Host Sean Harris talks with Florida attorney Sean Domnick about cervical cancer cases.

Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I’m your host Sean Harris. Our guest today is Sean Domnick with the firm of Domnick, Cunningham & Whalen out of Palm Beach Gardens, Florida and our topic today is medical malpractice and specifically cervical cancer cases. Sean Domnick thanks very much for joining us here on Civilly Speaking.

Sean Domnick: Happy to be here. Thanks for having me.

Sean: As a medical malpractice lawyer, tell us about cervical cancer and cases that you’ve been involved in.

Sean Domnick: Sure, happy to. About, gosh six years ago, a client walked into my office telling me about how his wife had passed away from cervical cancer. They had two young girls and they were trying to figure out how in the world this could have happened when she was having regular pap smears and they were coming back as being read normal, one as short as the month before she was diagnosed with cervical cancer. So we started digging into it and we got the slides from the lab, LabCorp, where these pap smears had been reviewed and we had them reviewed by our pathology experts and low and behold, not only had the slide a couple of months before she was diagnosed been misread as normal when actually it had shards of cancer on it. The slide from two years previously had been misread and the slide from two years previously had been misread at a time where everybody agreed that proper treatment would have saved her life.

Sean: It’s hard to believe. How could it be so clear to one set and not another? How’d that happen?

Sean Domnick: Well it’s a story as old as time, right? It’s corporations putting profits ahead of patients and what we learned during the course of that case and we’ve learned through other cases, is that they’re forcing the folks who read the slides, the cytotechnologists, to read to many slides in a day and they can’t possibly pick up the abnormalities on all of the slides and what I believe is that the industry is gambling that most women don’t have cervical cancer. Those that do have cervical cancer, it is slow growing. There is actually a precursor, non-cancerous lesion that then turns into cancer and becomes invasive. That takes a period of years. So they figure, oh if we miss it this year that’s okay, we’ll grab it in a couple years and everything’s good and nobodies the wiser.

Sean: Any sense on how many cases go misdiagnosed?

Sean Domnick: Well there are four thousand women a year that are dying from cervical cancer in the United States, about ten thousand new cases of cervical cancer that are diagnosed every year and I believe that for women who are getting regular pap smears that are interpreted as normal that are then diagnosed as having cervical cancer that the vast majority of them probably have a misread pap smear in the past. One of the things that insidious on top of what we’ve already talked about is when there is a diagnosis of a high grade, abnormal lesion or cancer, the lab is required to do what is called a five year look back. That is look at the last five years of slides to see whether or not the lab misread one, but what is the lab not required to do. If they find that they’ve misread one two, three, four years ago, they’re not required to tell the patient unless that will somehow affect the current treatment, which it never will because they’ve already been diagnosed with cancer. So they know that they missed it and they don’t tell the patient and they’re not required to.

Sean: I take it that’s discoverable?

Sean Domnick: It is, but they fight it and I mean we know how hard it is to get the truth from corporations. I’ve been working at the federal level with senators and congress people to try and see if we can’t get some laws that recognize what’s going on. It’s difficult in this environment.

Sean: Now, in the introduction we said you’re from Florida, but of course you practice all around the country, including here in Ohio. Have you been involved with cases here in Ohio?

Sean Domnick: I have. In fact I just finished two cases here in Columbus, both of them were against LabCorp. It is just coincidental that I had two cases that were here, but both of them were very sad cases. One woman who was in her late thirties, another in her mid forties, both leaving behind a husband and three children and you know, death by cancer, particularly cervical cancer is devastating on the family to watch their loved one go through that process.

Sean: I take it there aren’t signs or symptoms outwardly other than pap smear is the only diagnosis.

Sean Domnick: Yes, well pap smears gives you, is the front line test. If there are abnormalities on the pap smears then you go up to a pathologist then they go on and they do biopsies and some other testing that needs to be done. So it’s the front line that starts you down the path to getting the correct diagnosis, it’s there. Usually, when somebody has cancer, as it starts to progress you’ll see abnormal bleeding, other pain during intercourse things like that, but by the time those symptoms are showing up, you’ve already got the disease so that’s why getting these pap smears and getting them read properly in a timely basis is so important.

Sean: Now I understand from a legal perspective that one of your cases in Columbus involved the distinction between medical negligence and general negligence.

Sean Domnick: It did, it did.

Sean: Which is odd, in my mind I think well clearly this is medical negligence.

Sean Domnick: Right, but in Ohio you have a very strict statutory construction of what it is, that is a medical claim and what is not. It became important in our case because of statute of limitation issues and things like that as to whether or not it was a general negligence claim versus a medical negligence claim and both of the judges did address the issue, determined it was a general negligence claim.

Sean: Wow, that reading a pap smear is not in the practice of medicine.

Sean Domnick: Right, it’s not because the folks who read it are the cytotechnologists. They generally have a Biology degree and then some cytotechnology training that goes along with it, but they are not medical providers. In fact, in a lot of states and I don’t remember about Ohio, they’re not even required to be licensed.

Sean: My goodness, well not only statute of limitations, but in Ohio it’s a different cap.

Sean Domnick: Right, exactly, exactly.

Sean: That’s fascinating, I never would have guessed that.

Sean Domnick: Right, right so that became an important issue for us.

Sean: So, and I think you said earlier four thousand women are dying each year from this form of cancer, that’s as you say, largely preventable, what are we doing about this? How can we stop this?

Sean Domnick: The first way that we can stop it is, corporations aren’t going to change on their own. We know that, right? So what are the two ways that we can change them? We can either try and get it changed legislatively and have rules that are there to try and change this. I am working on it, but that’s a slow process sometimes. The litigation I think helps. If we force them enough times and juries say to them enough times that you need to change your behavior, then hopefully we’ll get changed behavior with regard to that and the other thing is women need to take control of their health care. Let me repeat that, women need to take control of their health care for far to long they’ve gotten the short end of the stick whether it’s been being given drugs that were tested on men and oh but we are going to go ahead and use them on women or whether it’s what’s happening here in the pap smear industry where they’re not thrown enough resources at the testing that needs to be done. Women need to know where it is that their slides are being sent off too. They need to talk, ask about the error rates and in my experience I find that hospital based pathology departments typically review far fewer slides in a day than the big box labs do. If it were me, I would say to my doctor let’s make sure we have this reviewed at a lab that isn’t reviewing too many slides in a day.

Sean: And when we are talking about kind of the greater societal timing, I mean here we are in the midst of the #MeToo movement, the women’s march, is when health and issues like this, I mean is it time for some kind of federal legislation?

Sean Domnick: Oh absolutely you know we’re working on that at the national level with the AAJ. I am running for parliamentarian for the AAJ this summer in Denver and one of the issues that I’ve been fighting on personally, in my practice, and globally in terms of with legislative change is these women’s issues, particularly women’s health issues. The time is right now for us to be heard about it. Women you know, we’ve marched, women have marched for a lot of things, I’d like to see march for healthcare rights.

Sean: And politics obviously can make strange bed fells but do you have sense of what the appetite for something like this in the Congress would be these days?

Sean Domnick: Right now I think that trying to get anything through Congress is very difficult and certainly between now and November, with the election coming up I don’t see anything like this that’s going to make movement through there but it doesn’t mean that we can’t be and we shouldn’t be laying the foundation with it. This is not a Democratic issue, it is not a Republican issue, it’s not even a woman’s issue, it is a human issue. When our spouses, when our mothers, when our sisters, when our daughters are dying needlessly, that affects all of us and we all need to stand up.

Sean: Sean Domnick thanks very much for joining us here on Civilly Speaking.

Sean Domnick: Thanks for having me.