A health authority's costs in an appeal are more than the national cervical cancer research budget, writes Roger Pearson.
The recent Appeal Court refusal to clear health service chiefs in Kent of liability in respect of three women who were wrongly given the all-clear after undergoing cervical screening has sent ripples of concern throughout the health service.
East Kent Health Authority chiefs regard it as a "test case" and believe that the decision to uphold an earlier High Court ruling in favour of the women could damage the cervical screening programme by requiring inappropriately high standards of care by those responsible for primary screening.
They also claim that it will undermine the confidence of the public in the screening programme.
However, leading Kent solicitor, Sarah Harman, senior partner at Canterbury-based Harman & Harman, who acted for the women, believes the health authority has overreacted.
She thinks the authority is wrong to call the action a test case. She says: "We considered it to be a landmark case. The trust said it was a test case but there is an important difference.
"It was a landmark case because it is the first time cervical screening and the standards have come under the scrutiny of the courts.
"It revealed the lack of consensus between consultants and therefore the lack of consistency in standards throughout the country. It was a landmark to that extent, but it was not a test case because when you take a test case you have a lot of cases and then take several up.
"If you win they all win and if you lose they all lose. But all cervical smear cases have to be looked at individually because no smear is the same."
The recent decision centred on three women in their 30s who underwent smear tests between 1989 and 1992 at Kent and Canterbury Hospital and were reported "clear".
Kent and Canterbury Hospital has since been at the centre of a major inquiry in which around 90,000 smear tests were reviewed and this year the High Court found the health authority liable for failing to pick up abnormalities on the women's smear slides.
The three cases were the tip of a much larger litigation iceberg in which more than 100 women in east Kent have sought legal advice and 57 claims have already been settled by the authority.
As far as the three women are concerned the question of any damages has yet to be decided, but Harman expects the figures will be between £20,000 and £50,000.
"One of the important aspects of this case for claimant lawyers is that it confirms that judges are judges and they decide as a matter of fact issues where experts disagree.
"This was a good news case for claimants. I also think emphatically that it should never have come to court. There were five cases originally, not three. Two were settled about two weeks before the original High Court hearing and I think that if two were settled all five should have been settled.
"The cost of settling them would have been less than £100,000, against the legal costs in fighting them which are over half a million – more than the national budget for research into cervical cancer.
"There was also an element of real overreaction to the court of first instance with much being said that if this judgment was allowed to stand that women would be allowed to think that smear tests were 100 per cent effective.
"The women's motivation in bringing this action was not about compensation. It was a desire to know what went wrong and a desire to improve things for other women.
"That may sound altruistic but it is true."