Morrissey v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 03 May 2019
• Neutral Citation: [2019] IEHC 268
• Court: High Court
• Docket Number: [2018 No. 4309 P.]
• Date: 03 May 2019

BETWEEN

RUTH MORRISSEY

AND

PAUL MORRISSEY

PLAINTIFFS

AND

HEALTH SERVICE EXECUTIVE, QUEST DIAGNOSTIC INCORPORATED

AND

MEDLAB PATHOLOGY LIMITED

DEFENDANTS

[2019] IEHC 268

[2018 No. 4309 P.]

THE HIGH COURT

Negligence – Breach of duty – Breaches of constitutional rights – Plaintiffs seeking damages for negligence, breach of duty and breaches of constitutional rights and/or European Convention Rights – Whether the defendants were negligent and in breach of duty

Facts: The claim of the plaintiffs, Mr and Mrs Morrissey, was for negligence and breach of duty against the defendants, the Health Service Executive, Quest Diagnostic Incorporated and Medlab Pathology Limited, and for breaches of constitutional rights and/or European Convention Rights arising out of the alleged failure of the defendants to correctly report upon two cervical smear tests. The first test was carried out by the second defendant in August 2009 in the United States of America and the second test was carried out in August 2012 by the third defendant in Ireland. The plaintiffs also claimed exemplary damages.

Held by Cross J that the defendants were negligent and in breach of duty in relation to the reading of the August 2009 smear test. In relation to the August 2012 tests, Cross J held that the defendants were negligent or in breach of duty, as defined by the principles in Dunne (an infant) v National Maternity Hospital [1989] IR 91, in failing to have the slide properly tested for adequacy. Cross J held that a fundamental difficulty for the plaintiffs in maintaining a claim of damages for breach of constitutional rights and/or European Convention Rights was that the rights complained of were fundamentally the tort and breach of duty rights that the plaintiff complained of in the main body of the proceedings and for which they were entitled to be compensated. Cross J held that the plaintiffs did not suffer any additional personal injuries due to the failure to advise the plaintiffs of the results of the audits on the slides. Cross J held that it was right and just to separately record a finding of damages, even if only nominal damages, against the first defendant for its admitted breach in failing to advise the plaintiff in relation to the results of the audit. Cross J held that Mr Morrissey was not entitled to maintain a claim for his personal injuries apart from naturally the issues that were compensatable under the heading of general damages for loss of consortium. Cross J did not find that the actions of the other defendants were grounds to hold that they should be punished or that their self-serving conduct was necessarily egregious. Therefore, Cross J held that the plaintiffs were not entitled to succeed in their claims for exemplary damages.

Cross J held that the first plaintiff was entitled to: damages in respect of failure by first defendant in relation to the audit €10,000; as against all defendants: general damages €500,000; miscellaneous special damages (agreed) €12,508; cost of home adaption (agreed) €70,000; occupational therapy (agreed) €55,000; loss of earnings for life €50,000; care costs €60,000; total to first plaintiff €747,508; +€10,000; total €757,508. Cross J held that the second plaintiff was entitled to: general damages for loss of consortium €60,000; loss of first plaintiff’s income €600,000; loss of pensions, company care and share options €150,000; cost of care for the plaintiffs’ child €500,000; cost of domestic assistance €75,000; retrospective costs and bereavement counselling €20,000; total €1,405,000; damages to the first plaintiff +€757,508; grand total €2,162,508. Cross J assessed that sum as being fair and reasonable in all the circumstances. Cross J held that: (a) the first plaintiff was entitled to a decree in the sum of €10,000 against the first defendant in respect of the failure to report the audit results; (b) the first plaintiff was entitled to a decree in sum of €747,508 against the defendants jointly and severally; (c) the second plaintiff was entitled to a decree in the sum of €1,405,000 against the defendants jointly and severally. Cross J held that the Health Service Executive was entitled to an indemnity against the second and third defendants in respect of the entirety of the plaintiff’s claims save the sum of €10,000.

Reliefs granted.

