Bottrill's lawyer argues to stop Jane

By FRANCESCA MOLD

The Court of Appeal has reserved its decision on whether to allow a woman whose cervical smear slides were misread to sue former Gisborne pathologist Dr Michael Bottrill.

The woman, known to Herald readers as Jane, was at the court in Wellington yesterday to hear Dr Bottrill's lawyers argue against a High Court decision to allow a retrial of her lawsuit for exemplary damages.

The appeal was heard by Sir Ivor Richardson and Justices Andrew Tipping, Ted Thomas, Thomas Gault and Peter Blanchard.

Jane's predicament - she developed cervical cancer after four of her slides were misread by Dr Bottrill - led to the Gisborne-based ministerial inquiry into smear misreading.

She sued Dr Bottrill for gross negligence in March 1999, but her case was dismissed.

A retrial was granted after fresh evidence emerged showing up to 1500 women may have had their slides misreported.

Dr Bottrill's lawyer, Christopher Hodson, QC, appealed against that decision, saying that although new evidence showed Dr Bottrill made many errors, there was nothing to show his client was aware of his mistakes at the time.

He said a degree of consciousness of wrongdoing was required before a trial for exemplary damages could go ahead.

Allowing Jane's case to proceed could mean others would follow and Dr Bottrill would be financially punished many times over.

Antonia Fisher, for Jane, said her client's case should not be refused because there was a possibility of a class action.

She said that in his initial decision, Justice Young had looked sympathetically on Dr Bottrill because he was assured the pathologist was competent and had simply made mistakes. New evidence made significant inroads into that conclusion, said Ms Fisher.

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