invasive cervical cancer. She underwent chemotherapy, radiotherapy and brachytherapy, but died on October 26, 2014.

It was claimed that there was an alleged failure to correctly report or to diagnose and Mrs Flannery’s November 2010 smear sample was allegedly misinterpreted, and her cancer was allegedly allowed to develop and spread unidentified, unmonitored and untreated, until she was diagnosed with cervical cancer in October 2012.

Had Mrs Flannery’s disease been detected in 2010, it was further claimed, she would have been treated by either radical surgery or chemoradiotherapy with curative content.

There was, it was contended, an alleged failure to advise, treat or care for Mrs Flannery in a proper, skillful, diligent and careful manner, and an alleged failure to use reasonable skill, care and judgement when reviewing her smear sample taken on November 11th, 2010.

Mrs Flannery, it was claimed, was deprived of the opportunity of timely and effective investigation and management of her condition and allegedly deprived of the opportunity of treatment at a time when her disease was amenable to curative treatment.

There was it was claimed an alleged failure to ensure the provision of a proper, efficient and competent cervical cancer screening service and an alleged failure to ensure that those providing the service possessed or exercised the necessary skill, experience, training or expertise to effectively report on cervical cytology and to detect the presence of changes in the cervix cells such as to ensure the early detection, prevention and treatment of cervical cancer in women including Mrs Flannery

All the claims were denied.

Noting the settlement, Mr Justice Paul Coffey said it was a sad and tragic case and he extended his deepest sympathy to Mr Flannery and his family on their loss.

David Flannery, whose wife Elaine died in 2014, listens as his son, Eamonn reads a statement to media outside the Four Courts, Dublin. Photograph: Collins Courts
David Flannery, whose wife Elaine died in 2014, listens as his son, Eamonn reads a statement to media outside the Four Courts, Dublin. Photograph: Collins Courts

Outside the court, in a statement read out by his son Eamonn, Mr Flannery said: “Wednesday is eight years to the day since our beloved Elaine was taken from us. She had been bravely battling cancer for the best part of two years when she died 17 days after her 59th birthday.”

He said the legal proceedings marked the end of a mediation process where there is a measure of financial compensation granted to the family but no apology.

Mr Flannery said they had sought a “no-strings attached” apology.

“Just a simple form of sorry for our enormous loss and for the heart-breaking pain caused would have sufficed,” he added.