A High Court judge today refused an application by a US laboratory to allow the removal of original markings made by technicians who screened cervical smear slides which are now at the centre of seven CervicalCheck actions.
Mr Justice Kevin Cross said Clinical Pathology Laboratories (CPL) had not established special circumstances to depart from the protocol which was set down during the landmark Ruth Morrissey case regarding cervical smear slides.
As part of the protocol it states that existing markings on the slide which were left there by the screener should not be removed without prior approval of the court.
CPL which has its HQ in Austin, Texas and was at the centre of the Vicky Phelan case is understood to be considering appealing the High Court decision.
Hindsight bias
Eugene Gleeson SC for CPL told the High Court the dates and the number of the slides where the markings were required to be removed had been handed into the court. Counsel said his side wanted to go back to the original screening conditions and to “eliminate hindsight bias.”
The removal of the markings the laboratory contends would allow a “blind review” of slides by experts.
Counsel said in another case there was a consent order to allow for the markings to be removed from the slides. The experts for the plaintiffs in the seven cases before the court he said could photograph the slides with the markings before removal.
Reconstruct the protocol
Patrick Treacy SC instructed by Cian O’Carroll solicitor for the plaintiffs in all seven actions said the laboratory wanted to remove the markings the screener had put on and CPL was trying to reconstruct what was agreed in the protocol.
He said it was “mildly irritating “ to have worked out a protocol for such cases and CPL could come in two years later “trying to rewrite the book’.
Counsel said the laboratory would have to show special circumstances to justify removing original evidence from the slides. “It is CPL is trying to create a new and novel practice,” Counsel said.
Refusing the CPL application in all seven cases, Mr Justice Cross said he did not think it was necessary to remove the markings to conduct a blind review.
Vicky Phelan, who had sued over a 2011 smear test taken under the national screening programme, settled her High Court action two years ago for €2.5 million.
The settlement, made without admission of liability, was against Clinical Pathology Laboratories Inc, Austin, Texas. She had also sued the HSE but the case against it was struck out.
