ATTORNEYS FOR APPELLANTS
Morris L. Klapper
G.R. Parish, Jr.
ATTORNEYS FOR APPELLEES
Kevin C. Schiferl
Sandra Boyd Williams
On October 8, 1996, the Alexanders filed an amended complaint in Marion Superior
Court. In Count I, they alleged that Scheid and Orthopaedics were negligent
in failing to follow up on JoAnns chest x-ray, and that this negligence
resulted in the following harms to JoAnn: (1) serious and permanent injuries necessitating
extensive additional medical care; (2) an increased risk of harm and decreased chance
for long-term survival (later dubbed loss of chance), including the loss of the
possibility of successful removal of the tumor; (3) the incurrence of substantial medical
expenses and loss of earning capacity; and (4) severe emotional distress. In
Count II, Jack Alexander alleged loss of consortium. JoAnn asserts that in
the months following her first x-ray but preceding her diagnosis with lung cancer
her injuries included: (1) deterioration of her overall health, including exhaustion, pneumonia-like symptoms,
and feeling run-down in general; (2) spitting up blood; (3) an exacerbation of
cancer, i.e., an increase in the size of the tumor and metastasis to
one lymph node and the bronchial margin, resulting in cancer that is either
incurable or at a minimum has a significantly lower probability of being treatable;
and (4) damage to healthy lung tissue and lung collapse.
Three doctors were deposed regarding JoAnns comparative prognoses in June 1993 and May 1994. In capsule form, they presented admissible evidence that (1) JoAnns cancer was likely in Stage I at the time of the first x-ray but had advanced to Stage IIIa before it was diagnosed; and (2) the probability of her long-term survival was significantly reduced over that period of time.See footnote Scheid and Orthopaedics moved for summary judgment, arguing that, in view of JoAnns remission, JoAnn had suffered no present compensable injury, and therefore, as a matter of law, had no claim. The trial court agreed and the Court of Appeals affirmed, concluding that: (1) Section 323 of the Restatement of Torts does not allow recovery for wrongs that increase the risk of harm unless the harm has come to pass; (2) JoAnn was not presently injured physically; and (3) in the absence of a physical injury, the modified impact rule does not apply to allow JoAnn to recover for negligent infliction of emotional distress. See Alexander v. Scheid, No. 49A05-9710-CV-431 (Ind. Ct. App. Apr. 27, 1998) (mem.).
This case raises four questions. (1) Does Indiana law permit JoAnn to recover for an increased risk of incurring a life shortening disease under the loss of chance doctrine or otherwise? (2) If so, what is the appropriate measure of damages? (3) Has JoAnn suffered an impact that would allow her to recover for negligent infliction of emotional distress under the modified impact rule? (4) May JoAnn maintain a cause of action for the aggravation to date of her lung cancer?
368 F.2d 626, 632 (4th Cir. 1966) (quoted in Mayhue v. Sparkman, 653
N.E.2d 1384, 1387 (Ind. 1995)). The term loss of chance has been
applied to a number of related situations. These include: (1) an already
ill patient suffers a complete elimination of an insubstantial or substantial probability of
recovery from a life-threatening disease or condition
See footnote ; (2) a patient survives, but has
suffered a reduced chance for a better result or for complete recoverySee footnote ; and
(3) a person incurs an increased risk of future harm, but has no
current illness or injury.See footnote The first of these was addressed by this
Mayhue. See 653 N.E.2d at 1384. The Alexanders now
present the second, which, like the first, typically arises in the context of
a claim of negligent health care. The third commonly arises in connection
with claims of exposure to toxic substances, where no adverse results have yet
These cases pose a number of separate but sometimes interrelated issues. First, many courts initially address the issue as one of causation. Mayhue took the view that under traditional medical malpractice theory, when a patients chance of recovering from a disease is already less than fifty percent, it can never be said that the doctors malpractice was the proximate cause of the ultimate death. See id. at 1387. Accordingly, recovery under traditional tort standards of causation is barred under those circumstances. This approach views the injury as the ultimate adverse result of the disease, which may be death, but may also be other conditions (paralysis, blindness, etc.).
