Timothy Lavelle, the husband of a woman who died of cervical cancer in 2008, may get another chance to prove a LabCorp cytotechnologist was negligent in missing abnormal cells on his wife’s 2006 pap smear, according to the Georgia Court of Appeals.
The case was before the appellate court because the trial court granted (in part) the motions LabCorp filed during the discovery period to prevent three expert witnesses from testifying and for summary judgement (ending the case in LabCorp’s favor).
In his appeal, Mr. Lavelle took issue with three rulings from the trial court:
- The denial of a motion to compel further deposition of a witness;
- The grant of a motion excluding the testimony of an expert witness; and
- The grant of partial summary judgment in favor of LabCorp on the issue of breach of the standard of care.
In 2011, Lavelle deposed the LabCorp cytotechnologist alleged to have been negligent with his wife’s pap smear. Of note, in 2006, the cytotech reviewed 140 slides per day that were initially screened by a computer that would flag 22 fields for the cytotech to review.
During the deposition, Lavelle showed the cytotech photographs and quizzed her about whether the cells were atypical or not. The LabCorp attorney objected and told the cytotech to not answer the questions.
LabCorp objected because in real life the cytotech did not screen slides using photomicrographs, which make the cells appear different when viewed through a microscope. In addition, LabCorp argued there was no way to prove the cells she was being shown were the same ones the computer flagged back in 2006, and that the cytotech now had hindsight bias.
Lavelle asked the court to compel the cytotech to answer his questions, but for the reasons mentioned above, the court ruled no further deposition would be permitted.
The appellate court upheld the trial court’s ruling on this matter, citing the cytotech’s hindsight bias as well as the “significant differences between the witness’s original review of the slide and the review which Lavelle sought to elicit on her deposition.”