The Government is expected to review the mediation process in dealing with some cases of women caught up in the CervicalCheck screening controversy after unexpected legal “aggression” from laboratories at the centre of the scandal.
Taoiseach Leo Varadkar now says he should have been clearer when he promised in May that no women involved in the scandal would have to go to court.
Sources said the attitude of the laboratories had caused surprise in recent weeks, and that a fresh approach may be needed in cases where the firms do not admit liability.
It is understood that laboratories are seeking to fight cases where they do not believe there has been negligence on behalf of their staff in dealing with cervical screening. Increased legal aggression was evident in a “very small number of cases”, said a source.
Mr Varadkar and Minister for Health Simon Harris have been under pressure over the commitments made in May that the State would take over the women's cases, seek settlements by mediation and pursue the labs for damages so the women would not have to go to trial.
Incorrect tests
In the High Court, Limerick woman Ruth Morrissey, who has cervical and breast cancer, and her husband Paul are suing two laboratories, Quest Diagnostics and Medlab Pathology, for her misreported smear tests in 2009 and 2012, and the HSE for failing to tell her about an audit revealing the incorrect tests for two years.
Ms Morrissey (37), whose doctors have told her she has less than a year to live, was forced to take the witness stand for two days last week and deliver personal testimony about the pain she is suffering and about the impact of her terminal illness in relation to her seven-year-old daughter.
Mr Varadkar said a complication had arisen “in this particular case as negligence has not yet been established in relation to the screening of the particular smear tests.
“This comes back to an issue we have had since the very start, that all false negatives are not negligent. False negatives are part and parcel of screening and all of them are not negligence. Indeed, most of them are not negligent.”
Of course not all false positives are negligence. I myself have made that point
Mediation, it is argued by sources, should not be concluded until expert medical reports are available. Mr Varadkar said the Government wanted all cases settled by mediation, but sources said such mediation processes may have to be refined to ensure they do not concluded prematurely.
Compensating for cases of false negatives, it is argued, would undermine the viability of screening programmes such as CervicalCheck.
‘Irresponsible’
However solicitor Cian O’Carroll, who represents Vicky Phelan and Emma Mhic Mhathúna, among others, said the Taoiseach was being “irresponsible” and trying to “muddy the issue” by making this point.
“Of course not all false positives are negligence. I myself have made that point. In fact the vast majority of false negatives are not negligent,” Mr O’Carroll told The Irish Times.
But he said the 221 women identified by CervicalCheck as affected by the controversy were specifically selected because “their tests were misread to a significant degree and it had resulted in a delay to their diagnosis and treatment”.
He said he could not say negligence was a factor in all 221 cases but the indications were the vast majority fell into this category.
