The death, a fortnight ago, of Ruth Morrissey, at the age of 39, created a lot of unrest among the other women whose lives have been affected by the CervicalCheck controversy, according to Lorraine Walsh.
It has “brought a lot of reality” to the situation being faced by the women, said Walsh, who suffers from life-altering conditions brought about by the successful but invasive treatments she received for cervical cancer. She believes she would not have needed these treatments if her CervicalCheck smears, like those of Morrissey, had not been misread. The effects of the treatment include her not being able to have children.
“It just seems to be hanging over you all the time, and the more women that are getting sick, and the more women that are in court, and the more women that are dying, just makes you feel more and more nervous,” she told The Irish Times.
There is a widespread feeling among those affected that the momentum that existed since 2018 in relation to confronting the CervicalCheck controversy disappeared late last year
A significant component of her suffering arises from her belief that “all of this crap that I have to deal with every day, could have been avoided”, she said. “That just turns into bitterness and anger.”
Stephen Teap, whose wife Irene (35) died in 2017 from cervical cancer – she also had smear tests that were misread – spoke to Walsh in the wake of Morrissey's death.
“He said he was so devastated, because he knew what Paul [Ruth Morrissey’s husband] was going through. They both know that their wives would be alive if their smears had been read correctly. That’s hard to let go.”
Walsh was among the original group of 221 women who learned in 2018 that audits of their slides in the period after they had been diagnosed with cervical cancer, showed that the smears had been misread. Instead of being clear, the audits showed that the slides contained material that should have flagged the women's cases as deserving further inquiry. It was only in the wake of the case taken by Vicky Phelan that the women learned of what the audits had found.
That group of women has since been joined by others who were informed late last year that a review of their smear slides differed with the original readings made by the CervicalCheck screening process. In the case of 159 women, the Royal College of Obstetricians and Gynaecologists (Rcog) review decided there had been a missed opportunity to prevent cancer, or diagnose it earlier.
In regard to another 149 woman, the review did not agree with the CervicalCheck findings, but concluded that this did not have an adverse effect on the women’s health outcomes.
As some of the women who took part in last year’s review were also part of the 221 group, the exact number of women involved is not clear. But 51 women have since died, according to Walsh, a significant proportion of the total number affected.
Lack of momentum
At one stage Walsh was a member of the steering committee set up to oversee the implementation of the Government’s response to the CervicalCheck controversy, but she resigned in December 2019 because of unhappiness with how the Rcog review had been conducted.
There is a widespread feeling among the affected women, their partners and their families that the momentum that existed since 2018 in relation to confronting the CervicalCheck controversy disappeared late last year. This too added to the backdrop of “unrest” sparked by Morrissey’s death, said Walsh.
A tribunal that was to provide an alternative to going to court was legislated for last year, but has yet to be established. The courts system itself is in crisis because of the coronavirus restrictions, with few cases being heard, and hardly any cases being settled outside of court.
And the efforts of the Department of Health to reform CervicalCheck, which had already begun to lose momentum, have been hit hard by the diversion, since March, of attention and resources to the Covid pandemic.
“As soon as the State’s apology was given [in October last], that was it. We’ve seen no momentum since,” said Walsh.
Despite having terminal cancer, Phelan has, since the settlement, campaigned in relation to the CervicalCheck programme and the issue of patients' right to disclosure
According to a spokesman for the State Claims Agency (SCA), which handles the cases that are being taken against the HSE arising from the CervicalCheck debacle, there were 203 claims lodged as of July 16th last, of which eight were concluded. This compares with 85 claims, of which five were concluded, as of October of last year.
The statute of limitations rule for personal injury cases is that they must be taken within two years of the person being in a position to have known about the grounds for taking the case.
That time limit is now up for those women who were informed in 2018 that there had been a misreading of their slides.
This is not yet the case for the women who were first informed late last year of a potential problem, arising from the Rcog review. So it is likely that more cases will be lodged over the coming year.
‘Don’t have the time’
A misreading of a slide is not a basis for seeking damages. Damages only arise where the misreading can be shown to have been negligent. The positions of the women taking the cases range from terminal illness to debilitating conditions of varying severities.
“The cases that are coming to court are the women who are terminally ill and don’t have the time to wait,” said Walsh.
