Three women at the centre of 10 outstanding legal cases against the State over incorrect smear tests have died, the agency that manages legal claims against the State has told an Oireachtas committee.
Ciarán Breen, the director of the State Claims Agency, was testifying about other legal claims facing the State beyond the action settled by terminally ill Limerick woman Vicky Phelan against a US laboratory.
The 43-year-old mother of two discovered that a 2011 smear test that had initially shown no abnormalities was, three years later, found to be wrong. However, she was not told of the false negative test until September 2017.
Ms Phelan settled her High Court case with the laboratory for €2.5 million last month. The fallout from her case ultimately revealed that scores of women were wrongly told they had normal smear tests through the CervicalCheck screening programme, prompting the Government to set up a scoping inquiry into the scandal.
Mr Breen told the Oireachtas finance committee that there were 10 other claims, including one potential claim, facing the State but that in three cases indemnities had been received from US laboratories. Indemnities were being sought in the other six active cases, he said.
None of the nine active claims involved allegations about the failure to disclose the false smear test results, he said. The women had died in two of the nine active cases and in the potential case.
He disclosed to the committee that all of the outstanding legal claims involved US laboratories that the HSE’s CervicalCheck screening programme had outsourced testing to since 2008, including Clinical Pathology Laboratory, which settled the case with Ms Phelan.
The agency had a duty when managing personal injury claims “to manage any individual claim in a humane, ethical, professional and sensitive manner,” he said in his opening statement.
‘Did everything’ to prevent court case
Mr Breen said that the State Claims Agency “did everything in our power” to prevent Ms Phelan’s case going to court. He said the only reason it did was because the US laboratory, which had offered the State an indemnity and was going to settle, had difficulty getting instructions from its insurance company.
"We were at all times pushing for making sure that Vicky Phelan got a settlement," he said in response to questions from Fine Gael Senator Kieran O'Donnell.
The agency only learned of the Phelan case in February when it received her legal claim and of the “wider implications” that many more women had not been informed from media reports last month.
Mr Breen said that the agency was told by CervicalCheck in written communications during the Phelan case that the women had been told. He could not, however, name the individual.
“We had no other impression that they had been told,” he said.
He said the State Claims Agency, which handled the HSE’s defence of Ms Phelan’s claim, opposed the US laboratory’s demand for a confidentiality clause, which Ms Phelan refused to sign, leading to the collapse of mediation talks and the case ended up at trial.
“We opposed it all the way,” he said.
Asked what changes were needed to ensure other women were “not dragged through the courts”, Mr Breen said that the laboratories should “deliver compensation in the shortest period of time without any gagging clause and making sure that the women aren’t put through the kind of trauma that Vicky Phelan was put through.”
Sinn Féin TD Pearse Doherty accused the agency of operating like Pontius Pilate by “washing your hands” of the women or their families by telling them to sue the laboratories. The agency should take “moral responsibility” and settle with the women and that it should pursue the laboratories for damages for failing in their duties, he said.
“We are constrained by our statutory remit,” said Mr Breen in response. “We can only do things in a particular way which is to ensure that the State does not pay out when another party should pay out.”
If the State has a liability in any of the forthcoming cases, the agency will “ensure that injured parties don’t go through the trauma that Vicky Phelan went through,” said Mr Breen.
A redress scheme to compensate affected women was a matter for “the Government of the day,” he said.