A 73-year-old woman described as being on her death bed with cervical cancer has pleaded with the HSE to enter direct mediation talks with her before her High Court action which is due to begin next week.
Joan Lucey, Cooleen, Dingle, Co Kerry has sued the HSE, Clinical Pathology Laboratories Incorporated (CPL)with headquarters in Austin, Texas, USA and MedLab Pathology Ltd with registered offices at Sandyford Business Park, Dublin over the alleged misreading, misinterpretation or misreporting of her cervial smear tests taken in February 2011 and August 2011.
Lawyers for Joan Lucey, who is terminally ill, say she is only being offered "hollow sympathy" from the HSE.
They told the court the HSE will not take up an invitation to direct mediation until other legal issues are resolved.
Mr Justice Kevin Cross urged mediation to take place in the case of the retired nurse who has sued the HSE and two laboratories.
She was diagnosed with cervical cancer in 2019 after up to nine smear tests in the previous eight years were reported as negative. Her High Court action relates to two cervical smear tests she had in 2011.
The judge said the parties should take instructions at the highest level to see if the case can be resolved through mediation before it goes ahead next week.
She went public with her plight last week as fears grow a large part of her case may die with her. The court heard today that a mediator is on standby.
Mrs Lucey's lawyers said she is on her death bed and it was very difficult to explain to her why the HSE won't accept the invitation to sit down with her legal team and mediate the case next Tuesday.
The HSE wants the other parties at the table as well, the court was told.
Her barrister Oonah McCrann said it was "simply cruel and incomprehensible", adding that Mrs Lucey "needs to know whether the case is going to mediation next Tuesday or does she have to face a trial".
The court has previously heard the laboratories are baulking at engaging in mediation until a third party issue has been resolved.
Ms McCrann pointed out today Mrs Lucey's legal team has written to the HSE and the laboratories involved seeking confirmation that Mrs Lucey's claim for general damages would survive her if she dies before the conclusion of her case.
Counsel said the HSE will only agree to give the confirmation if the other parties also agree.
Mr Justice Kevin Cross put the case in for mention before the court tomorrow to see if the matter can be progressed.
In February 2011, Mrs Lucey had a smear test which it is claimed was tested by CPL under the supervision of MedLab and this came back as negative with a recommendation for the repeat smear in six months.
It is also claimed that Mrs Lucey was referred to the Scotia Clinic, Tralee, Co Kerry on 29 April 2011 where a swab came back as negative and she was advised she was HPV negative.
In August 2011 it is claimed Mrs Lucey had a repeat smear which was tested by the CPL under the supervision of MedLab and was reported as negative with a repeat smear recommended in a year.
For the subsequent seven years Mrs Lucey had annual smear tests taken by her GP all of which were reported as negative .
She also had a smear test and a HPV test in October 2018 which were reported as negative in May 2019.
After that, Mrs Lucey got a letter from CervicalCheck advising that she had completed her cervical screening .
In December 2018, Mrs Lucey began to suffer from fatigue and developed lower back pain in May 2019. She was later admitted to hospital for investigations and an MRI scan showed cervical cancer.
It is claimed that notwithstanding undergoing regular smear tests as advised, cytological cell changes in Mrs Lucey were allegedly allowed to develop and spread unidentified, unmonitored and untreated until she was diagnosed with cervical cancer in July 2019.
All the claims are denied.
Clinical Pathology Laboratories (CPL) has also joined as a third party in the proceedings consultant obstetrician Dr Mary McCaffrey of The Scotia Clinic, Tralee , Co Kerry.
CPL has claimed there was an alleged failure to assess or investigate Mrs Lucey when she attended the clinic on 29 April 2011 and it is claimed it resulted in an alleged missed opportunity to diagnose pre invasive disease.
The claims are denied.