State cannot treat women sympathetically if labs run cases - Phelan’s solicitor

The State Claims Agency (SCA) cannot reassure women they will be dealt with sympathetically if it seeks indemnities from the US laboratories that conducted false smear tests, Vicky Phelan's solicitor has said.

Co Tipperary-based solicitor Cian O'Carroll, who represented the terminally ill woman, was responding to testimony by the agency's director Ciarán Breen to an Oireachtas committee that it would manage any further claims in a "sensitive" manner.

The agency handled the defence on behalf of the Health Service Executive, who was co-defendant along with the US-based Clinical Pathology Laboratories, in the case taken by Ms Phelan, though the legal strategy was handled by the lab as it indemnified the State in the legal action.

The Co Limerick mother-of-two settled her High Court case against the Texas-based lab for €2.5 million last month over a false smear test that wrongly showed no abnormalities in 2011.

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A 2014 audit of the test showed it was wrong but Ms Phelan was not told about the results until 2017. She now has terminal cancer.

Her case agains the HSE was struck out.

"I don't see how the SCA can reassure women their CervicalCheck cases will be dealt with sympathetically if the the SCA are actively trying to get an indemnity from the lab," Mr O'Carroll told The Irish Times.

“Surely when they get this, just as in Vicky’s case, the lab will dictate the defence strategy - he who pays the piper calls the tune - and women could easily face the same experience as Vicky with no offer whatsoever until after several days at trial, even though the mistake was quite obviously indefensible.”

Mr Breen told the committee the State Claims Agency was facing legal cases relating to 10 other women who received inaccurate tests and that two US laboratories had provided indemnities in three of the cases.

The agency was seeking indemnification for the State in the six other cases, he said.

“If the State is going to do right by the women it has harmed, it must retain control of these and future cases,” he said.

Mr Breen told the committee 98 per cent of all cases managed by the agency were resolved “without the need for a contested court hearing.”

Mr O’Carroll rejected this statistic as “meaningless” as the majority of these cases are settled at the steps of the court.

“Cases could settle earlier if they mediated more cases and that would avoid the pre-court stress for a lot of litigants who really don’t want to be in a courthouse,” he said.

“It is, however, hard to design a system that encourages both parties to settle early because the pressure needed to convince both parties that they have the best result they can achieve is often only experienced at the steps of the court.”

Mr Breen suggested a “pre-action protocol” through which plaintiffs and defendants could file claims and counterclaims could “stop the adversarial element” of medical negligence claims and help avoid costly trials.