The Pap Smear Case

A noted cytopathologist, Leopold Koss, has said that the use of the Pap smear should virtually eliminate the chances of a woman developing invasive cancer. Nevertheless, this year approximately 7,000 women will die of the disease-a disease that is largely preventable.

Presented with a potential client or claim where a woman has suffered invasive cancer, a presumptive claim exists. Presumably, a potential claim would never be presented to a lawyer if there had not been a physician supervising treatment for some period of time prior to the diagnosis of invasive cervical cancer being made.

Whether followed by a gynecologist or a family doctor, every woman is entitled to regular gynecologic examinations and Pap smears. Though there is some controversy as to how often Pap smears should be performed in sexually active women, all agree that annual Pap smears are required until a series of normal Pap smears suggests a lengthier interval before re-testing is justified.

Some family doctors obtain Pap smears themselves; others refer patients to gynecologists for that purpose. In an HMO environment, the referral to a gynecologist represents a cost, direct or otherwise, to the referring doctor’s practice.

If a primary care physician or gynecologist fails to recommend and obtain regular Pap smear evaluations with the required frequency (never less than one every 2 to 3 years and more often if risk factors are present), a claim may be made out on that basis alone.

More commonly, Pap smears are obtained with sufficient regularity but are improperly interpreted and reported upon by the cytology laboratory. The primary care giver ordering the smear may receive an appropriate report but fail to take appropriate action on the basis of the information provided.

The evaluation of a Pap smear case, therefore, requires that one obtain the slides for at least five years prior to the diagnosis of cancer having been made. Laboratories are only required by law to retain slides for five years. Once obtained, such slides must be reviewed by a highly competent cytopathologist. The cytopathologist who reviews the slides should be an expert who, if the slides provide a basis for a claim, is willing to testify. Never place or direct others to place Pap smear slides in the mail. They cannot be replaced.

It is naturally important to obtain from the primary care physician a full copy of the office records which will include the Pap smear requisitions submitted to the laboratory. The laboratory’s Pap smear reports should be requested from the laboratory or Hospital separately. This is important because often there are handwritten recommendations or notes on one copy of the report, which do not appear on the other. In addition, the requisition sent may contain different information, historical otherwise, from that contained in the report the laboratory issues.

It is also important to secure, even during the course of preliminary screening, the records of the hospital or physician’s office where biopsy confirmation was obtained. These specimen slides should be secured as well, as they will help verify the type of cancer and the extent of progression of disease.

One needs to consider carefully the magnitude of delay involved in a given claim. In general, delays of weeks to a few months will not be of significant consequence. There are circumstances, however, where even a delay of several months in a particularly aggressive cancer may materially change the outcome.

After records and slides have been examined, clinical issues concerning the conduct of the primary care provider are best evaluated by a gynecologic oncologist. Such an expert will not only be familiar with the standards of practice concerning the management of the patient’s gynecologic course but give immeasurable assistance in establishing causation.

The damages in Pap smear cases arise primarily out of the disease. Damages also include, however, injuries resulting from treatment more extensive than would have been required at an earlier time. For example, a hysterectomy is not required for a woman exhibiting carcinoma in situ only or less where continued fertility is important.

Cervical cancer is a devastating illness once it has taken hold. Therefore, even in those cases where the future prognosis after hysterectomy is good, the morbidity and mortality associated with possible recurrence can be remain an important element of damages.

More tragic still is the woman whose cervical cancer is diagnosed in an advanced stage where the probability of survival may be slim. Death from cervical cancer can take a very long time. This is especially true where the spread of the disease results in pelvic recurrences. Such patients live long-term on continuous intravenous narcotics.

Because in young women, in particular, cervical cancer can be a very aggressive disease, it is critical that reviews of potential claims be carried out as promptly as possible so that cases can be filed in time to preserve a client’s testimony. As in cases of advanced disease, a client will rarely survive long enough to ever give such testimony at trial.

In general, all abnormal Pap smears require a specific form of follow-up or treatment irrespective of the level of abnormality present. An excellent review of the current standards of practice with respect to the performance of Pap smears and the management of Pap smear abnormality is published by the American College of Obstetrics and Gynecology in their Practice Bulletin number 183. This bulletin and others regularly published by the College on various subjects of obstetrics and gynecology can be obtained from the American College of Obstetrics and Gynecology at 409 12th Street , SW, P. O. Box 96920, Washington, D.C. 20090-6920.

In addition, further references which may be helpful in the screening and preparation of a potential claim are listed below:

Meisels, Alexander; Morin, Carol.In Cytopathology of the Uterine Cervix, Philadelphia, American Society of Clinical Pathologists, 1990. Koss, Leopold. In Diagnostic Cytology and Its Histopathologic Bases, Philadelphia, J.B. Lippincott, 1992. Bibbo, Marluce. In Comprehensive Cytopathology, Philadelphia, W.B. Saunders, 1991. DiSaia, Philip J., Creasman, William T. In Clinical Gynecologic Oncology, Fifth Edition, St. Louis, Mosby, 1997. See soon, Meyers, J.I. , “The perspective of a plaintiff’s attorney in dissembling the art of medicine as it relates to the interpretation and management of cervical smears,” Pathology Patterns Reviews, Vol 116 (December 2001).

Also, visit the website of the National Library of Medicine.

All articles in this blog are the collaborative effort of attorneys Jerry Meyers, Brendan Lupetin, and Gregory Unatin.

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