Cervical Cancer Update – Decision of Supreme Court in Ruth Morrissey
On the 19th March 2020, the Supreme Court dismissed most of the appeals by the Health Service Executive (HSE) and two laboratories, Quest Diagnostics Incorporated and Medlab Pathology Limited against a High Court judgment in favour of Ruth Morrissey and her husband Paul Morrissey arising from the misreading of her cervical smear tests.
Ruth Morrissey was not told until 2018, that a review carried out in 2014, showed smears taken under the CervicalCheck screening programme in 2009 and 2012, had been incorrectly reported. Her cancer returned in 2018 and she now faces a terminal diagnosis.
In July 2019, Mr. Justice Cross made an award in Mr. and Mrs. Morrissey’s favour of €2,152,508 against all three Defendants and an additional sum of €10,000 in nominal damages as against the HSE, in respect of its failure to notify her of the results of the audits of her earlier smear tests.
Supreme Court Appeal
The High Court decision was appealed to the Supreme Court. The Government had guaranteed in the Dáil and correspondence from the Chief State Solicitor, irrespective of the outcome, Ruth and Paul Morrissey would retain the entire damages, plus their legal costs.
The HSE argued that Mr. Justice Cross’s finding that individual screeners must have absolute confidence before passing a test as negative had far-reaching consequences, and that it would affect cancer screening services and medical diagnoses generally.
Chief Justice Frank Clarke noted that the question in the case was what the professional duty in screening should be and whether it was proven that the actions of any of cervical screening professional had fallen below the reasonable standard that they should have applied. The court was told that UK professionals in this field apply a standard of “absolute confidence”.
The Supreme Court held that the High Court was correct in applying a standard for screening where screeners should have no doubt that a sample is adequate, and that it does not contain any suspicious material, before stating that it is clear. It was the experts, not the court, who identified the standard expected of a normally competent screener as being one which precludes giving a clear result, unless, there was absolute confidence that the test was clear.
The Supreme Court judgment in Dunne v National Maternity Hospital remains the legal standard in clinical or professional negligence claims, which is whether no reasonable professional of the type concerned could have carried out their task in the manner which occurred in the case in question.
The most professional screening, carried out to the very highest standards may still lead to different results by competent professionals, and a retrospective review of the screens following diagnosis may also give another result. This is a matter that must be reviewed on a case-by-case basis.
The Supreme Court held that Mr. Justice Cross was incorrect to hold that the HSE was vicariously liable for the negligent acts of the laboratories. However, the HSE had a “non-delegable duty”, which he described as a “potentially developing area of primary liability” in respect of patients availing of CervicalCheck. The part of the HSE’s appeal which suggested it should not be fixed with any liability in respect of negligence established against the laboratories was dismissed.
The Supreme court allowed Medlab’s appeal over damages awarded to Paul Morrissey to account for services which would have been provided to the family by Mrs. Morrissey were it not for her shortened life expectancy. The law in this area may be “potentially anomalous” in certain respects but that is a matter for the Oireachtas.
The Supreme Court upheld key High Court findings concerning the legal standard of care for cervical cancer screening in particular a screener should not give a clear result in respect of a slide “unless they had no doubt but that the sample was adequate and did not contain any suspicious material”.
While the High Court was incorrect in finding the HSE was vicariously liable for the negligent acts of laboratories in Ms Morrissey’s case, the HSE did have a non-delegable duty in respects of patients availing of Cervical Check. In short, the HSE were liable for the failings of the laboratories.
The Supreme Court’s decision will impact on other cervical cancer cases and the work of the Cervical Check tribunal.
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or email@example.com if you would like more information.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.