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The state Supreme Court has let stand a lower court ruling that a group of plaintiffs failed to state a claim for medical monitoring based on allegations that a Pittsburgh hospital had used under-qualified technicians to review their Pap smears rather than board certified pathologists. The justices affirmed the Superior Court’s decision – upholding the trial court – in a one-page order less than a month after the case was argued. According to the order, Chief Justice Ralph J. Cappy did not participate in the consideration or decision of the case. The high court heard oral arguments in Walter v. Magee-Womens Hospital in Pittsburgh Sept. 11. During oral arguments, the plaintiffs – who were pushing for a class action claim for medical monitoring – asserted that a failure to properly screen thousands of women for cervical cancer was equivalent to their exposure to a toxic material. They also said the impression created by the reports bearing the electronic signature of a pathologist was in violation of the Unfair Trade Practices and Consumer Protection Law and demanded a re-screening of the Pap smears at the hospital’s expense. During oral arguments, Justice Ronald D. Castille said the questions before the court were whether the appellate court had misapprehended the law and the facts, and whether the Supreme Courts rulings in two toxic tort cases apply to Magee even thought they deal with asbestosis and chemical waste exposure. “Do you want to limit the rights of the female patient base in Pennsylvania and particularly those women who entrusted their health to Magee-Womens Hospital?” plaintiffs counsel Robert C. Daniels asked the court. Daniels, of Sprague & Sprague in Philadelphia, argued that the women affected – potentially tens of thousands – should at least be informed that the hospital used under-qualified technicians rather than board-certified pathologists to screen them for cervical cancer between 1995 and 2003. Daniels, who represents two women who learned of the screening procedure, argued the Supreme Court’s decision in two toxic tort cases should extend to patients in Magee. Justice Sandra Schultz Newman, who authored one of the decisions in question, said during oral arguments that she wasn’t sure the alleged failures to screen for cancer compare to an exposure to toxic substances and wasn’t convinced there is a need for medical monitoring. “It’s not going to take years to have an injury,” she said. “That’s where I have a problem putting the cases together.” Under the standards of the high court’s decision in Redland Soccer v. Department of the Army, the Superior Court pointed out, the plaintiffs must prove that through the defendant’s negligence they were exposed to a proven hazardous substance in greater than normal levels. Under the standard of Simmons v. Pacor Inc., the appeals court said that plaintiffs, to state a claim, had to allege that they had a medical condition as a result of the defendants’ conduct. During oral arguments in Walter, Justice Max Baer focused questions on the nature of the testing the plaintiffs are seeking. “Assuming the allegations are true, you retest the women,” Baer said. “What is there to monitor? We’re done, aren’t we?” Daniel replied that if the abnormal cells the Pap smear is intended to detect are discovered, the damage is already done. The greatest need is notifying the women who may be relying on the tests, he said. William Pietragallo, of Pietragallo Bosick & Gordon in Pittsburgh, argued that the women had no standing to make a claim for monitoring because they have suffered no injury. In the event that a review of the Pap smear reports shows the screens were interpreted wrongly, retesting would be justified in those cases, Pietragallo said. “The Superior Court simply did not err,” he said. “This is not the case to consider changing the law.” Magee-Womens Hospital is part of University of Pittsburgh Medical Center Health System. Cappy, who serves as chairman on the University of Pittsburgh Board of Trustees, did not participate in the Sept. 11 hearing or in the decision in the case. In the wake of the Superior Court’s upholding the hospital’s preliminary objections, class members sought high court review, stressing in their allocatur brief that a “grossly deviant error rate renders every Pap smear performed by Magee during the class period [of 1995 to 2003] suspect at best and, more likely than not, utterly worthless.” The plaintiffs’ counsel claimed that their investigation revealed that as many as 20 percent of the Pap smears reviewed by cytotechnologists as “normal” revealed evidence of abnormal cells. The high court said in an issue statement when it granted allocatur that it would examine whether class members stated a cause of action under Pennsylvania law for medical monitoring, and whether the proposed class of “tens of thousands of women” suffered legal injury sufficient to confer standing where, because of alleged negligence on the part of the hospital, they were required to incur costs for remedial testing. Michael A. Riccardi contributed to this report. Copies of the 19-page opinion in Walter v. Magee-Womens Hospital, PICS No. 06-1354, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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