Woman wins permission to sue HSE

The Supreme Court has ruled a woman who underwent a radical hysterectomy when aged 38 due to a mistaken suspicion she had cervical cancer is entitled to sue a GP and the HSE over alleged failure to act on the results of several smear tests carried out on her showing abnormalities over years.

Julia Schuit was entitled to make a case that, if appropriate action was taken on foot of the earlier smear tests, she would have had more conservative treatment much earlier which would probably have resolved her difficulties and the hysterectomy would not have been performed, the court held.

There was “a large and apparently impressive volume of evidence” which seemed to support those claims, Mr Justice Donal O’Donnell said.

He was giving the three judge court’s decision allowing an appeal by Ms Schuit, a mother of two, of Oakfield, Oughterard, Co Galway, against the High Court’s decision striking out her case against her GP, Dr John Winters, and the Western Health Board (now HSE) which maintained the laboratory where the smear test results were sent.

Ms Schuit had sued four defendants in the High Court — consultant obstetrician Dr Michael Mylotte, who performed the hysterectomy in March 1996 at University College Hospital, Galway; a radiographer; Dr Winters and the WHB. All four denied the claims.

About midway through the 14 day case and after hearing evidence from Dr Mylotte but before hearing from expert witnesses for Ms Schuit, Mr Justice Barry White granted applications to strike out the case against all defendants except Dr Mylotte.

The case proceeded against Dr Mylotte only and in 2006 the judge ultimately dismissed the claims against him after finding Ms Schuit had failed to prove no obstetrician of like skill, acting with ordinary care, would have performed the hysterectomy.

The High Court had heard Ms Schuit suffered from gynaecological difficulties over years and was referred by Dr Winters to Dr Mylotte in late 1995 on foot of a smear test showing abnormal cells suspicious of Adenocarcinoma. She also complained to him of post-coital bleeding, a classic symptom of cervical cancer.

Dr Mylotte made inquiries of the WHB and learned other smear tests carried out on Ms Schuit in 1986, 1987, 1991 and 1993, showed abnormalities. In those circumstances, he performed the radical hysterectomy. After the operation, a biopsy was carried out which showed Ms Schuit did not have cancer.

In her claims against Dr Winters and the WHB, Ms Schuit claimed Dr Winters had received reports of the smear tests carried out on her in 1991 and 1993 while the Board maintained the laboratory responsible for all four tests carried out on her. She alleged negligence over alleged failure to act on these.

In his judgment, Mr Justice O’Donnell noted Ms Schuit accepted the High Court’s rejection of her case against Dr Mylotte could not be disturbed on appeal and also did not contest the dismissal of her claim against the radiographer. Her appeal was limited to whether there was evidence that alleged negligence by Dr Winters and the WHB had caused any loss and damage to her.

For the purposes of the Supreme Court appeal, it was accepted, while none of the smear tests up to 1994 showed the presence of cancer, all were abnormal and, given those results, it was proper practice to inform the patient and carry out a colposcopy, a specialised examination of the uterus, he said.

He said Ms Schuit was not informed of the results of any of the tests up to 1994 and no treatment was afforded to her until the 1996 hysterectomy.

While it was undesirable at this stage to say too much about the merits of the case, he believed the High Court erred in dismissing the case against Dr Winters and the WHB before all the evidence was given and all possible contingencies explored.

There was, at a minimum, evidence the smear tests results of 1986 and 1987 did not disclose the name of her GP and were not communicated to Ms Schuit, the judge noted. There was also evidence a smear test report of 1991 which showed abnormalities, and a further report of a test in 1993 requesting a repeat test, both of which were addressed to Dr Winters, were not acted on.