Vicky Phelan case paved the way for CervicalCheck test action

Vicky Phelan’s legal action paved the way for a test case by another terminally ill woman, Ruth Morrissey, which decided key liability and other issues arising from the CervicalCheck controversy – and ultimately led to further cases taken by other women.

Up to late August, almost 370 cases were brought to the High Court relating to smears taken under the national CervicalCheck screening programme, of which more than 130 have concluded.

More than 70 of the cases are claims for psychological injuries by family members of women whose smear tests were allegedly misread under the programme. A significantly smaller number of claims, concerning just 25 women, went to the CervicalCheck tribunal, established to deal with claims without recourse of litigation.

The test action by Ruth Morrissey, who died in July 2020 aged 39, and her husband Paul arose from the disclosure in Ms Phelan’s case, for the first time, of the existence of an audit of smears taken under the programme.

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Ms Phelan’s case was settled against a US laboratory, Clinical Pathology Laboratories Inc, Texas, without admission of liability, for €2.5 million damages in April 2018. Her claim against the HSE was struck out.

According to her solicitor, Cian O’Carroll, her case “blew the lid off the CervicalCheck scandal” and led to “very important” decisions in the cases of Ruth and Paul Morrissey.

Following Ms Phelan’s case, Ms Morrissey learned that a review carried out in 2014, which she was not told of until 2018, showed two of her smears taken under the CervicalCheck programme in 2009 and 2012 had been incorrectly reported.

Her cancer, first diagnosed in 2004, returned in 2018 and she was given a terminal diagnosis.

The Morrisseys took proceedings against two laboratories – Quest Diagnostics Incorporated and Medlab Pathology Ltd – and the HSE over misreading of her cervical smear tests.

In July 2019, the High Court awarded the couple a total of €2.16 million against all three defendants and an additional sum of €10,000 in nominal damages against the HSE, in respect of its failure to notify her of the results of the audits of her earlier smear tests.

The High Court decision in favour of the couple was appealed to the Supreme Court.

In relation to the legal standard of care for cervical cancer screening, the Supreme Court agreed with the High Court that a screener should not give a clear result in respect of a slide “unless they had no doubt but that the sample was adequate and did not contain any suspicious material”.

The Supreme Court also found the High Court was incorrect in finding the HSE was vicariously liable for the negligent acts of laboratories in Ms Morrissey’s case but went on to rule that the HSE had a duty, which could not be delegated and which the court described as a “potentially developing area of primary liability”, in respect of patients availing of its CervicalCheck programme.

The court allowed Medlab’s appeal over €575,000 damages awarded to Paul Morrissey to account for services which would have been provided to the family by Ms Morrissey were it not for her shortened life expectancy. The law in this area “may be potentially anomalous” but that was a matter for the Oireachtas, it said.

However, the Morrisseys received the full €2.16 million award made by the High Court because the government had guaranteed that.

Asked on Monday about Ms Phelan’s legacy, Mr O’Carroll said: “Vicky Phelan was beautiful, brave, tenacious and an inspiration to everyone around her and hopefully she will remain an inspiration for a long time to come. She showed that when you stand up for truth and honesty, with courage, you can achieve a hell of a lot.”

Because she continued to strongly advocate for cervical screening, she has “saved so many lives”, he added.

She had always referred to the CervicalCheck controversy as a “debacle” rather than a “scandal”, he said.

As a result of the cancellation in early 2018 of further audits, Mr O’Carroll said he estimated that up to 1,500 women have not had their smear tests audited including a number of women with a prior history of cervical cancer screening. That contrasted with the pledges of open disclosure and protecting women, he said.