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HSE and two laboratories lose Supreme Court appeal against Ruth Morrissey

The Supreme Court case had grappled with the complicated issue of whether “absolute confidence” was needed in a screening programme.

CERVICALCHECK CAMPAIGNER RUTH Morrissey has won her case against the HSE and two laboratories that examined her cervical smear tests. 

In May, the High Court awarded the Limerick woman and her husband Paul €2.1 million in damages.

In that case, the judge found that Quest Diagnostics, the company whose Michigan lab examined Morrissey’s cervical smear in August 2009, were negligent and in breach of duty.

The High Court ruling also found that the Medlab Pathology, which runs the Dublin lab that handled Morrissey’s 2012 slide, failed to ensure the smear sample was adequate for testing before examining it.

The HSE was found liable on the basis of being “vicariously responsible” for the actions of the laboratories, and also on the basis of having “a non-delegable duty” to the patients who availed of CervicalCheck, meaning the HSE must be taken to have accepted
responsibility for the non-negligent delivery of that smear service.

The judgement added that laboratories should have “absolute confidence” in their decision if they are to give a slide the all-clear.

This judgement was appealed by the two laboratories and the HSE – the judgement today shows that they were unsuccessful in their appeal.

The State Claims Agency had clarified that it hadn’t sought the to challenge the awarded €2.1 million, but instead sought clarity on the liability of the HSE for the actions of laboratories, and the “absolute confidence” required of screening programmes – medical professionals had argued that this wasn’t possible to offer. 

In the Supreme Court ruling today, Chief Justice Frank Clarke acknowledged that “the use of the term ‘absolute confidence’ may have created more confusion than clarity”.

He added: “However, it is clear that all of the relevant witnesses agreed that 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.”

He said that although the High Court judgement had “fallen short of the standard required to survive a successful appeal”, he concluded that “the grounds of appeal put forward under this heading by, respectively, Quest and Medlab must fail”.

Chief Justice Clarke said that “the High Court judge was incorrect to hold that the HSE were vicariously liable for the negligent acts of the laboratories”.

However, having analysed the law in the evolving area of non-delegable duty, I express the opinion that the HSE did, in all the circumstances of this case, have such a duty in respect of patients availing of CervicalCheck. On that more limited basis than the one adopted by the High Court, I would dismiss that aspect of the HSE’s appeal which suggested that it should not be fixed with any liability in respect of negligence established against the laboratories.

Ruth Morrissey was diagnosed with cervical cancer in 2014. After recovering initially, her cancer returned in 2018 and is now terminal.

The HSE was ordered to award damages to Morrissey for not notifying her of the results of audits of her 2009 and 2014 smear tests – which is the crux of the CervicalCheck controversy affecting over 221 other women. 

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