Women who die before their cases are concluded lose any entitlement to general damages (approximately €500,000). The women’s families can still pursue other damages arising from the loss of a partner or mother.
“Why are they fighting these women so badly, and making them spend the last few months of their lives fighting for justice for themselves and their children?” Walsh asked.
“We have seen how Ruth and Vicky and [the late Emma Mhic Mhathúna], and lots of others, have really been put through the mill in the High Court, and we are all wondering if we have to go through that torture just to get justice out of this.”
A request for an interview with a representative of the SCA to explore this question was not acceded to, but the matter was explored at length at a sitting of the Joint Committee on Finance, Public Expenditure and Reform, in May 2018, in the wake of the Phelan settlement.
The director of the agency, Ciarán Breen, was questioned during the session about the approach taken by the SCA in the Phelan case, as well as policy generally in relation to such cases.
He explained that another defendant in the case, Clinical Pathology Laboratories, from the US, had actually read Phelan’s CervicalCheck slide.
The laboratory had its own legal team and legal strategy. The primary issue in the case was the alleged misreading of the test, and the legal liability for that rested solely with the laboratory.
“As part of the US laboratory’s defence of this issue, its lawyers sought a confidentiality clause that would have restricted Ms Phelan from disclosing details of the settlement or the case. The State Claims Agency opposed the use of a confidentiality clause in Ms Phelan’s case, and no such request was made by our agency.”
Mediation, Breen said, was the agency’s preferred route for dealing with personal injury cases, but in the Phelan case this wasn’t possible because of the laboratory’s decision to look for a confidentiality clause, and Phelan’s decision to resist that demand.
The case then went to court, but was settled, for €2.5 million, without any confidentiality clause being agreed by Phelan.
Despite having terminal cancer, Phelan has, since the settlement, campaigned in relation to the CervicalCheck programme and the issue of patients’ right to disclosure.
Breen said that the SCA places a high priority on treating people taking cases such as Phelan’s with “the dignity and compassion they deserve”, but has a statutory duty to act in the best interest of the taxpayer.
It is common in court actions that the party that is at risk of paying out damages, is in control of the defence, even if the nominal defendant is another entity. This is how it works in motor incident cases, for instance, where the insurer is likely to be in control, even though the case is against a particular driver.
The State has paid five-figure sums to women in compensation for the non-disclosure of audit findings in relation to their CervicalCheck slides, but the bulk of the millions of euro paid out, and the millions likely to be paid out in the future, comes from the laboratories.
It was the negligent readings, rather than the non-disclosure of what the audits had found, that fed into the tragic medical outcomes.
It is not clear what exactly is the arrangement between the SCA and the laboratories in relation to the CervicalCheck cases, but sources say the women and their legal teams now want the HSE to take sole responsibility for defending the cases, and resolve its dealings with the laboratories separately to the proceedings being taken by the women.
According to Cian O’Carroll, the solicitor who acted for Phelan, Morrissey and Mhic Mathúna, coming to a settlement in personal injury cases often only happens when the case is due to come to court, and the parties involved have to focus on the risks inherent in the court process. And as matters stand, the hearing of many cases is being held up by the coronavirus pandemic.
“Courts do need to be hearing cases,” said O’Carroll, “or there is no stick there to frighten both sides.”
But even where cases have been finalised and substantial damages awarded, the pain of the women persists, according to Walsh.
“I have spoken to a lot of women who have settled their cases, and they are no further along in terms of trying to move on with their lives, because they just don’t feel they’ve got justice, they don’t feel they’ve got the truth. Yes, they have been compensated financially, but still they feel very aggrieved by it and very upset, and that there are a lot of questions still out there.”
The issue of how the audit findings were not disclosed to the women until after the Phelan case is a contributing factor to the women’s ongoing distress, she said.
“The problem is the information was withheld in the beginning. When you are going to a consultant, you are putting your life in their hands. You have to put your faith in them, because there is nothing else. You build up quite a relationship with them. You see them quite a lot. They examine you internally.”
It was hard then for the women, Smith said, to find out that the same people had been withholding information, and the effect of this was to damage their trust in the medical profession.
It would be some comfort if the women felt that the shortcomings that have emerged in the CervicalCheck screening system had all been addressed, she said, but she feels that is far from being the case, and that oversight of the reform agenda has stalled.
“How can any of us move on if we can’t say that it won’t happen again to anyone else?”