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Allegheny County Court of Common Pleas Limits Scope of “Hindsight” Testimony

In McLane v. Valley Medical Facilities, Inc., et al., Judge R. Stanton Wettick, Jr. denied plaintiffs' motion to compel defendant cytotechnologists to testify regarding their present review of slides which they reviewed in 2003-2005.

Plaintiff-wife was diagnosed with cervical cancer in early 2006. Plaintiff alleges that defendants improperly interpreted pap smears in 2003, 2004, 2005.

At her deposition, cytotechnologist, Terry Bathory testified as to how she would screen and interpret slides and that she had in fact interpreted plaintiffs slide in 2004. Plaintiffs’ attorney then sought to have Bathory sit at a microscope and view the area of the slide that she had screened in 2004 and answer questions regarding it. Plaintiffs sought to question her regarding her customary practice in 2004 and whether having seen this particular grouping of cells would she find it suspicious enough to send it along to the pathologist. The defense objected. Plaintiffs filed this motion to compel.

The Judge held, "I am not requiring this witness to review a portion of the 2004 slide selected by plaintiffs’ counsel and answer questions, based on her review of this portion of the slide as to whether she now believes that in 2004 she erred in not providing for a further review of the slide. Such testimony is irrelevant and prejudicial and will needlessly prolong depositions of professionals in professional negligence actions."

The Judge went on to explain that the actions taken in the 2004 viewing of this slide are undisputed. The issue now is whether the care and skill exercised by the witness in reviewing plaintiff s PAP smear fell outside the acceptable professional standards.

“A statement of the witness as to what steps she would have taken following a thorough review of a specific area of a slide selected by a third party, when she now knows the outcome, is not only irrelevant to the issue of whether the witness breached the standard of care but is also very prejudicial.” The controlling issue for the liability phase of the trial will be whether the cytotechnologists acted within the appropriate standard of care when reviewing a slide of an apparently healthy woman. “This will be the issue that the experts for both parties will address. This is the testimony upon which the jury should be basing its decision.”

“The witness may be questioned about all decisions that he or she made at the time he or she was furnishing services. The witness can be asked about what this witness did and did not do and why this witness did not take other actions. However, the witness who will not be offering expert testimony cannot be asked to make an after the fact evaluation of his or her work.”

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