Just as it is difficult to find causation where the harm is already more than likely to occur, it seems odd to speak of a causal relationship between a defendants act or omission and an as yet unknown ultimate result. Although an act of malpractice may reduce a patients chances for survival or for obtaining a better result, this is simply a statistical proposition based on the known experience of a group of persons thought to be similarly situated (in JoAnns case, persons with four centimeter nodes in the lungs). In any given case, however, the plaintiffs ultimate injury either does or does not occur. Thus, if full recovery is awarded based on an appraisal of causation (or greater than fifty percent probability), the plaintiff who later beats the odds may be overcompensated for an injury that never ultimately emerges. Similarly, the plaintiff who has a less than fifty percent chance, but nonetheless does ultimately bear the full brunt of the disease, may be undercompensated.
One way to deal with this problem is to permit multiple suits as different injuries develop, See footnote but that approach has several shortcomings, including the generation of multiple litigation and the attendant costs of that litigation.See footnote Delaying suit is another possibility,See footnote but that fails altogether to compensate for the very real pain and distress that accompanies an uncertain but probable serious or fatal condition.See footnote Delaying suit for medical malpractice in Indiana also has a distinct disadvantage. Given the occurrence-based limitations period for Indianas medical malpractice claims and our holding that the Indiana Constitution prohibits barring only claims that have accrued but are unknowable,See footnote a person in JoAnns shoes may be forever barred if the claim cannot be presented until the disease recurs.
These factors argue in favor of permitting the Alexanders to bring their claims now. If this is to be done, however, there are further complexities to address. First, there is disagreement as to the elements of recoverable damages. Some courts purporting to address loss of chance allow recovery only for medical expenses, lost earnings, or loss of consortium, see, e.g., Roberts v. Ohio Permanente Medical Group, Inc., 668 N.E.2d 480, 484-85 (Ohio 1996) (in loss of chance cases, damages are recoverable for underlying injury or death). Others have explicitly allowed recovery for what the doctrines name suggests: the loss of the chance itself, see United States v. Anderson, 669 A.2d 73, 76 (Del. 1995) (citing cases). If a lost chance is to be compensable, its valuation also presents issues. Damages may be assessed for the full amount of the injury, if the full extent of the physical injury is already known. See Weymers v. Khera, 563 N.W.2d 647, 653 (Mich. 1997) (citing cases from jurisdictions that assess full damages when plaintiff has established that defendants negligence increased plaintiffs risk of harm). Other courts have attempted to assess the damages in proportion to the likelihood that the doctors negligence caused (or will cause) an injury. See, e.g., McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 475-76 (Okla. 1987) (holding, where decedents fatal heart attack was misdiagnosed as gastritis, that loss of chance damages must be limited to those proximately caused from a defendants breach of duty).
Finally, if damages are awardable for the increased risk of an injury that has not yet occurred, the court faces the difficult task of putting a dollar amount on an as yet unknown loss. The Alexanders claim here presents that issue as to the ultimate recurrence of the cancer. They also assert current injury in the form of the cancers metastasizing, and the anxiety generated by the prospect of future recurrence.
B. Mayhue v. Sparkman
In Mayhue, this Court held that Section 323 of the Restatement of Torts was the appropriate mode of analysis of a claim for injuries that had been sustained (the patient had died), but which were more likely than not to have occurred even in the absence of any negligence (the patients ultimate injury was more probable than not before treatment). See 653 N.E.2d at 1388-89. Section 323, Negligent Performance of Undertaking to Render Services, states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the others person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if,
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) the harm is suffered because of the others reliance upon the undertaking.
Specifically, under Section 323, a jury may consider, once the plaintiff proves negligence and an increase in the risk of harm, . . . whether the medical malpractice was a substantial factor in causing the harm suffered by the plaintiff. Id. at 1388. Section 323s formulation, by its terms, presupposes that physical harm has resulted from the negligent care. In Mayhue, because the patient had died, the ultimate physical harm was already known. We held that the plaintiffs spouse could, under Section 323, maintain his cause of action for loss of consortium even though the experts agreed that, in the absence of the defendants negligence, it was still more likely than not that the plaintiff would have died. See id. at 1387-89. We distinguished Section 323 from what was dubbed a pure loss of chance doctrine, which compensates for the loss of chance itself and not for the plaintiffs physical injury that was incurred but likely even before the defendants act or omission. In a pure loss of chance case, [t]he compensable injury is not the result, which is usually death, but the reduction in the probability that the patient would recover or obtain better results if the defendant had not been negligent. Id. at 1387-88. In Mayhue, because the plaintiff was seeking damages for loss of consortium that resulted from his wifes death, rather than for the loss of his wifes chance for recovery, we were not faced with whether to compensate a plaintiff for the loss of chance itself.
