Two countries, two paths for cancer victims

By FIONA BARBER and FRANCESCA MOLD

More than most, Judy Thurman understands the human toll of misread cervical smears.

The Christchurch woman needed a hysterectomy - and had a pregnancy terminated to save her life - after abnormal cells were not picked up in two slides.

"I already had a two-year-old. He had to have a mother," said the 36-year-old, who fought invasive cancer and then mustered her strength to fight for answers.

But this tragedy did not have its origins in Gisborne or any other New Zealand centre.

It happened in England where she had been living in the early 90s.

Her battle for redress contrasts with the plight of Gisborne women, who because they live in a country with a no-fault ACC system cannot sue for compensation.

Victims can go to court for exemplary damages, which are designed to punish rather than compensate, but no one in New Zealand has ever won such damages from a health professional. Some cases, however, have been settled out of court.

The issue of compensation was raised at the Gisborne cervical cancer inquiry this week, when a lawyer representing affected women, Stuart Grieve, QC, urged the committee to recommend paying victims of misreading.

The inquiry head, Ailsa Duffy, QC, asked Mr Grieve why the Gisborne women should be treated differently from others who had suffered personal injury and were subject to the no-fault provisions.

He replied that significant responsibility for their plight lay at the feet of the Government and the Ministry of Health.

"These women were entitled to place their confidence in the screening programme and all associated procedures," he said.

"If that has let them down, then the Government should be prepared to make an ex-gratia payment to them.

"Given the level of Government responsibility for what has happened and the extent of the suffering, common justice requires the Government to pay compensation for that."

Mr Grieve cited an example in Australia where a woman who had a single smear misread was awarded $750,000.

In Judy Thurman's case, invasive cancer was picked up after her return to New Zealand in 1991. Her English smear tests, which had been reported as clear, were rechecked and mistakes found in the diagnoses.

With no ACC-style system preventing her from taking legal action against English officialdom, she filed her case in the High Court in London in 1994.

Three years later, she was awarded $142,000 in damages.

The Wiltshire and Bath Health Authority had already admitted liability over her treatment in 1988 and 1991, and the dispute was over the amount of money to be awarded.

According to a report in the Daily Telegraph, the judge said: "If ever a case demonstrated the inadequacy of money to compensate for loss, this must be it."

Judy Thurman lived with the threat of a recurrence of cancer, with her family incomplete and with the knowledge that she could develop further illnesses because of her radiation treatment.

The judgment left open the possibility of further damages if cancer returned or if secondary effects of radiation such as osteoporosis materialised.

During the Gisborne inquiry this week, Mr Grieve said that the woman who sparked a ministerial inquiry into cervical smear misreading could have walked away with at least $1 million compensation if she had lived in Australia.

The woman, known to Weekend Herald readers as Jane, would have been received between $1 million and $2 million in compensation for the misreading of several cervical slides.

But she had instead incurred more than $100,000 in legal bills by pursuing a High Court case for exemplary damages against former Gisborne pathologist Dr Michael Bottrill.

The majority of the work had been covered by legal aid, but she might later have to repay that money.

Giving evidence to the inquiry panel in April, Jane said the overall cost of legal action and other expenses, including lost income, medical and transport costs and toll bills, was more than $200,000.

Mr Grieve said that in most of the Gisborne women's cases, very little if any compensation had been paid despite their being entitled to ACC.

Ms Duffy questioned Mr Grieve about how the inquiry could ensure that concerns such as those Jane raised could be brought to light without having to resort to expensive legal action, saying it was a lot to expect people to take the issue to court.

Mr Grieve said the threat of litigation would encourage medical practitioners to ensure better standards of care.

In the end, two New Zealand women - who fought for their lives against invasive cervical cancer and then turned their energies to finding out why signs of the disease had gone unchecked - travelled very different paths because they lived in different countries.

Judy Thurman, who has now been clear of the disease for eight years, was paid compensation and has a door to the English justice system left open for further redress should her health fail.

This survivor cites one of her greatest moments as taking her son to school for the first day.

Jane knocked at the doors of ACC, the Medical Practitioners Disciplinary Tribunal and the High Court before a ministerial inquiry was ordered into the practices of Dr Bottrill and the health system that paid him. Her application for a retrial has since been granted.

ACC partly reimbursed Jane for lost wages during her time of illness - 80 per cent of her previous year's pay, which included part-time work and was less than she was earning at the time.

She receives an $ independence allowance of $60 a week and some of her medical bills are picked up. She still has complications from the radical hysterectomy she needed to save her life.

In February, Jane passed a milestone - five years clear of the disease that has changed her life irrevocably. She took the day off work and had a "pamper day."

It was, reasoned the mother of three, cause for celebration.

Herald Online feature: Gisborne Cancer Inquiry

Official website of the Inquiry