From top: Ruth Morrissey, barrister Aisling Mulligan

This morning.

On RTÉ’s Morning Ireland with Audrey Carville.

Barrister Aisling Mulligan, who specialises in medical cases, spoke to Ms Carville about the State Claims Agency’s appeal in relation to the High Court case of Ruth Morrissey.

Ruth and her husband Paul Morrissey were awarded €2.1million damages last month over the misreading of smear tests and the failure to tell her about it.

Ms Morrissey claimed that if her smear tests in 2009 and 2012 had been correctly reported, she could have been successfully treated and not developed terminal cancer.

When the judgment was granted, Judge Kevin Cross said Ms Morrissey’s life had been ruined.

He also said that medical laboratory screeners should have “absolute confidence” that there are no abnormalities in a test slide before giving a test the all-clear.

The term “absolute confidence” was also used by Mr Justice John Peppet in an English Court of Appeal judgment called Penney Palmer & Canon in 1999.

The State Claims Agency has said it is appealing the judgment and focussing on “a number of important legal points that may have significant implications for the State” but not the award of €2.1million to the couple.

On Morning Ireland, Ms Mulligan told Ms Carville that Judge Cross’s judgment contains almost 200 paragraphs and is an extremely detailed judgment.

She pointed out that, in paragraph of 15 of the judgment, he says that no testing is infallible.

Ms Mulligan said:

“He goes on to use the really practical example that we found in Mrs Morrissey’s case where, in 2014, she was diagnosed with cancer while receiving treatment but actually one of her screenings came back as negative.

“So that’s one of the practical examples that nobody asserted that there was negligence even though there was an outcome that was in fact incorrect.

“And that’s a really important thing for the general public to realise, that while the sentence ‘absolute confidence’ seems to be causing people an awful lot of concern; that this is going to close off the concept of cervical screening and, indeed, other screening.

“It’s very clear that, within the judgment and within the case itself, that there was an acknowledgement that there is always an aspect of limitation from the use of cervical screening.”

Ms Mulligan went on to say:

“The test of ‘absolute confidence’ is I suppose it finds its basis in Penney, in theory, but in reality what Judge Cross has identified in his judgment is: what do the medical practitioners set as their test for their standard of care?

“And it appears to me, at least, having looked at what he has determined as facts, is that there were five different witnesses who accepted that absolute [confidence] was the test that the medical professionals…was what was required of the appropriately qualified medical practitioner.

“And what follows from that argument is that it’s not absolute confidence that you do have cancer, it is absolute confidence that, if there is something on the screen, that it’s followed up on, that it is escalated.

“And that is the extent to which the test applies.

“….so if there is a grey area, if there is room for uncertainty, the question that the reasonable practitioner has to ask themselves is: am I certain that there’s nothing there?

“If the answer to that is ‘no’, I should refer on.”

Ms Carville asked Ms Mulligan if screening suffered as a consequence of the Penney judgment in the UK. 

She said:

“I’m a lawyer and I’m not a healthcare expert so I would be careful not to draw, not to extrapolate too much but one of the comments that has been identified is that there were different problems in Penney and I think that’s probably true.

“There was a different factual nexus in Penney to what we have in Mrs Morrissey’s case. The relevance of that, I suppose, is whether or not it closed off screening in the UK.

“Respectfully, it hasn’t, the result hasn’t occurred.

“Whether it will happen here is a question that will have to be seen in reality.

“But the purpose of this judgment is to reinforce…the certainty that people have in cervical screening.”

In reference to the State Claims Agency that the appeal won’t affect Ms Morrissey’s award of €2.1million, Ms Mulligan said she’s not sure if the sum can be ringfenced before adding:

“There have been circumstances where appeals have gone over to superior courts on technical points after the other side have been, after the applicant, who has won their case, has been allowed to continue.

“I’ve not seen it on a financial basis. So it depends on two-fold: what are the State appealing, which we’re not clear on at this stage.

“What are the second and third defendants [two labs] appealing, which we’re not clear on, at this stage.

“And then the second question is: what will Mrs Morrissey’s position be.

“If the State were to indemnify, for example, Mrs Morrissey, that may result in a different, it may make it easier for the case to go forward on, I suppose, a point of public importance.

“But I have seen examples of where it has happened but not one where the issue of quantum or the issue of payout or compensation or financial settlement has been determined.

“I’m not familiar with one so we’re sort of in uncharted territory respectfully.”

Listen back in full here

Yesterday: State Appeal