Court must consider whether expert’s testimony is reliable

The Georgia Court of Appeals has made it easier for people injured by a medical laboratory’s negligence to successfully sue the lab. In Lavelle v. Laboratory Corporation of America, Cathleen Lavelle had a pap smear in 2006 which a cytotechnologist (“cytotech”), a person trained to review human tissue samples under a microscope to determine the presence of cancer cells and other abnormalities, determined was normal. In fact, the pap smear was positive for cervical cancer from which Ms. Lavelle ultimately died. Her husband sued claiming that the cytotech breached the applicable standard of care when she failed to detect the cancer.

The plaintiff’s expert witness was a physician, a staff pathologist and professor of pathology oncology at Johns Hopkins with experience in the fields of cytotechnology and interpretive slides. The professor looked at the slide and said there was a blatant miss of the cancer. That type of review is called a focused review. The professor later did a “blind” study, but the trial court refused to allow the professor to testify that the cytotech breached the standard of care because the professor had not first performed the blind study. A blind study involves looking a multiple slides from different people without telling the examiner which slide belongs to the injured person.

The defense claimed that the only way an expert could form a reliable opinion was to perform a blinded review, which had long been advocated by Lab Corp. and other companies in the cytotech industry. Expert testimony must be reliable using professional studies or personal experience, and the defense argued that the only reliable method to determine whether the cytotech breached the standard of care when she misread the slide is to use a blind study. The Court of Appeals rejected this one size fits all requirement, holding that the trial court was required to “analyze the relevancy and reliability of [the expert’s] proffered opinion based upon focused reviews.

The holding by the Court of Appeals requires the trial court to re-examine the proffered testimony of the expert which included a review of the method that the expert did apply, not just the blind method advocated by the defense.

It will be interesting to see if the issues raised by the Court of Appeals in this case are re-examined after the trial court performs the necessary analysis.