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Posted in [Blog Medical Negligence ] on Tuesday, May 1st, 2018

I watched Ray Darcy’s interview with Vicky Phelan last Saturday night and I am in awe of her. She (deservedly) got a standing ovation from the audience. For anyone who has not watched the interview, I would urge you to do so.

Many commentators have lavished praise (and rightly so) on Ms. Phelan since her tragic story first came to light last week, on the conclusion of her court case against Clinical Pathology Laboratories Inc. and the HSE.

Not many people know what it takes to prosecute a medical negligence case against the might of Defendants such as these. (Clinical Pathology Laboratories Inc. has over 1,850 employees).

It is unbelievably stressful and takes a huge amount of courage and determination of which this lady has in spades. This is aside from the financial risks which are huge.

I am of the view that the Defendants were hoping Ms. Phelan would die before her case got to Court. That is not a view I come to lightly. It is formed after having practised in this area for over ten years and having seen a defend and deny approach taken time and time again.

For too long the HSE (through its indemnifiers, the State Claims Agency) have got away with this bring them to the brink approach. Vicky Phelan took them on and faced them down.  Ms. Phelan has revealed that a confidentiality agreement was put in front of her at the beginning of the mediation, which took place some couple of weeks before the High Court case commenced. I would like to think that I would have had the bravery and fortitude to say No, to signing that agreement, as Vicky did. It would have been a much easier path to take. Her family would be taken care of. There would be no publicity. No one would know her business. She could concentrate all her efforts on accessing treatment and on her lovely family.  We women are so lucky that Vicky was so brave and selfless.

I saw Vicky’s reaction when Ray Darcy told her the breaking news that Grainne Flannelly the CervicalCheck Director had resigned. It was not triumphant. It was more that she knew that someone was finally being held to account. We have seen time and time again where mistakes are made; no one is accountable and “systems failure” is blamed. There have to be consequences for actions taken (or not as the case may be). Only then will lessons be learned.

If Ms. Phelan had died, her case would have died with her. We would have been none the wiser as unbelievably a Circular from the HSE July 2016 (two years after the audit was carried out which identified the incorrect smear test) states that:-

“……. as a general rule of thumb, the outcome should be communicated to the woman with a focus on the context of confronting the overall clinical scenario.”
………Clinicians should use their judgment in individual cases where it is clear that discussion of the outcome of the review could do more harm than good.
In cases where a woman has died, simply ensure the result is recorded in the woman’s notes.”

At the time of writing, I understand from the drip-feed of information that we have been getting over the past week that 17 women whose cancer was missed have died. (It was reported as 12 yesterday morning). They died not knowing that a mistake was made in their care. It has also been reported that 208 women in total had their cancer missed and 162 of them have not been told of the errors to date.

But I also understand that the audit in 2014 only looked at women who have been diagnosed with cancer. There may be hundreds of women developing cancer or living with undiagnosed cancer (having had an incorrect smear report) but because they have not yet been diagnosed, they have not triggered an audit to take place. So what happens to the hundreds of women who have incorrect smears, but because they have not been diagnosed yet, they could now be ignoring symptoms etc. and relying on their false report? Should CervicalCheck not issue a safety warning to the public saying if you have x y z symptoms go to your GP for another smear now as opposed to saying ring a helpline? Unless there is an audit of every smear (which is unrealistic) or a fresh smear done, those women may not be caught until it’s too late.

In 2015, when he was Minister for Health, Leo Varadkar said that a failure of health professionals to disclose errors and to avoid their duty to be candid was equivalent to a “hit and run”. This policy of the HSE in this instance of not informing those affected or their next of kin is akin to a legalised hit and run. Mr. Varadkar promised at the time to make it mandatory for medical and nursing staff to admit errors that have caused harm to patients. It was within his gift to change the system and instead he did a U-turn for reasons that I have yet to work out.

Indeed, I wrote about Leo Varadkar’s U- turn on doctors’ duty to disclose mistakes two years ago.

Recent media reports report that the Taoiseach Leo Varadkar said “how filled with sadness I am” about Ms. Phelan and her case and for her and her family.

“I am very concerned for the other women and their families who must be very concerned and who have questions that they want answered. We will try and answer them as soon as we can.”

This has echoes of what he said following the RTE Primetime Investigates Programme on the inspirational Alison McCormack in February 2018. He stated in Leader’s Questions on the 21st February 2018:-

“I want to offer her my sympathies and I want to thank her for her bravery in coming forward and making the case public so lessons can be learned and not repeated.
It is a very sad truth that as long as we have a health service that is run by people with the help of machines there will be human error and there will be machine error. The important thing, however, is where errors occur they are admitted, that hospitals and clinicians are honest about their errors and that they are identified and minimised.

There is a duty of candour to inform patients if a mistake has occurred. In order to enforce this, just in the last few months the Oireachtas has passed legislation to protect open disclosure. I appreciate that this law was not in place at the time but is now in place. We now expect from our hospitals – from management and from clinicians – that they engage in the duty of candour when mistakes have occurred.”

We know that duty of candour did not work in Alison McCormack’s case. It did not work in Vicky Phelan’s case.

It was reported in the Irish Times on Saturday the 28th April 2018, that the Department of Health has said that new legislation which would make mandatory the open disclosure to patients of serious incidents in the health service, is being prepared. The Department said on Friday that the measure would form part of a new Patient Safety Bill on which it was currently working.

It is a sad fact that the truth has to be legislated for. Isn’t it a pity that it took the tragic and shocking case Vicky Phelan for this penny to finally drop?

As a woman and as a mother of two teenage daughters, thank you Vicky Phelan.

Karen Kearney, Medical Negligence Solicitor, Cantillons Solicitors

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or if you would like more information.

In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.” 

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