Mother-of-two sues HSE for alleged cervical cancer diagnosis delay

Vicky Phelan leaving the High Court in Dublin today after the first day of the hearing. (Pic: CourtPix.)

By Ann O'Loughlin

A 43-year old mother of two who has terminal cervical cancer has launched a High Court action after it emerged her smear test seven years ago which showed no abnormalities was later in a review found to be incorrect.

Vicky Phelan's counsel told the High Court yesterday if her cervical cancer had been detected in 2011 when she had that smear test the young mother could have had a simple procedure and there was a 90% chance she could have been cured.

Jeremy Maher SC said experts on the Phelan side will say she would not have developed invasive cancer and would have survived into her 80s, but she will die by the end of the year

"Tragically her prognosis is twelve months. On January 29 this year Ms Phelan was given between six months and twelve months to live," Counsel told Mr Justice Kevin Cross.

He added:" She should have another forty years to look forward to but she has a couple of months."

But he said the mother who has recently started on new drug has not given up and is hoping to be accepted on to a US programme offer radical innovative treatment.

In the action by Ms Phelan and her husband Jim there is also a claim for aggravated and exemplary damages over the alleged failure to tell Ms Phelan for three years that a review of her 2011 smear test showed the original result of no abnormalities was incorrect.

University educational manager Vicky Phelan, of Carrigeen, Annacotty, Co Limerick along with her husband Jim Phelan has sued the HSE and Clinical Pathology Laboratories Inc of Austin, Texas in the US over a smear test taken under the National Cervical Screening Programme CervicalCheck and analysed in the US laboratory.

The smear test of May 24, 2011, showed no abnormality was detected and Ms Phelan was advised by letter in June 2011 the smear test detected no abnormalities.

She had another smear test in June 2014 and when it was sent off for analysis it showed a high-grade lesion and Ms Phelan was referred to a consultant. In July of that year, Ms Phelan was diagnosed with cervical cancer and underwent radical chemoradiotherapy.

It is claimed that subsequent to her cancer diagnosis and unknown to her a review was carried out of previous smear tests from women who had a cancer diagnosis. A review of the May 2011 sample from Ms Phelan showed the original report in relation to the smear was incorrect and the smear test showed suspected cancerous cells.

In September 2017, Ms Phelan was advised of the review and in November she was diagnosed with an incurable Stage 4 cancer and was given a life expectancy of between six and twelve months.

It is claimed the alleged failure to diagnose the 2011 smear test sample caused a situation whereby Ms Phelan's cancer was allowed to develop and spread unidentified, unmonitored and untreated until she was diagnosed with cancer in July 2014.

It is further claimed she was deprived of the opportunity of timely and effective investigation and management of her condition and deprived of the opportunity of treatment at a time when her disease was amenable to curative treatment.

The claims are denied.

Opening the case Jeremy Maher SC for the Phelans said an expert on their side will say there were plentiful abnormal cells in the 2011 smear sample and the failure to identify them allegedly amounted to a clear breach of duty.Counsel said Vicky Phelan was reassured when she was told there were no abnormalities and she would not need a check for another three years.

In 2014 Ms Phielan was called for a smear test but Counsel said it was very bad news. and she was referred to a consultant for what counsel described as a series of invasive treatments.

She generally felt well in 2015 and 2016 but reattended in September 2017 for a CT scan and Counsel said at this stage she was told of an audit of cervical smears from 2011 which was carried out in 2014.

"For the first time she was made aware the smear test report of 2011 was incorrect and in fact, it was an incorrect result," Mr Maher said.

The case before Mr Justice Kevin Cross continues.

Limerick mum tells of cancer battle

Mother of two Vicky Phelan who is dying of cancer yesterday told the High Court she hopes she will be accepted into a US programme offering ground breaking treatment.

The 43-year-old mum who has already raised €200,000 through a GoFund Me page is hoping that she will get a place on the treatment programme.

Vicky was given the tragic news last January that without palliative chemotherapy she has just six months to live and with the chemotherapy about twelve months.

She told the High court she had already previously been through 28 sessions of radiotherapy for her cervical cancer and it was very hard for her and her family particularly her children Amelia (12 ) and Darragh(7).

I had 28 sessions of radiation to the pelvis, I was in a lot of pain. They told me the chance of it recurring were very high.I always knew it would come back I was very worried. It is very hard to live with that", she told Mr Justice Kevin Cross cross.

She said at a meeting with a consultant last January the consultant was very blunt and told her to put her affairs in order.

“ I got no hope I was told to go home and get my affairs in order and that all they could offer was palliative care. She said she was by herself at the time."

She has opted not to have palliative chemotherapy.

“The side effects are awful. I was lucky first time around I didn’t lose my hair Hair is very important to my son in particular,’ she said as she broke down in tears.

She told how she sought a second opinion and asked about a new type of drug which she started just last week.

“ With this drug, I am getting more time, but not cured," she said.

She is also hoping to travel the US for innovative groundbreaking treatment which is successful could potentially cure her cancer. The treatment travel and time spent in the US will cost in the region of $400,000. She said it was her intention if she won damages in the High Court to repay the donations already made in the Go Fund Me page.

She said she was not aware for three years of the 2014 review of her smear test from 2011 which showed the result of no abnormalities was incorrect and said her first reaction was "cover-up".

"I found out about it in September 2017.I was in shock when I was told. I am angry, extremely angry. If I was diagnosed I probably would have had to have a procedure and at worsen a hysterectomy." she said.

She added: " If I was told sooner I would not be in a position of a terminal cancer diagnosis."



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