The defendants argue that in Mayhue this Court rejected the loss of chance doctrine, and that, left with Section 323 as their remedy, the Alexanders cannot recover because JoAnn has not yet suffered a recurrence. The Court of Appeals has agreed with this interpretation of Mayhue, finding that this Court specifically rejected the loss of chance doctrine in favor of Section 323. See Smith v. Washington, 716 N.E.2d 607, 614 n.3 (Ind. Ct. App. 1999); Cahoon v. Cummings, 715 N.E.2d 1, 6-7 (Ind. Ct. App. 1999). The Alexanders, on the other hand, assert that this Court adopted the loss of chance doctrine in Mayhue, finding support for this hypothesis in the following language: Accepting the § 323 approach does not require a separate loss of chance doctrine. 653 N.E.2d at 1389 (emphasis in original). According to plaintiffs, the emphasis of the word separate signals the incorporation of the loss of chance doctrine into this Courts Section 323 analysis. The plaintiffs contend that, in adopting Section 323, which provides a cause of action when the defendant, by his or her negligence, increases the risk of harm to a plaintiff, this Court has already recognized the viability of a cause of action for the increased risk of harm itself.
Mayhue left unresolved the issue presented by the Alexanders claim. Mayhue explicitly pointed out that it dealt with a claim for a patient who had died, allegedly as the result of negligent treatment. Because the patient in Mayhue was seriously ill before treatment, the case addressed whether a plaintiff may maintain a cause of action for medical malpractice even though traditional causation standards may not be satisfied. In contrast, here the issue is whether a reduced chance of survival, which mathematically equates to a decrease in life expectancy, is itself a compensable injury. If it is, a plaintiff may recover for this injury, independently of whether the plaintiff has or has not actually beaten the odds to date.
C. Loss of Chance as an Independent Injury
Causation and injury are sometimes described together as the collective third element of a medical malpractice claim. See Mayhue, 653 N.E.2d at 1386-87 (reciting that, in order to prevail in a medical malpractice cause of action, a plaintiff must establish: (1) the physician owed a duty to the plaintiff; (2) the physician breached that duty; (3) the breach proximately caused the plaintiffs injuries). Causation and injury are distinct, however, and we are confronted with this distinction here.
We think that loss of chance is better understood as a description of the injury than as either a term for a separate cause of action or a surrogate for the causation element of a negligence claim. If a plaintiff seeks recovery specifically for what the plaintiff alleges the doctor to have caused, i.e., a decrease in the patients probability of recovery, rather than for the ultimate outcome, causation is no longer debatable. Rather, the problem becomes one of identification and valuation or quantification of that injury. We view the issue presented by JoAnns claim as whether a plaintiff may recover for an increased risk of harm, here a decreased life expectancy, caused by a doctors negligence, before the ultimate consequences are known. Because in this case the ultimate injury is death, the increased risk of that result is a decrease in life expectancy. Although loss of chance could also be applied as a label for this injury, we do not view recognizing this injury as a deviation from traditional tort principles. Rather, in this context it is nothing more than valuation of an item of damages that is routinely valued in other contexts. Scheid and Orthopaedics have conceded, for purposes of summary judgment, that they had a duty toward plaintiff and that they breached that duty. They do not concede that the breach caused a compensable injury, but they have, at this summary judgment stage, not yet contested that their negligence caused JoAnns chance of long-term survival of cancer to be reduced. They contend only that Indiana does not recognize a reduction in the long-term probability of survival as a compensable injury. In Dayton Walther Corp. v. Caldwell, 273 Ind. 191, 198-99, 402 N.E.2d 1252, 1256 (Ind. 1980), this Court held that the trial court did not err in overruling an objection to evidence of the increased risk of meningitis and epilepsy caused by the defendants negligence. We concluded that: To hold otherwise would virtually wipe out any appraisal by an expert medical witness as to an estimate of permanent future impairments. Id. Scheid and Orthopaedics attempt to distinguish Caldwell, noting that, in Caldwell, the plaintiff had, as of trial, already suffered one bout of meningitis. Meningitis was one of the two ultimate potential effects, and even as to meningitis the ultimate consequences were not yet known. Caldwell thus foreshadowed recognition of compensation for increased risk of yet unknown but serious consequences.
