Judge urges sides to consider mediation in case of woman ‘on her deathbed’

Joan Lucey who has terminal cervical cancer is suing the HSE and two laboratories

A High Court judge has urged consideration, at the "highest level", of mediation in the case of a 73-year old woman with terminal cervical cancer who is suing over cervical smears taken 10 years ago.

"All Joan Lucey is being offered on her death bed is sympathy. It is hollow sympathy," her counsel Oonah McCrann SC told the court on Thursday.

Counsel said the HSE – being sued along with two laboratories — will not take up an invitation to mediation talks in advance of the action, listed for hearing next week.

The HSE wants the other parties to also attend any mediation but the laboratories are baulking at engaging in mediation until a third party issue has been resolved, the court has been told.


Mr Justice Kevin Cross said on Thursday the parties should take instructions at the highest level to see if the case can be resolved through mediation.

A widow and retired nurse from Co Kerry, Mrs Lucey has sued the HSE and two laboratories.

Her lawyers last week asked for mediation amid concerns a large part of her case could die with her.

Ms McCrann told the court on Thursday it was very difficult to explain to her client why the HSE won’t accept the invitation to mediate the case next Tuesday.

"She is on her deathbed. It is simply cruel," counsel, instructed by Aisling Maher of Cantillons solicitors, told a remote court hearing.

Her side had written to the defendants seeking confirmation Mrs Lucey’s claim for general damages will survive if she dies before the conclusion of her case and the HSE would only give such confirmation if the other parties also agree, counsel said.

Mr Justice Cross put the case in for mention on Friday for an update.

Mrs Lucey, from Cooleen, Dingle, has sued the HSE; Clinical Pathology Laboratories Incorporated (CPL)with headquarters in Austin, Texas, USA; and MedLab Pathology Ltd with registered offices at Sandyford Business Park, Dublin.

She alleges misreading or misinterpretation or misreporting of cervical smears taken in February 2011 and August 2011.

It is claimed, in February 2011, Mrs Lucey had a smear test looked at by CPL under the supervision of MedLab which came back as negative with a recommendation for the repeat smear in six months. It is also claimed she was referred to the Scotia Clinic, Tralee, on April 29th 2011 where a swab came back as negative and she was advised she was HPV negative.

In August 2011, it is claimed Mrs Lucey had a repeat smear tested by CPL under the supervision of MedLab which was reported as negative with a repeat smear recommended in a year.

It is claimed, for the subsequent seven years, Mrs Lucey had annual smear tests taken by her GP all of which were reported as negative, and a smear test and a HPV test in October 2018 which were reported as negative in May 2019.

Mrs Lucey then got a letter from CervicalCheck advising she had completed her cervical screening.

In December 2018, Mrs Lucey began to suffer from fatigue and developed lower back pain in May 2019. She was later admitted to hospital for investigations and an MRI scan showed cervical cancer.

It is claimed, notwithstanding undergoing regular smear tests as advised, cytological cell changes were allowed to develop and spread unidentified, unmonitored and untreated until she was diagnosed with cervical cancer in July 2019.

All the claims are denied.

CPL has joined, as a third party to the proceedings, a consultant obstetrician, Dr Mary McCaffrey of The Scotia Clinic, Tralee. CPL has alleged failure to assess or investigate Mrs Lucey when she attended the clinic on April 29th 2011, allegedly resulting in a missed opportunity to diagnose pre invasive disease. The claims are denied.