Sunday 17 February 2019

Lawsuit over missed cancer was settled in secret 4 years ago

Brave mum Vicky Phelan
Brave mum Vicky Phelan

A lawsuit with striking similarities to the Vicky Phelan case was settled in secret four years ago.

The woman at the centre of the case, taken against a US laboratory and the HSE, had to sign a confidentiality agreement as a condition of her settlement, which involved no admission of liability.

She took the case, which was settled in 2014, after a smear test analysis missed abnormalities.

The woman only discovered she had cervical cancer the following year, after tests when she became pregnant.


Despite the HSE being listed as a co-defendant in the proceedings, its director general Tony O'Brien told an Oireachtas committee yesterday that the organisation has no awareness of the case at all.

The primary defendants were New Jersey-based firm Quest Diagnostics, one of three laboratories used as part of CervicalCheck, the national cervical cancer screening programme.

The woman also sued the HSE, a Dublin hospital and a hospital consultant in the action. However, it is understood the lawsuit was primarily defended by the laboratory.

The lawsuit has striking echoes of Ms Phelan's case, in which the €2.5m settlement with Clinical Pathology Laboratories also came with no admission of liability.

She was also requested to sign a confidentiality agreement, but refused to do so.

The woman at the centre of the earlier case underwent a smear test in 2011, but abnormalities were missed when this was analysed. She discovered she had cancer when she became pregnant in 2012.

The baby was safely delivered by caesarean section and she recovered from the cervical cancer. However, the woman was unable to have more children, as she had to undergo a hysterectomy.

Quest Diagnostics did not respond to queries submitted by the Herald. There was also no response yesterday from the HSE press office.

Mr O'Brien told the Oireachtas Health Committee he only learned of the settled case after seeing a reference to it in a media report.

The reference to the settled case was in an Irish Independent article published yesterday.

"We're aware from media reports today of another case that the State Claims Agency (SCA) was not involved in. It was a private case. It was reported that it was settled by one of the laboratories," he said.

The SCA handles negligence claims on behalf of 146 public bodies, including the HSE.

Labour TD Alan Kelly asked whether the HSE or Department of Health were aware of this case "and if so, are they aware that a non-disclosure agreement was signed on the case?".

Mr O'Brien replied: "The report in the media makes that reference. We had no awareness of that case at all."

The committee heard there is "no mechanism" for the SCA to alert the HSE or Department of Health when a number of similar cases are lodged.

In total, the committee heard there are 10 "active cases" involving the CervicalCheck programme.


Six of these have reached the point of legal proceedings, while the other four were described as being at "pre-legal proceedings".

The SCA has now also warned the HSE about one further "potential claim".

It comes as it emerged around 200 more women who developed cervical cancer may have been the victim of an incorrect smear test result.

They are among a group of up to 1,500 cancer sufferers whose diagnosis was not notified to CervicalCheck since 2008, the national screening service.

Their cases were recorded by the National Cancer Registry, which compiles disease statistics. But CervicalCheck never asked for the information to be passed on to its service. It meant these cases were never audited.

Senior doctors estimate less than 200 of these women could potentially have been through cervical screening service but wrongly got the all-clear.

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