Sunday 19 August 2018

'No winners here' - terminal cancer mum settles €2.5M claim

Vicky Phelan leaves court after the announcement of a settlement. Photo: Collins Courts
Vicky Phelan leaves court after the announcement of a settlement. Photo: Collins Courts

A mother-of-two with terminal cervical cancer who was wrongly given the all-clear seven years ago has said she suffered an "appalling breach of trust" after her High Court action was settled for €2.5m.

Vicky Phelan launched the legal proceedings after it emerged that her smear test, which showed no abnormalities, was found to be incorrect in a later review.

She told the court she was extremely angry that she was not told of the 2014 review of her smear test for another three years.

"If I was diagnosed I probably would have had to have a procedure and at worse a hysterectomy," she said.

"If I was told sooner I would not be in a position of a terminal cancer diagnosis."

Speaking outside court, Ms Phelan (43), of Carrigeen, Co Limerick, called for an investigation into the CervicalCheck screening programme.

"To know for almost three years a mistake had been made and I was misdiagnosed was bad enough," she said.

"To keep that from me until I became terminally ill, and to drag me through the courts to fight for my right to the truth, is an appalling breach of trust."

Ms Phelan broke down in tears as she thanked her husband, Jim, and family.

"There are no winners here today. I am terminally ill and there is no cure for my cancer," she said.

"My settlement will mostly be spent on buying me time and on paying for clinical trials to keep me alive and to allow me to spend more time with my children. If I die - I truly hope that won't be the case - the money will provide for my family."

Procedure

She was given the news last January that without palliative chemotherapy she has only six months to live, and about 12 months with the therapy.

Her counsel, Jeremy Maher, told the court at the outset of the case that if Ms Phelan's cervical cancer had been detected in 2011 when she underwent the smear test, she could have had a simple procedure and there was a 90pc chance she could have been cured.

On the fourth day of the hearing yesterday, Ms Phelan and her husband were in court as the settlement was announced.

The court was asked to make directions in relation to the part of the settlement which is for the Phelan children, Amelia (12) and seven-year-old Darragh.

Mr Justice Kevin Cross said he was delighted the case had been settled and described Ms Phelan as the most impressive witness he had ever come across.

The case against the HSE was struck out and the settlement was only against the US laboratory Clinical Pathology Laboratories of Austin, Texas, which analysed the smear test.

The settlement was without admission of liability.

Ms Phelan, who has recently started on a new drug, is still hopeful of being accepted on to a US programme offering radical treatment, and has already raised €200,000 through a GoFundMe page.

In the action by Ms Phelan and her husband, there was also a claim for aggravated and exemplary damages over the alleged failure to tell her for three years that a review of her 2011 smear test showed the original result was incorrect.

It was claimed the alleged failure to diagnose the 2011 smear test sample caused a situation where Ms Phelan's cancer was allowed to develop and spread until she was diagnosed in July 2014.

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