Woman with terminal cancer gets €2.5m High Court settlement
Vicky Phelan sued US laboratory over incorrect smear test
Vicky and Jim Phelan leaving the Four Courts after the announcement of a settlement of their High Court action for damages. Photograph: Collins Courts
A woman who is dying of cervical cancer and who sued over a smear test carried out seven years ago has settled her High Court action for €2.5 million.
The settlement, made without admission of liability, was against Clinical Pathology Laboratories Inc, Austin, Texas.
Vicky Phelan had also sued the HSE but the case against it was struck out.
Ms Phelan, a 43-year-old mother of two from Co Limerick, took proceedings after it emerged her 2011 smear test, which showed no abnormalities, was found, in a 2014 audit of smear tests on a number of women, to be incorrect.
She was diagnosed with cervical cancer in 2014 but did not learn of the review or audit until 2017.
She told the High Court she was extremely angry she was not told of the 2014 review of her smear test for another three years.
“I was in shock when I was told. I am angry, extremely angry. If I was diagnosed I probably would have had to have a procedure and at worse a hysterectomy,” she said.
“If I was told sooner, I would not be in a position of a terminal cancer diagnosis.”
Ms Phelan was told last January, without palliative chemotherapy, she has just six months to live while, with the chemotherapy, she has about 12 months.
Her counsel Jeremy Maher SC, instructed by Cian O’Carroll, solicitor, said at the outset of the case that his side’s experts would say, had Ms Phelan’s cervical cancer been detected in 2011 when she had a smear test, she could have had a simple procedure and there was a “90 per cent chance” she could have been cured.
Their experts would say she would not have developed invasive cancer and would have survived into her eighties, he said. “She should have another 40 years to look forward to but she has a couple of months.”
Ms Phelan and her husband Jim were in court as the settlement was announced on Wednesday, the fourth day of the case. The court made directions in relation to part of the settlement which is for the couple’s children, Amelia (12) and Darragh (7).
Mr Justice Kevin Cross, approving the settlement, said he was delighted the case had settled and described Ms Phelan as one of the most impressive witnesses he had seen in his court.
The case against the HSE was struck out and the settlement was against the US laboratory Clinical Pathology Laboratories Inc, Austin, Texas only. The settlement was without admission of liability.
Wishing Ms Phelan success with her hope to get to the US for groundbreaking treatment the judge said: “If anyone can beat this, you can.”
Ms Phelan has been recently started on a new drug and is hopeful of being accepted onto a US programme offering radical innovative treatment. She has raised €200,000 though a Go Fund Me page.
In the action, Ms Phelan and her husband also claimed aggravated and exemplary damages over alleged failure to tell her for three years that a 2014 review of her 2011 smear test showed the original result of no abnormalities was incorrect.
A university educational manager, Ms Phelan, of Carrigeen, Annacotty, Co Limerick, and her husband had sued over a smear test taken under the National Cervical Screening Programme CervicalCheck and analysed in the US laboratory.
The smear test of May 24th, 2011 showed no abnormality was detected and Ms Phelan was advised by letter to that effect in June 2011.
She had another smear test in June 2014 which, on analysis, showed a high grade lesion and she was referred to a consultant. In July 2014, she was diagnosed with cervical cancer and underwent radical chemoradiotherapy.
It was claimed, subsequent to her cancer diagnosis, and unknown to her, a review was carried out of previous smear tests from women who had a cancer diagnosis.
A review of the May 2011 sample from Ms Phelan showed the original report in relation to the smear was incorrect and the smear test showed suspected cancerous cells.
In September 2017, Ms Phelan was advised of the review and in November was diagnosed with an incurable Stage 4 cancer and given a life expectancy of between six and 12 months.
It was claimed the alleged failure to diagnose the 2011 smear test sample caused a situation whereby Ms Phelan’s cancer was allowed to develop and spread unidentified, unmonitored and untreated until she was diagnosed with cancer in July 2014.
It was further claimed she was deprived of the opportunity of timely and effective investigation and management of her condition and deprived of the opportunity of treatment at a time when her disease was amenable to curative treatment.
The claims were denied.
Mr Maher had told the court an expert on their side would say there were plentiful abnormal cells in the 2011 smear sample and failure to identify them amounted to a clear breach of duty. Ms Phelan was reassured when she was told there were no abnormalities and she would not need a check for another three years, he said.
‘Very bad news’
In 2014 Ms Phelan was called for a smear test which was “very bad news” and was referred to a consultant for a series of invasive treatments. She generally felt well in 2015 and 2016 but reattended in September 2017 for a CT scan. It was then she was told of an audit of cervical smears from 2011 which was carried out in 2014, he said.
“For the first time she was made aware the smear test report of 2011 was incorrect and in fact it was an incorrect result,” Mr Maher said.
Speaking to reporters outside court afterwards, Ms Phelan called for an investigation into the CervicalCheck screening programme.
“To know for almost three years a mistake had been made and I was misdiagnosed was bad enough but to keep that from me until I became terminally ill and to drag me through the courts to fight for my right to the truth is an appalling breach of trust,” she said. “I truly hope some good will come of this case and there will be an investigation in the CervicalCheck programme as a result of this.”
Ms Phelan broke down in tears as she thanked her husband Jim and family.
“To my family and friends and my supporters who supported my decision to take this case at a time I really should be concentrating on my health, I would not have been able to do this without you.
“There are no winners here today, I am terminally ill and there is no cure for my cancer. My settlement will mostly be spent on buying me time and on paying for clinical trials to keep me alive and to allow me spend more time with my children.
“If I die, and I truly hope that won’t be the case, the money will provide for my family,” she said as her husband comforted her.
She thanked her lawyers for bringing the case before the courts so quickly and also thanked Mr Justice Kevin Cross.