Courts

Mediation talks begin in case of woman with ‘a matter of days’ to live who claims cervical smear slides misreported

Lawyers for woman (59) tell court she has only ‘a matter of days’ until she dies

Counsel has sought assurance that the woman’s access to general damages, if she goes on to win her action, would be preserved after her death.

Fri Jun 9 2023 - 16:49

Mediation talks have begun in the case of a dying woman who has sued alleging her cervical smear slides were misreported, the High Court has heard.

Mr Justice Paul Coffey exhorted the parties, which includes the Health Service Executive (HSE) and laboratories, to bring the talks to a successful conclusion.

Lawyers for the 59-year-old woman, who has cervical cancer, went to court on Thursday to appeal to the HSE to settle the case as the woman had “a matter of days” until she dies.

Her senior counsel, Patrick Treacy, instructed by Cian O’Carroll Solicitors, told the court the woman is under hospice care and her situation is “so serious she cannot herself consult with her solicitor”.

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Counsel said he was asking the HSE to enter into mediation to resolve the action or to give an assurance that the woman’s access to general damages, if she goes on to win her action, would be preserved after her death. The woman’s case is due for trial in the High Court in July. All the claims made in the action are denied.

Generally, under section 7(2) of the Civil Liability Act of 1961, a claim for general damages for pain and suffering is not maintained after the death of the person allegedly caused to suffer.

The woman, who cannot be identified due to a court order, has sued the HSE along with laboratory Eurofins Biomnis Ireland Limited, of Sandyford Industrial Estate, Foxrock, Dublin. The US laboratory CPL, based in Austin, Texas, which examined the woman’s August 2010 cervical smear slide, was added to the proceedings as a third party last month.

When the case came back before the High Court on Friday, Mr Treacy said his side needed to know if the HSE and the laboratory Biomnis Ireland were going to preserve the entitlement of the woman and her family to general damages if she dies before her action concludes and she wins.

He said his understanding was the HSE was not prepared to preserve this. Counsel for Biomnis Ireland, Ray Motherway, said the laboratory will not be agreeing to preserve this ability to maintain a claim for general damages after death.

At issue in the case are two cervical smear slides taken under the CervicalCheck national screening programme in February 2010 and August 2010.

She has claimed that had smear samples taken in February 2010 or August 2010 been correctly reported she would have been treated by curative surgery and would not have developed invasive cervical cancer.

Instead, she says, she underwent treatment with chemotherapy, radiotherapy and brachytherapy and in October 2022 she was diagnosed as having widespread metastatic disease.

It is claimed that because of the alleged delay in diagnosis, the woman lost the opportunity of a cure and her life expectancy was severely impaired and limited to months rather than years.

All the claims are denied.

Mr Justice Coffey said he was gratified to learn that mediation is taking place but he gave liberty to the woman’s legal team to come back to court if anything pressing arises before the case is due to be mentioned in the High Court on Tuesday.

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