The Supreme Court has been asked to urgently hear an appeal against the High Court judgment in the case of Limerick woman, Ruth Morrissey, who is terminally ill with cervical cancer.
Lawyers for the Health Service Executive and two laboratories told the Supreme Court that the High Court judgment has far-reaching consequences for cancer screening services and medical diagnosis generally as well as for the CervicalCheck tribunal and other litigation relating to cervical cancer.
The HSE and the laboratories - Quest Diagnostics and MedLab Pathology - want their appeals against aspects of the judgment to bypass the Court of Appeal and to be heard directly by the Supreme Court.
At the core of the appeals is the High Court's finding that screeners should have "absolute confidence" that a smear test has no abnormalities and that the slide is adequate before passing it as clear.
Ruth Morrissey was diagnosed with cervical cancer in 2014.
She was not told until May 2018 that a review carried out in 2014 showed smears taken under the CervicalCheck screening programme in 2009 and 2012 had been reported incorrectly.
Her cancer returned early last year and she now faces a terminal diagnosis. She and her husband were awarded €2.1m in damages by the High Court.
The Supreme Court was told the Government had confirmed this week to the Morrisseys that they would retain the damages irrespective of the outcome of the appeals.
Senior Counsel Pat Hanratty said the High Court's judgment caused "widespread confusion". He said the HSE was concerned that the "absolute confidence" test introduced an unnecessary embellishment which could affect other areas of medicine.
Michael Cush, representing Quest Diagnostics, said the High Court judge failed to appreciate evidence which meant such a standard was "unworkable and inappropriate" and is not actually applied in screening programmes.
He said this included evidence that an "undeniably excellent" English screening programme had a false negative rate of between 44-55%.
Lawyers for Mrs Morrissey and her husband, Paul, say the judgment does not have the consequences claimed by the other parties.
Senior Counsel Pat Tracey said there was widespread misunderstanding of the judgment of Mr Justice Cross which had not imposed a standard of absolute certainty but one of absolute confidence. He said Ireland had decided to send smear tests for screening in another jurisdiction, something not done by any other country.
Restoring liquid based cytology here would get to the kernel of screening concerns, he said. He also asked if there was no test of absolute confidence, "what was the test".
But he said it would be an "enormous relief" to the Morrisseys if the litigation was over and they would agree to an appeal to the Supreme Court confined to the issue of the standard of care.
Mr Tracey said wider issues should be heard before the Court of Appeal.
The three judges said they would decide shortly whether or not to hear the appeal. If it goes ahead in the Supreme Court, it will be heard in early November.