On the 26th January 2021, Pat Daly, Partner, settled a case for a 46 year old mother of four who has a terminal cervical cancer. The lady is one of the original 221 women affected by the cervical cancer controversy. In 2015, she was diagnosed with cervical cancer set against a background of negative smear tests and she underwent a radical hysterectomy. In 2016, the results of the CervicalCheck Review indicated that her smear tests were significantly upgraded and same were communicated to the lady’s Consultant Oncology Gynaecologist who did not disclose the results to the lady until May 2018. At a meeting in May 2018, the Consultant informed the lady that although two smear tests (January 2011 and January 2012) had been significantly upgraded, this did not alter the course of events. The lady accepted the apology for the non-disclosure and accepted the explanation offered by the Consultant and she was thankful to the Consultant that he had excised her cancer and she was well. However, the Royal College of Obstetricians and Gynaecologists’ Expert (“RCOG”) Review Panel findings disagreed with four of the original smear tests and concluded that had the smear tests been reported correctly, it would have either prevented the cancer from developing or the cancer would have been diagnosed at an earlier stage.
In December 2019, the lady and her husband were shocked and dismayed when they were told and their trust in the medical profession was severely impacted by the RCOG conclusion.
In January 2020, the lady decided to investigate a potential claim. Unfortunately, in February 2020, the lady received the devastating diagnosis that the cancer had reoccurred. Subsequently, she was informed that it had metastasised and her condition was deemed terminal. Clearly, the case had to be expedited. We faced many problems during the first Covid-19 lockdown (March 2020). There were difficulties in getting in records and getting the slides delivered to the laboratories. However, we persevered and obtained reports from appropriate experts. The lady had chemotherapy (palliative) and we were concerned for her given that the Country was dealing with the Covid-19 pandemic and the implications it has for individuals whose immune systems are compromised after receiving chemotherapy. The lady’s prime objective in bringing the case was to secure her family financially. However, the Supreme Court decision in Morrissey determined that, what we lawyers call, “loss of services”, i.e. the domestic tasks of doing the laundry, shopping, cleaning and cooking, cannot be included in a case for a terminally ill person, because the law as it currently stands specifies that such a claim can only be brought following a death and that it was for the politicians to rectify the legislation.
There have been repeated calls by not only the 221+ group, but also from opposition TDs for the legislation to be amended, but to no avail. Thus, potentially, this aspect of the claim would not be recoverable. However, we brought such a claim. This case was fought with considerable vigour by the laboratories involved. The lady was put to the pin of her collar in answerer requests from the Defendants, gathering in records, in attending Solicitors offices to get Affidavits sworn and ultimately giving evidence remotely during the darkest days of the pandemic. The stress of the financial exposure that the family were going to be exposed to, if the matter was lost, was also very burdensome. There was also the psychological fallout if the case was lost as the family home was at risk. We are thankful for the herculean efforts of the Courts Service and Judiciary who, during Level 5 restrictions, facilitated the hearing of the lady’s case.
The Trial commenced on the 22nd January 2021 and the lady gave her heartfelt evidence on the 25th January 2021 and the case was settled on the 26th January 2021. The final words to the Judge by the Barrister for one of the laboratories was to remind the Court that the case settled “without admission of liability”. This was insulting to the lady and her family. However, we reminded the lady that as the Defendants had compromised her case for a seven figure sum, they had in effect admitted liability, but it was unfortunate that no one had the decency to apologise.
Contact us at Cantillons Solicitors at +353 (0)21 4275673 or [email protected] if you would like more information.
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