Emma Mhic Mhathúna and her five children are to seek exemplary and aggravated damages when their case over alleged delays relating to CervicalCheck smears goes ahead in the High Court late next month.
The terminally-ill Co Kerry woman has, along with her five children who range in age from two to 16 years, sued the HSE and a US laboratory used by CervicalCheck.
She is one of the 209 women with cervical cancer who were found to have received incorrect smear tests during a clinical audit of past tests by the CervicalCheck screening programme after their cancer diagnoses.
The 37-year-old is among 162 of those who were only told about the incorrect tests after Limerick woman Vicky Phelan settled her court case against a US laboratory for €2.5 million.
Ms Mhic Mhathúna was diagnosed with cervical cancer in 2016.
Lawyers for the HSE told the court on Thursday the case involves allegations of breaches of duty and care. They said those matters need to be investigated and certain comments made by the plaintiff’s counsel in court at this time were “unfair”.
Her senior counsel told the High Court there has been no substantive admission of liability in the case from the HSE and that is a “source of torment and anguish” and very hard to explain to his client, who has terminal cancer and is dying.
Anguish and torment
Patrick Treacy SC, for Ms Mhic Mhathúna, said it will be maintained from this date the HSE should have conceded liability and the failure to do so has caused undue anguish and torment.
“We give notice that exemplary damages will be sought,” counsel said.
Mr Justice Kevin Cross said he appreciated it was a very emotional case and these were very sad cases but counsel had “made a speech” and could have included these matters in letters between solicitors.
The judge said he was not there to receive statements which could be delivered on the steps of the court.
Mr Treacy said his solicitor had written on Tuesday of this week to the HSE asking them to admit full liability.
Patrick Hanratty SC, for the HSE, said the case involved alleged breach of duty and alleged breach of care and these have to be investigated. He said it was unfair to have these comments made in public against the HSE at this time.
The case was before the court on Thursday for case management after Ms Mhic Mhathúna had on Wednesday asked the HSE to make a decision on its stand on liability within the next 24 hours.
Her counsel said on Wednesday Taoiseach Leo Varadkar and Minister for Health Simon Harris had said everything will be done and nobody will be forced to go to court and there would be mediation. His client wanted the case settled as quickly as possible, he said.
Mr Hanratty said it was the first they had heard of being asked to decide on liability in the next 24 hours. The HSE realistically could not make a decision on full liability in 24 hours, he said.
Political statements
In court on Thursday, Mr Treacy said that when the case was previously mentioned, the judge had said the court was not the place for political statements. Counsel said this was acceptable and what he was making was a “legal statement”.
He said the position of the HSE in this case is contradicting what the Taoiseach and Minister for Health have said.
“We now have a legal reality exemplary and aggravated damages will be sought in the case,” he added.
He said he accepted not all cases of misdiagnosis result in an admission of liability but this case was “different” .
He said the case centred on a 2013 slide but last Monday the Mhic Mhathúna side found there was a 2010 slide which was allegedly misread. Counsel said at that time Ms Mhic Mhathúna should have been recalled for a mandatory procedure.
“We have a situation where Ms Mhic Mhathúna is not just saying there is one but two misread and that liability is not immediately conceded is a source of grave torment to her . It’s is very difficult to explain to her why liability is in issue,” Mr Treacy said.
Mr Justice Cross said he thought the lawyers on both sides had done everything in their power and those representing the defendants in the case also had obligations to their clients.
The judge hearing the case will consider all matters and a decision will be made as soon as possible, he said.
The hearing date for the case was set for the end of this month.