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Healthcare | Legal

Medical negligence in Ireland | a surge in cancer screening litigation 

1 Nov 2018, by Amy Sarcevic

Two names that are known to everyone in Ireland are those of Vicky Phelan and Emma MhicMhathúna.

In April 2018, Ms. Phelan, terminally ill with cervical cancer, brought forward a case before the High Court in Ireland; shortly followed by Ms. MhicMhathúna, who is now deceased as a result of the disease.

Ms. Phelan, a mother of two, and Ms. MhicMhathúna, a mother of five, had been told that their smear tests, undertaken years earlier as part of the CervicalCheck program, were not a cause for concern.

A subsequent audit and review of their tests, however, revealed a different result. The tests of both women were not, as initially suggested, clear of abnormalities.

Had the cancerous cells been detected and reported in the initial test, the disease may not have become terminal.

In the case of Ms. Phelan, a simple procedure performed at the time could have given her a 90 percent chance of survival, her Solicitor argued.

Earlier this year, their cases were settled. Ms. Phelan received 2.5 million euros ($4 million AUD); and Ms. MhicMhathúna 7.5 million euros ($12 million AUD).

The cases attracted attention from the Health Minister, who prompted a scoping inquiry, led by Professor Gabriel Scally.

Professor Scally determined in his review that “the problems uncovered are redolent of a whole-system failure”, and noted “there was a demonstrable deficit of clear governance and reporting lines between” [the CervicalCheck program, the National Screening Service and higher management structures].

The cases have dominated headlines in Ireland for a number of years, particularly this month following Ms. MhicMhathúna’s passing.

In the wake of the litigations, Informa’s 28th Annual Medico Legal Conference – 6-7 March 2019, Sydney will hear from Eamon Harrington, a Partner at Irish firm, Comyn Kelleher Tobin, who acted for one of the defendants in the litigation.

Mr. Harrington will detail the cases with a focus on how all parties set out their differing positions; the allegations of deliberate withholding of information; defences to the allegations; the pressure to develop alternative dispute mechanisms; and the impact of changes to the discount rate / real rate of return.

Learn more and register.

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