A number of jurisdictions allow recovery for negligence that has increased the risk of harm, even where the full ramifications of the defendants actions are not yet known. See Cudone v. Gehret, 821 F. Supp. 266, 270-71 (D. Del. 1993) (Delaware would allow jury instruction regarding recovery for increased risk of harm where doctors alleged malpractice in failing to timely diagnose breast cancer more than doubled possibility of recurrence of breast cancer); James v. United States, 483 F. Supp. 581, 587 (N.D. Cal. 1980) (in lung cancer case, awarding damages for the loss of the opportunity for earlier and possibly more effective treatment in spite of current remission); Boryla v. Pash, 960 P.2d 123, 127 (Colo. 1998) (directed verdict in favor of the defendant was error in view of evidence that a three-month delay in diagnosing breast cancer could have increased plaintiffs risk of a recurrence); Petriello v. Kalman, 576 A.2d 474, 484-85 (Conn. 1990) (upholding instruction on compensation for increased likelihood that plaintiff would suffer bowel obstruction); Moattar v. Foxhall Surgical Assocs., 694 A.2d 435, 439-40 (D.C. 1997) (plaintiff could presently recover for all future economic injuries when cancer was more probable than not to recur and cause her death).
More specifically, many jurisdictions have recognized a decrease in life expectancy as a cognizable injury. See Anderson, 669 A.2d at 78 (recovery for shortened life expectancy due to increased risk of a recurrence of testicular cancer); Swain v. Curry, 595 So. 2d 168, 172-73 (Fla. Dist. Ct. App. 1992) (recovery for increased risk of cancer, decreased chance of survival, and reduction of life expectancy allegedly caused by defendants failure to diagnose breast cancer in a timely manner); Knopfer v. Louisiana Patients Compensation Fund, 527 So. 2d 326, 329 (La. Ct. App. 1998) (plaintiffs reduction in life expectancy justified jury award of $500,000 for misdiagnosis of moles as benign); Morrison v. Stallworth, 326 S.E.2d 387, 393 (N.C. Ct. App. 1985) ([S]hortened life expectancy is a compensable element of damage.); Davison v. Rini, 686 N.E.2d 278, 283-84 (Ohio Ct. App. 1996) (recognizing a shortened life expectancy as a cognizable injury where eighty-five percent chance of full recovery was reduced to twenty-five percent chance of surviving five years). But see Beeman v. Manville Corp. Asbestos Disease Compensation Fund, 496 N.W.2d 247, 256-57 (Iowa 1993) (maintaining that reduction in life expectancy itself is an element of damages only in South Carolina, which has adopted the English Rule that lost opportunity to live out ones full life is recoverable).
Here, JoAnn has pointed to evidence that would support a finding of both present injury and increased risk of harm. We agree with the authorities that find these sufficient to maintain a cause of action for an increased risk of harm. JoAnn has characterized defendants actions as having reduced her chance for long-term survival and extinguished the chance for successful removal of her tumor. The doctors testified that JoAnns chances of complete recovery, sixty to eighty percent in June of 1993, had dropped to a ten to thirty percent chance of surviving five years by May of 1994. JoAnn has suffered physical injuries, including the growth of a cancerous tumor, the destruction of healthy lung tissue, and the collapse of a lung. See footnote Scheid and Orthopaedics point to the fact that JoAnn does not ask for past medical expenses or for lost earnings. However, this has no bearing on whether or not she may maintain a separate cause of action for her decreased life expectancy.
In some cases an intangible loss may be as great an injury as any that a plaintiff could suffer. JoAnn must live under constant fear that at any time she may suffer a recurrence of her lung cancer. If that occurs, her doctors have testified that she has no chance of survival. This is not too remote or speculative an injury to preclude recovery, and JoAnn should not be forced to wait until she has suffered a relapse to proceed with a cause of action for what is essentially a daily threat of impending death, or to wait until her husband, on her behalf, is left with a wrongful death claim. As already noted, given the occurrence-based statute of limitations for medical malpractice, these future claims may face substantial obstacles. Money is an inadequate substitute for a period of life, but it is the best a legal system can do. The alternative is to let a very real and very serious injury go uncompensated even if due to negligent treatment. Faced with that choice, we hold that JoAnn has stated a viable cause of action and presented evidence sufficient to defeat summary judgment. Specifically, within the parameters set forth here, we hold that JoAnn may maintain a cause of action in negligence for this increased risk of harm, which may be described as a decreased life expectancy or the diminished probability of long-term survival.
