The smear test controversy is the latest health care scandal to affect women in Ireland. It seems doubtful that this issue would ever have become public without the decision taken by Vicki Phelan to seek redress through the Courts and her refusal to sign the confidentiality agreement requested by the laboratory involved.
Reports have indicated that as many as 1500 women may be affected by this scandal however there can be no certainty in that regard as it seems that significant reexamination of test results is still required.
The facts which are known at this time are stark;
- 208 women have been identified whose smear test gave a false negative result.
- 17 of those women have died
- Only 2 of those who died were informed of the misdiagnosis prior to their death.
Media reports have indicated that there are a number of cases presently pending before the Courts arising from the errors which have occurred and that there have been nine other cases already taken against either the HSE or the testing laboratories involved in the process.
It is by no means certain that the errors in the testing procedure will give rise to successful medical negligence cases. In order to establish medical negligence, it needs to be determined that a reasonable medical practitioner diagnosing the results would have determined that abnormal cells were present.
Clearly further audits need to be carried to assess the level of error which has occurred but regardless of that fact , it is shocking that in most cases a decision was taken not to inform women or next of kin of those who unfortunately passed away, of the results of the audit. As recently as 2014, audit results were being used solely for education and training purposes. In 2015 the HSE made a decision that the results should be passed on to the relevant medical practitioners involved who could then pass these results on to their patients “as appropriate”. It seems that a circular issued from Cervical Check to medical practitioners that indicated as a “general rule of thumb” women should be told about the tests but that the practitioners should use their judgement in selected cases where it is clear that discussions of the outcomes of the review could do more harm than good.
The Phelan case confirmed this, clearing showing that there was ongoing contention between the Clinical Director of Cervical Check and the Plaintiffs gynecologist regarding who should inform her of the fact that reviews had demonstrated her smear tests were incorrect. Cervical Check confirmed that in their view “a balance needs to be struck in deciding who needs a formal communication of the outcome of the audit”.It seems clear that both Cervical Check and HSE saw fit to unilaterally decide upon the criteria which should be relied upon and the appropriateness of disclosing crucial healthcare information to those women involved .By any objective measure it seems indefensible and entirely unacceptable that no immediate decision was made to immediately inform these women of the audit results.
With one eye on the litigation in being and that likely to follow the Government has now somewhat predictably loosely referenced the possibility of a redress scheme. While a scheme of redress certainly canot be dismissed, such schemes have not in the past , such as in the case of the victims of symphysiotomy , always addressed the issue to the satisfaction of those involved. Needless to say the issue of a redress scheme is altogether too late for the women that have already died and those they have left behind.
If you feel that you have been affected by the Cervical Cancer scandal please and feel is may be of assistance to speak with us please contact Seamas Turner or Anne McShane for legal advice.