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Jury Wants Criminal Charges for Misdiagnosed Pap Smears

April 10, 1995

MILWAUKEE (AP) _ Honoring Karin Smith’s dying wish, an inquest jury is recommending homicide charges against those who misread the Pap smears that could have saved her life and that of another woman.

The district attorney is expected to decide this week whether to file charges against the laboratory, a technician and the doctor in charge of the lab in the case of Smith and Dolores Geary, both of whom died of cervical cancer.

District Attorney E. Michael McCann charged that the women were victims of indifference and blatant errors. An expert testified at the inquest that the laboratory missed unmistakable signs of cancer.

The American Medical Association said it knows of only one previous case in which criminal charges were filed against a doctor for a mistake, and none against laboratories or technicians.

Smith died March 8 at age 29 after asking McCann to launch the investigation. She testified before a congressional committee a year ago that she was dying because her health maintenance organization didn’t have the Pap smears diagnosed correctly.

``It was her wish for someone to pursue this because she felt it went beyond negligence,″ said her father, Jorgen Knudsen.

``She didn’t want it to happen to anyone else,″ said her mother, Marlene Knudsen.

McCann said the inquest jury of six laymen was the first in Wisconsin to consider criminal charges for a fatal misdiagnosis.

Lawsuits and other civil actions are the usual course of action in cases of negligence and errors. The Smith and Geary families settled lawsuits against the women’s HMO and the lab; Smith and her husband got $6.3 million, the Gearys, $3.5 million.

AMA general counsel Kirk Johnson said the usual punishment for negligent doctors or technicians is for licensing boards to take away their credentials.

``They’re basically just banished from their profession. It’s a pretty serious sanction,″ Johnson said.

In the only prior case of criminal charges against a doctor, Dr. Gerald Einaugler of New York was ordered last month to spend 52 weekends in jail for reckless endangerment and other offenses in the death of a nursing home patient. He mistook a dialysis tube for a feeding tube and pumped food into her abdomen.

Johnson questioned the need for a criminal charges without willful misconduct, saying the criminal justice system isn’t set up to handle such cases.

``It seems to me, you have a state medical board ... designed to deal with this very kind of thing. If you can find this element of willfulness and knowledge, obviously a criminal case can be made,″ he said. ``It sounds like what you have here is very bad practice or negligence and you have a pretty effective remedy″ in lifting doctors’ licenses.

During last week’s three-day inquest, experts testified cancer was evident in the Pap smears _ gynecological tests for cervical cancer _ years before Smith and Geary had their diseases diagnosed.

The women belonged to the same HMO, Family Health Plan.

In the case of Geary, a mother of three from suburban Oak Creek, a Pap smear in 1987 was reported as normal but showed obvious signs of cancer, said one of the experts who testified, Dr. Billy J. Bauman, medical director of the Dane County Cytology Center.

``It isn’t very often that you see that number of malignant cells on a slide,″ he testified.

The laboratory reported another Pap smear as normal, but when Geary underwent a hysterectomy in 1991, she was found to have advanced cancer of the cervix, testimony showed. She died in 1993 at age 40.

Bauman said the presence of cancer was ``unequivocal″ in slides from Pap smears done in 1988 and 1989 on Smith, a Nashotah accountant. Her cancer wasn’t diagnosed until she saw a doctor outside her HMO in 1991.

While the slides didn’t show how far the cancer had progressed at the time of the tests, Bauman noted that cervical cancer is ``100 percent curable if it’s picked up early.″

``Once it becomes invasive, then it’s bad news. It’s a bad way to die,″ he said.

Martin E. Kohler, the lawyer for the laboratory, Chem-Bio Corp. of Oak Creek, said the inquest was biased because, as in a grand jury hearing, the district attorney decided who testified.

``The corporation knows this entire situation has been a tragic and emotional matter, but it’s not a situation that warrants criminal charges,″ Kohler said.

But McCann told the jury that charges were warranted because the laboratory:

_Used a ``piece-rate″ system for analysis of Pap smears, with the technician in question examining 20,000 to 40,000 a year, compared with the maximum of 12,000 recommended under professional standards;

_Failed to install random controls to check the quality of the Pap smear analysis;

_And showed indifference toward professional standards and the need for continuing education.

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