Kreisman Law Offices Professional Corporation
Darian Wisekal had a pap smear in August 2008. The slide was sent to Laboratory Corporation of America Holdings (LabCorp). A LabCorp technologist errantly interpreted the slide as “negative for intraepithelial lesion and malignancy.” A squamous intraepithelial lesion (SIL) is an abnormal growth of cells on the surface of the cervix, commonly referred to as squamous cells. When diagnosed, this condition may lead to cervical cancer but can be diagnosed using a pap smear. Wisekal died of cervical cancer some three years after the errant read of the slides. She was survived by her husband and two daughters.
John Wisekal, Darian’s husband and her personal representative of the estate, filed a medical malpractice and wrongful death case in Florida’s state court. The lawsuit was removed to the U.S. District Court for the Southern District of Florida.
The Wisekal family claimed that as a result of the misread, Wisekal’s cervical cancer spread and became untreatable. The defendants denied a standard of care failure and also maintained that the disease, cervical cancer, which was the cause of her premature death, was not subject to diagnosis in 2008. The defendants argued that even if the LabCorp cytotechnologist had correctly interpreted the relevant Pap smear as atypical, she would not have presented with cervical cancer.
The defendants also claimed that Wisekal and others, including her treating physicians, were responsible for any delay in the diagnosis of her cancer.
The jury returned a verdict for the Wisekal family finding damages in the amount of $20,870,200. The jury verdict however found that the LabCorp cytotechnologist was 75% negligent and that blame was assigned to Wisekal at the rate of 25%. Under Florida law, the verdict amount was reduced for her comparative negligence so that the final judgment entered was $15,652,650.
After this verdict was entered by the court, the presiding judge slashed the verdict amount to $4.4 million indicating that the noneconomic damages awarded because of the botched diagnosis in the pap smear test was excessive. The U.S. district court judge said the $21 million verdict was “excessive and unreasonable in relationship to the amount of damages proved and was not logically supported by the evidence presented.”
The federal judge added that the $7.5 million individual awards to the two surviving children and the $5 million entered for John Wisekal had no precedent in Florida law and were far in excess of challenged noneconomic wrongful death damage awards that had been sustained by Florida appeals courts.
Instead, the judge entered an order for $2 million in noneconomic damages per surviving minor and $1 million for the spouse.
The Wisekal family was represented by Sean C. Dominick and Stephen F. Rosenthal. It would not be surprising that the Wisekal family would be appealing the federal judge’s reduction of the jury’s verdict.
John Wisekal v. Laboratory Corporation of America Holdings, et al., No. 9:12-cv-80806 (U.S. District Court for the Southern District of Florida).
Kreisman Law Offices has been handling medical negligence cases, wrongful death cases caused by medical malpractice, birth trauma and birth injury cases, nursing home abuse and nursing home negligence cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Naperville, New Lenox, Chicago Ridge, Burr Ridge, Countryside, Western Springs, Westchester, Maywood, Elmwood Park, Harwood Heights, Morton Grove, Evanston, Highland Park, Highwood, Buffalo Grove, Calumet City, Blue Island, Grayslake and Orland Park, Ill.
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