'We haven’t even seen the tip of the iceberg': – fighting the CervicalCheck cases
Tipperary solicitors take women’s emotional court battles to the US labs and the HSE
Solicitors Siobhan Ryan and Cian O’Carroll outside the Four Courts. Photograph: Nick Bradshaw
Tipperary solicitors Cian O’Carroll and Siobhan Ryan are decompressing over water in a Dublin hotel a short walk from the Four Courts after another traumatic day at trial.
“When you see lawyers get upset . . .,” said Ms Ryan, trailing off, referring to the emotional punch delivered by their evidence in an uncomfortably muggy Court Two.
Over two days, Ms Morrissey, who is terminally ill with cervical and breast cancer, revealed deeply personal details and intimate moments. The couple are fighting a case against two US laboratories, Quest Diagnostics and Medlab Pathology, over claims that they misreported her 2009 and 2012 smear tests and the HSE for not telling them about the incorrect test results for years.
Ms Morrissey has less than a year to live, the court was told. She was diagnosed with cancer in 2014 and it recurred earlier this year. She was not told about a 2014 audit revealing the incorrect smear tests – known to her doctors in 2016 – until last May, days after the CervicalCheck scandal broke.
The HSE admits liability on the non-disclosure; the labs deny the claims.
On Wednesday she told Mr Justice Kevin Cross about her seven-year-old daughter telling her during night-time cuddles on Sunday that she “didn’t want mammy to pass away” and her daughter asking whether her death “would mean she would have to live with somebody else”.
Ms Morrissey’s physical appearance made her testimony all the more harrowing as she bore the physical impact of her illness, her head bald from the severity of her cancer treatment.
Ms Ryan explains that their law firm, which carries Mr O’Carroll’s name, has not just built a reputation fighting medical negligence cases for clients but a thick skin in dealing with people who “come to us when something bad happens in their lives”.
Still, even that skin has not been thick enough for the deeply affecting and growing number of CervicalCheck cases crossing their desks.
“A cry in the office is not that strange; a cry in court is pretty unusual,” said Mr O’Carroll.
“I have done both in the last few weeks,” added Ms Ryan.
The solicitors were the first to see what was coming down the tracks at the HSE and the Department of Health after another terminally ill Limerick woman, Vicky Phelan, walked into their office in early February seeking representation and adamant that she would not sign a confidentiality clause.
In the months since Phelan’s case was settled for €2.5 million after three days at trial in April, it has emerged that 220 other women received false tests and most were not told about them.
Among the other emotions Mr O’Carroll feels is anger that another terminally ill woman has this week to take the very same hot seat in Court Two as Ms Phelan did in April. Taoiseach Leo Varadkar had promised in May that the State would take over their cases and pursue the labs so no other sick woman affected by the CervicalCheck scandal would have to endure the trauma of a trial.
“Either he misspoke or the people who are really in charge, the grown-ups, came in and overruled his remarks about how women would be treated because clearly there is no consistency between what he and Minister for Health Simon Harris have said and how they are being treated,” said Mr O’Carroll.
Ms Morrissey did not expect to have to go to trial because of Mr Varadkar’s remarks, he said.
She is the fourth woman to end up at the Four Courts following the settlements with Ms Phelan, Kerry woman Emma Mhic Mhathúna and Ms “K” who wished to remain anonymous.
All four were represented by Mr O’Carroll’s firm.
Ms Ryan recalls her initial shock at the beginning of this whole controversy, seeing the cancer “miss” in Ms Phelan’s case because she, “like every other woman, had faith in the system”.
Evidence of the cover-up emerged later when records released under discovery identified Ms Phelan as patient “M” pointing to 14 other women on a redacted list, from “A” to “L”, “N” and “O”.
CervicalCheck’s circulars to doctors, advising them to put incorrect smear test results on the files of the dead women (rather than tell their families) is what shocked Mr O’Carroll most. It was evidence of “institutional deliberate avoidance,” he said.
“It is something that you wouldn’t say in a hushed conversation, but they wrote it down and put it in a circular and sent it off. They didn’t give a toss,” he said.
The CervicalCheck legal cases have put the Co Tipperary firm squarely in the spotlight. The learning curve has been steep but running the Phelan case meant they have “hit the ground running,” said Ms Ryan, while Mr O’Carroll says their firm has experience in “quick litigation” in helping very sick clients.
In the highly competitive, dog-eat-dog legal world, Mr O’Carroll said the firm had received loads of “lovely” congratulatory emails and cards that they have “portrayed the profession in a good light”.
He grimaces when asked about the personal profile the CervicalCheck scandal has brought, preferring to see his sometimes-passionate recent media performances in the context of important public advocacy.
“I was using my knowledge of the facts to marshal attention to what my client felt were the key issues which related to patient safety and none of it is to do with self-promotion,” he said.
“But you end up talking on radio programmes and people say, ‘oh there is your man again.’”
In terms of future cases or how far this scandal has still to run, Mr O’Carroll said: “We haven’t even seen the tip of the iceberg.”
The headline-grabbing Phelan, Mhic Mhathúna and Morrissey cases, as personally intrusive as they were, were inevitable in a scandal of this scale.
“A couple of people will always have to stick their neck out and sacrifice something at the beginning of any group issue like this,” he said.