Ruling Limits Damages in Malpractice Suit : Health: The state high court decision prevents a woman from seeking a punitive award against a Tarzana lab that overlooked signs of cancer in her Pap smear.

A California Supreme Court ruling released Friday will prevent a San Clemente woman from seeking punitive damages in a lawsuit against a Tarzana laboratory she said misdiagnosed her Pap smear, missing a cancer that caused her to undergo a radical hysterectomy more than a year later.

The suit by Constance Chatwood Hull and her husband, Michael B. Hull, is against the Central Pathology Services Medical Group, which handled an estimated 700,000 Pap smears a year until it was shut down by state medical authorities in 1989 after an inspection found a 21% error rate in a random sample.

In a unanimous decision, the state Supreme Court justices held that under a recent state law, patients suing medical providers for intentional acts--including fraud, battery and infliction of emotional distress--cannot seek punitive damages until they have obtained permission from the court and proved they are likely to win.

“Obviously, I’m very disappointed, but it’s just one battle,” said Constance Hull, 38. “We haven’t even had a trial yet, and there’s no question that they’re liable.”

Thomas Kallay, the Hulls’ attorney, said the ruling would place additional burdens on malpractice plaintiffs, who may have more difficulty finding attorneys to take on their cases if punitive damages cannot be sought. The cases are expensive to argue, so attorneys rely on winning a share of large punitive damage awards, said Hull, who is a lawyer.

Hull’s suit, one of several pending against the lab, has not yet been heard. But in a preemptive strike, attorneys representing the lab had sought an independent ruling on Hull’s attempt to amend her suit to seek punitive damages, above and beyond compensation for her medical bills and pain and suffering.

“The idea was to . . . punish them and hit them where it hurts, so they’re not just paying a fine and walking away,” Hull said.

Hull said she was not sure how much money her attorney would have sought.

Hull’s suit also named her gynecologist, Elizabeth Irwin of Torrance, who allegedly sent the exam to the lab. Attorneys for the lab and Irwin could not be reached for comment late Friday.

A Pap smear is a routine examination for women, aimed at detecting abnormal cells before they become full-blown cancer. Central Pathology’s high volume, including tests sent from doctors as far away as Chicago, was one reason state health officials cited for its high error rate.

After closing the Tarzana laboratory, the state filed a $3-million lawsuit against the firm and its principals. In November, 1989, the laboratory agreed to pay a $558,000 fine, surrender its license to screen Pap smears and offer free re-screenings of all Pap smears analyzed at the lab since 1984.

At that time, a spokesman for the lab said the owner, Dr. Allen Levy, believed the charges against him had been exaggerated but chose to settle to put the problem behind him. Spokesman Martin Cooper said that some of the nearly 5,000 re-screenings of tests had uncovered previously undiagnosed problems, but that none of those women had had cancer.

After a Los Angeles Superior Court judge in Van Nuys ruled in favor of Hull’s right to seek punitive damages, the lab appealed and in June, 1991, the California Medical Assn. filed a brief in support of the lab, opposing any punitive award.

In July, 1991, the state Supreme Court agreed to review the request and a hearing was held in May.

In its ruling Friday, the court cited a state tort reform law that requires anyone seeking punitive damages for professional negligence from a health care provider to first obtain permission from the court. No such requirement exists for suits seeking punitive damages against other kinds of defendants.

Hull’s attorney had argued that the tort reform law should not apply to her case because she is claiming the lab was guilty of malpractice, not negligence.

Although she said she was disappointed with the ruling, Hull said it would not deter her from pursuing the lawsuit.

Hull said she had a Pap test in June, 1988, at Irwin’s office, shortly after the birth of her second child, which produced no warning she had cancer.

A second Pap test 15 months later showed a malignancy, Hull said. She asked the doctor, half-jokingly, if the first test had been done by the Tarzana lab she had read in a newspaper had been closed for making inaccurate diagnoses, she said.

Hull maintains that her doctor denied the firm was involved, but that she later learned through another patient that Central Pathology did in fact perform work for Irwin. A second analysis of the first test discovered cancerous cells had been visible, but had been overlooked, Hull said.

“When I found that out, it felt like someone had put a gun in my abdomen,” she said. “None of this needed to happen.”

In September, 1989, Hull underwent a radical hysterectomy and removal of several lymph nodes, to which the cancer had spread. She said she has had some medical problems since then, but tries to “stay very positive.”