Here, we also have an injury that often accompanies a delay in diagnosisthe invasion of healthy tissue by a tumor or other growth. Accordingly, this case does not present the issue whether a plaintiff must have incurred some physical injury as a result of the defendants negligence in order to recover for an increased risk of harm.See footnote Some courts have concluded, particularly in the loss of chance context, that the loss must be substantial before it is compensable.See footnote We see no obvious method of quantifying that test.See footnote Because we measure damages by probabilizing the injury, the likelihood that plaintiffs will bring claims for trivial reductions in chance of recovery seems small. If, in the future, we face a volume of insignificant claims, perhaps such a rule will become necessary. For now, we are content to rely on basic economics to deter resort to the courts to redress remote probabilities or insubstantial diminutions in the likelihood of recovery.
D. Valuation See footnote of the Injury
We have referred to a reduced probability of survival and diminished life-expectancy as two terms for the same concept. This requires some explanation. In the Alexanders case, let us assume the jury concludes from the expert testimony that before the failure to diagnose she had a seventy percent chance of full recovery and a normal life expectancy. As already noted, this is a statistical proposition that seventy of 100 patients with JoAnns initial condition will have a normal lifetime. To take the simplest example first, assume that there is a 100% chance of successful treatment if there were no negligence. Leaving aside any other individual factors, the patients life expectancy is the median of our collective experience as to the age at death of persons of her age and gender. Otherwise stated, a life expectancy is no more than the composite of the remaining lives of a large number of people, some of whom will die the next day and some of whom will become nonagenarians.
Here, at the time of diagnosis, the expert testimony put her chance of survival for five years at approximately twenty percent. To be comparable to her pre-negligence expectancy, it must be converted, which we assume can be done, into a comparable median lifetime or expectancy. A person with a normal life expectancy has only a fifty percent chance of attaining that expectancy. Even if we reduce both the before and after numbers to comparables, the problem identified earlier remains: expectancy is itself a statistical proposition, and compensating on the basis of expectancy will either overcompensate or undercompensate depending on how long the plaintiff actually lives.
Finally, if we take as our starting point not a normal life expectancy, but the expectancy of someone with an already heightened risk, the analysis is the same, but both the before and after numbers require a conversion of probability of survival into an expectancy. Presumably we do not have statistics that permit confident evaluation of the anticipated life span of patients with many conditions to the same degree that mortality tables give those values for the general population. Despite these difficulties, and recognizing that it can produce a windfall for some and shortchange others, we have compensated for reduced life expectancy in other contexts. See footnote Application of the same principles is the best we can do to value the reduced probability of a full recovery.See footnote This would value the injury at the reduction of the patients expectancy from her pre-negligence expectancy. Ultimately, the jury will have to attach a monetary amount to JoAnns loss. In so doing, because this is JoAnns action, the jury will be forced to consider what value to ascribe to the privilege of living. In other contexts, juries are routinely entrusted with the task of awarding damages for injuries not readily calculable. See Indianapolis News, Inc. v. Fields, 254 Ind. 219, 219-20, 259 N.E.2d 651, 656 (1970) (jury awarded $60,000 in libel suit); Miller v. Ryan, 706 N.E.2d 244, 247 (Ind. Ct. App. 1999) (jury awarded $325,000 in informed consent claim); Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 187 (Ind. Ct. App. 1998) (jury awarded $250,000 in emotional distress damages to plaintiff who was pricked in the thumb by a hypodermic needle concealed in toilet paper roll). Valuing a determinable number of years of life is no more challenging than these exercises.
Id. at 456. In Shuamber, this Court concluded that passengers in a
car involved in an accident in which a family member was killed could
recover for emotional distress that resulted from the death, even if it was
unconnected to their physical injuries. See id. In Conder v. Wood,
we allowed a mental distress claim by a plaintiff who had beat on
the side of a truck that was running over her co-worker, concluding that
the contact between her fist and the truck satisfied the impact requirement.
See 716 N.E.2d 432, 433 (Ind. 1999).
Similarly, we conclude that the JoAnn has satisfied the elements of negligent infliction of emotional distress under the modified impact rule. See footnote The impact does not consist, as Scheid and Orthopaedics allege, of the failure to diagnose cancer.See footnote Rather, allegedly as a result of the defendants negligence, JoAnn suffered the destruction of healthy lung tissue by a cancerous tumor. As we held in Conder, the purpose of the rule is to confine recovery to those with direct involvement in the defendants negligent act or omission. JoAnn was treated by the defendants and has incurred a physical change as a result. This is good enough. JoAnn testified that she is now being treated with antidepressants and described the devastation surrounding her bleak prognosis. These are reasonable responses under the circumstances. These allegations are sufficient to defeat a summary judgment motion on the issue of emotional distress, and JoAnn is not precluded as a matter of law from proceeding with this claim.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.