A US laboratory contracted to carry out cancer screening for the HSE’s CervicalCheck programme specifically indemnified the State against errors involving false negative smear tests, the contract shows.
The contract between the HSE's national cancer screening programme and Quest Diagnostics, the New Jersey-based laboratory and one of three that carries out testing for CervicalCheck, also compels the lab to take out insurance cover of at least €22.6 million for each potential legal claim over the testing.
Quest is one of three labs to carry out testing for the programme. The other two are US-owned MedLab Pathology in Sandyford, Dublin and the Coombe Women & Infants Hospital, also in Dublin.
The Quest contract, signed in 2008 and 2012, indemnifies the screening programme against all claims, costs, actions and proceedings.
Insurance risk
The insurance risk covered by the lab under the contractual terms of the agreement includes at least €12.7 million for employer’s liability insurance, €6.4 million for public liability insurance and professional indemnity insurance of not less than €3.5 million.
Quest is being sued by a number of women affected by the CervicalCheck scandal over claims that the testing missed their cancers.
The controversy came to light after Limerick woman Vicky Phelan, who also has cervical cancer, settled a High Court case for €2.5 million against another US lab, Clinical Pathology Laboratories, a sister lab of Medlab, in April.
Ms Phelan sued when she discovered last year that a 2014 audit, carried out after she was diagnosed with cancer, revealed an incorrect smear test result in 2011 missing early signs of her cancer. Since the settlement, the number of women or families affected has risen to 209, including 18 women who have died, with the potential to increase further as a further 46 cases are being audited.
Dr Gabriel Scally, the Northern Ireland public healthcare veteran carrying out the Government's scoping inquiry into the scandal, said last week that he had encountered delays in obtaining information from the HSE, including the contracts with the US labs carrying out the testing. The contract between the HSE and Quest were, however, provided by the State Claims Agency to Oireachtas finance committee last month in response to a request from the committee after a hearing.
Surprise
Fianna Fáil TD Michael McGrath, a member of the Oireachtas committee, expressed his surprise at the delay in the contract being provided to Dr Scally, whose terms of reference includes looking at the contracting of cytology laboratory services by CervicalCheck.
The contracts, said Mr McGrath, appeared to show the Taoiseach should be able to fulfil the Government’s pledge to settle with the affected women and sue the US laboratories on their behalf so as to avoid the sick women having to endure the stress of a court case over their claims. “The clauses around indemnification seem to be really strong on the side of the State and the onus now is on the Government to fulfil the promise made to women and their families, and not to abandon them to have to take on protracted legal battles against the US labs,” he said.
