The Supreme Court has reserved judgment on an important appeal expected to clarify the legal standard of care for cervical cancer screening.
The five-judge court’s decision in the case of Limerick woman Ruth Morrissey, who is terminally ill with cancer, will impact on other cervical cancer cases and the work of the Cervical Check tribunal.
At the close of the three-day appeal on Wednesday, Chief Justice Frank Clarke said this was a “very difficult” case, both because of its underlying and tragic conditions and the legal issues which have very wide implications.
The court will try and give judgment as quickly as possible and in a way that “brings clarity” to this area.
The final day of the appeal was attended by some Cervical Check campaigners, including Vicky Phelan.
The HSE and two Irish-based laboratories – Quest Diagnostics Ireland Ltd and Medlab Pathology Ltd – have appealed a July 2019 judgment by the High Court’s Mr Justice Kevin Cross, awarding €2.1m to Ms Morrissey and her husband Paul over misreading of Ms Morrissey’s cervical smear slides.
The Government has guaranteed, irrespective of the outcome, the couple will retain the entire damages, some €2m of which is against the labs, plus their legal costs. Ms Morrissey was diagnosed with cervical cancer in 2014 and her case concerned smears taken under the CervicalCheck screening programme in 2009 and 2012.
She was not told until May 2018 that a 2014 review showed two smears were reported incorrectly.
The core issues in the appeal include what standard of care should apply in cytoscreening and whether the HSE has liability for acts and omissions of cytoscreeners.
‘Absolute confidence’
The appellants’ particular concern is the High Court finding screeners should have “absolute confidence” that a sample is adequate and there is no abnormality before reporting it as negative.
In arguments for the Morrisseys, Jeremy Maher SC said this case was a “human tragedy”, which arose entirely out of the fault of all three defendants.
An “abundance of evidence” entitled the High Court to conclude Ms Morrissey’s cancer was caused by negligence of the laboratory defendants, he said.
A pre-cancer specialist gave “clear evidence” that pre-cancer was present in 2009 and 2012 and was allowed, through the fault of the laboratories, to develop undetected, he said.
Were it not for that negligence, Ms Morrissey would not be facing death in early 2020 or possibly 2021, he said. She had suffered a recurrence of cancer, surgery is not now possible and her treatment is now “effectively palliative”.
Patrick Treacy SC, also for the couple, urged the court to find that a cytoscreener’s practical duty is to have “absolute confidence” that a slide is normal before reporting it as negative.
Absolute confidence is “absolutely essential” in this “fundamental issue of women’s health”, he said. “We are dealing with people’s lives here, there is no room for mediocrity.”
Michael Cush SC, replying for Quest, said the law cannot use words which suggest “absolute confidence” and any such legal requirement, particularly for screeners, is “contrary to logic and common sense”.
Because a competent screener will know that some women who go on to develop cancer could have been screened as negative, how could any screener say they have “absolute confidence” in their screening result, he asked.
Patrick Hanratty SC, for the HSE, said the incidence of cervical cancer was increasing here before the Cervical Check programme but has fallen by seven per cent year on year since.
The High Court judgment can be interpreted as setting a new absolute confidence test concerning cytology screening and other areas of medicine, he said. An absolute confidence test was “unnecessary” and “capable of causing confusion”.
Conor Halpin SC, in reply for Medlab, stressed it is an Irish company incorporated here and employing screeners who got their qualifications here and it “does not matter that it is part of a US multinational”.
Evidence that there was 35,000 cells on the 2012 slide tested by Medlab had not been challenged and the High Court erred in saying Medlab should have found that slide was inadequate for screening, he argued.