JUDGMENT of Mr. Justice Cross delivered on the 3rd day of May, 2019

1 The plaintiffs are husband and wife who have one child, Libby, aged seven and a half years. The plaintiffs” claim is for negligence and breach of duty against all three defendants and also they claim for breaches of Constitutional Rights and/or European Convention Rights arising out of the alleged failure of the defendants to correctly report upon two cervical smear tests. The first test was carried out by the second named defendant in August 2009 in the United States of America and the second test was carried out in August 2012 by the third named defendants in Ireland. The plaintiffs also claim exemplary damages.

2 Cervical cancer is a serious cancer affecting women, which if detected before it develops or indeed at the early stage of its development, can be easily and successful treated. However, if its detection is not until the cancer has significantly developed, the outlook is very poor.

3 As a result of the need to have early detection, the first named defendant, under the title of Cervical Check, organised free cervical tests for women of a certain age. Samples are taken by a patient's GP using a system known as Liquid Based Cytology which is a relatively new system and less invasive than taking a smear by scraping cells. These tests are regularly repeated depending on the age of the patient. In the first named plaintiff's case, the test were required to be regularly repeated every three years. The first named defendant originally used Irish laboratories but since 2008 when Cervical Check commenced its national screening policy, they contracted out the testing of the samples to various multinational firms, including those of the second named defendant, Quest Diagnostic Incorporated (Quest) and later, the third named defendants, Medlab Pathology Limited (Medlab). The contracts provide that the tests are to be carried out in accordance with the Bethesda System using the Cervical Check Quality Assurance Guidelines and the Guidelines to Smear Tests.

4 The reason the first named defendant contracted out the vast majority of its tests to the multinational firms was, I accept, that the Irish laboratories could not provide as fast a service as offered by the multinational firms. This ‘ contracting out’ did, however, result in opposition from the Irish laboratories who voiced concerns about difficulties in supervisions and failures of regulation in the amalgamation of allegedly looser American standards of testing with the Irish recall period for screens of three years as opposed to the American standard which used to require a recall every year. Also, Dr. G. who had previously been in charge of the screening laboratory in St. Luke's Hospital pointed out as of concern the fact that the United States laboratories had an apparently looser sensitivity than the Irish laboratories in that the laboratories in America reported only 1.4% tests as non-normal compared to 2.4% as reported in Irish laboratories.

5 The contract between the first named defendant and the second named defendant often involves testing in laboratories in the United States. The plaintiff's test in 2009, was undertaken by the second named defendant in one of their laboratories situated in Grand Rapids. This laboratory was not scheduled under the contract with the first named defendants and accordingly, was not subject to any realistic audit or inspection by the first named defendants. The reason for the second named defendant conducting some of its smear testing in laboratories not referred to under the contract was, according to the second named defendant, that they were under pressure as the number of Irish smears increased and at the same time they had a spare capacity in other non-scheduled laboratories. I am satisfied that conducting these tests outside scheduled laboratories by Quest was unknown to Cervical Check at the time of the plaintiff's tests and that the second named defendant were not authorised under their contract to utilise any non-scheduled laboratory. The test in 2012 was carried out by the third named defendant in one of its laboratory's situated in Co. Dublin.

6 Smear tests are not tests for cancer but to determine whether the cells tested are healthy or alarming. When cells are found not to be healthy the fear is that they have been contaminated by the HPV virus which in certain circumstances can lead (in the case of cells from the cervix) to cervical cancer. The HPV virus is present in most adults usually without any consequences. In the majority of cases, the virus is shed due to the normal immune response. A small number of women, however, will continue to harbour the virus of which there are 120 different types and two of these types, 16 and 18, are responsible for over 70% of cervical cancers. Should the body continue to carry high risk HPV after some two to three years, a premalignant Cervical Intraepithelial Neoplasia (CIN) will develop. The pre-cancer may be high grade or low grade. If the pre-cancer is low grade, it may regress but a significant number of high grade lesions will progress if not detected and treated and develop into an invasive cancer. The invasive cancers are typically either squamous cell tumours or glandular cell and tumours. I also accept the evidence of Prof. S. that CIN, or pre-cancer will normally progress to invasive cancer over a eight to twelve year period of time on average, approximately ten years.

7 I accept the evidence of Dr. McC, called by the plaintiff, that the tests are not diagnostic and reject any...