The High Court has ruled that the HSE was entitled to an indemnity against two US laboratories for all of the €2.16 million award, except for a sum of €10,000 in nominal damages awarded against the HSE over the non-disclosure of smear-test audit results.
Mr Justice Cross made the ruling in the case of terminally-ill cervical cancer patient Ruth Morrissey and her husband, Paul Morrissey, of Monaleen, Co Limerick. On Friday they were awarded €2.16 million over her CervicalCheck smear tests after winning their landmark action.
The couple sued the HSE and two US laboratories . It was alleged there was failure to correctly report her smear samples taken in 2009 and 2012 and that her cancer spread unidentified, unmonitored and untreated until she was diagnosed with cervical cancer in June 2014.
Two laboratories
The HSE, the judge said, no less than the two laboratories – Quest Diagnostics and MedLab laboratories – had a liability to Ms Morrissey as the organisers and being responsible for the cervical smear tests.
The HSE determined the standard to be applied in relation to screening and determined the international standard to which the laboratories were expected to conform.
The HSE also provided for the manner in which the screening should be conducted and how it should be reported, he said.
Had the HSE not contracted out the screening programme to Quest Diagnostics and MedLab laboratories, it was a service it would have provided itself, he added.
Mr Justice Cross said it would have been preferable in this case had the HSE merely put liability in issue.
He said the HSE admitted from the start that, were any of the slides negligently read, it had a liability and pleaded it was entitled to an indemnity against the laboratories.
Unreasonable
The judge said it would be unreasonable to expect the HSE to admit liability just because the slides were misread and each case must be assessed on its merits. He concluded that the HSE was not to be penalised for taking such a decision in relation to liability before there has been any judicial pronouncement on that topic.
Earlier in his judgment, he said the cervical smear-testing programme was in itself “entirely admirable and is an important aspect of healthcare being provided or under the auspices of the HSE to the public”.
He said the public outcry in these cases had tended to misstate the issues and not be of any assistance to those given what “so ominous a diagnosis”.