Damages: Increased risk of harm and lost opportunity of recovery in medical negligence cases: Gill v. Burress, COA, 4/13/2012, Published

In medical negligence cases, a misdiagnosis creates two difficult problems for the injured claimant which do not appear to be fully appreciated by our appellate courts, usually under the misguided belief that it would be speculative or too speculative.  These two area are:

(1) lost chance or opportunity to be cured or even have their pain, suffering reduced or diminished.  I have always been amazed at the lack of realistic appraisal, if not naivite’, of the jurists in failing to comprehend that a misdiagnosis resulting in smaller chance of recovery is a wrong that should be compensated.  Whether the lost opportunity or reduction is 90% or 10%, patients/claimants are entitled to all of the chances and all the opportunity that should have been afforded to them to physically recover, have their life physically improved, have their pain mitigated or ameliorated in quantity or quality, and just to be simply free of the worry caused by bad medicine.

(2) in the following decision, the COA further buttresses Kentucky law on the damages of increased likelihood of future complications.

 

345. MEDICAL NEGLIGENCE. DAMAGES (INCREASED LIKELIHOOD OF FUTURE COMPLICATIONS)
GILL (PAULA K.)
VS.
BURRESS (SUSAN M.)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000332-MR
TO BE PUBLISHED
FAYETTE

MOORE, JUDGE: Paula K. Gill, D.M.D., appeals a summary judgment entered by the Fayette Circuit Court in favor of Susan M. Burress, M.D., after the circuit court determined that Burress conclusively proved that Gill would be unable to establish damages arising out of Burress’s alleged professional negligence in failing to detect a mass in Gill’s breast consistent with ductal carcinoma for a period of approximately eighteen months. We find that issues of material fact exist relating to certain elements of damage properly recoverable by Gill, but that other damages claimed by Gill are not recoverable in this case as a matter of law. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

We begin our analysis by identifying Gill’s injury. Gill has had cancer. Burress makes the point in her brief of stating that her negligence, if any, did not cause the cancer. Gill argues, however, that she can prove that the virulent and life-threatening effect of the disease has been exacerbated by Burress’s negligent treatment and diagnosis. Specifically, Gill alleges that due to Burress’s negligence, her tumor grew unchecked for a period of approximately eighteen months and required stronger and more expensive treatment to cure.

In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)

A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.

In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)

A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.

As to the first category of damages, Kentucky recognizes that where substantial evidence of probative value supports an increased likelihood of future complications resulting from a negligently inflicted injury and that increased likelihood, in turn, initiates serious mental distress, the resulting mental distress is compensable. See, e.g., Kemper v. Gordon, 272 S.W.3d 146, 150-51 (Ky. 2008) (citing Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)). Moreover, the increased likelihood of recurrence that is responsible for the ensuing mental distress need not be anything more than a mere possibility. See Davis, 672 S.W.2d at 931, and at 933-34, J. Vance dissenting (“The drastic consequences which may befall movant are only possibilities and, according to the medical testimony, not very great possibilities, certainly nothing even approaching a probability.”).

We are mindful of Burress’s contention that it would be difficult for Gill to attribute any specific part of her existing mental anguish that is specifically related to her five to twenty-five percent increased likelihood of having cancer again, as opposed to what her mental anguish would have been even if she had been timely diagnosed with cancer. Nevertheless, this difficulty should not preclude Gill from presenting her case to the finder of fact. In this respect, we are persuaded by the logic of our sister court illustrated in Swain v. Curry, 595 So.2d 168, 172 (Fla. 1st DCA), rev. denied, 601 So.2d 551 (Fla. 1992). There, the failure to timely detect a breast tumor resulted in a radical mastectomy, whereas earlier detection would have resulted in a lumpectomy. Testimony was presented that Mrs. Swain had a sixty-five percent probability that she would develop a recurrence of the cancer, whereas a timely diagnosis would have resulted in only a five to ten percent possibility of recurrence. In addressing the issue of recoverable damages, the Swain Court noted:

Mrs. Swain is entitled to attempt to prove that her emotional damages are presently greater as a result of such increased fear of recurrence of cancer as has resulted from any provable negligence. Such damages are recoverable, not as a separate cause of action, but as an element of personal injury damages. . . . Claimant in this case certainly faces a formidable obstacle in attempting to demonstrate to the satisfaction of the finder of fact that her emotional distress is of a demonstrably and quantifiably different degree now, as compared to the case of prompt diagnosis and treatment. Difficulty of proof will not, however, deprive a plaintiff of the opportunity to present her case.

Id. at 173 (citation omitted). Importantly, the analysis set forth in Swain was in no way dependent upon that increased risk of recurrence being greater than fifty percent.

As to Gill’s claim that she suffered damage resulting from her chemotherapy treatment and the surgical removal of her ovaries in anticipation of chemotherapy, we likewise find the evidence is sufficient to present a question for the jury. Generally speaking,

[a]ll recoverable damages are subject to some uncertainties and contingencies, but it is generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of damage and not as to its amount. Where it is reasonably certain that damage has resulted, mere uncertainty as to the amount does not preclude one’s right of recovery or prevent a jury decision awarding damages. Johnson v. Cormney, 596 S.W.2d 23, 27 (Ky. App. 1979) (emphasis added), overruled on other grounds by Marshall v. City of Paducah, 618 S.W.2d 433 (Ky. App. 1981); see also Hanson v. American Nat’l Bank & Trust Co., 865 S.W.2d 302, 309 (Ky.1993) (to the same effect), overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483, 495 (Ky. 2002).

We find no error, however, in the circuit court’s determination that any future medical treatment relating to a potential recurrence of cancer is non- compensable. As noted above, Kentucky law allows a plaintiff to recover for damages only where the fact of damage is reasonably certain. See Cormney, 596 S.W.2d at 27. Here, according to the evidence of record, Gill is currently cancer- free and it is at least seventy percent likely, e.g., more likely than not, that she will suffer no recurrence of cancer and, therefore, require no future medical treatment for it.

Similarly, we find no error in the circuit court’s determination that Gill’s purportedly five to twenty-five percent decreased chance of remaining cancer-free is non-compensable. Without laboring the point, a majority of jurisdictions consider a decreased chance for long-term survival, or lost chance for recovery or a better medical result (due to negligence), as a compensable injury,5 a

[[fn 5 A review of the reported cases that have considered the doctrines of “increased risk of harm” and “lost chance” indicates a wide disparity in acceptance and application. See, e.g., Causation- Loss of Chance, 54 A.L.R.4th 10 (1987); Damages-Loss of Chance, 81 A.L.R.4th 485 (1990). Nevertheless, we believe, like the Supreme Court of Delaware, that “Since loss of chance and increased risk of harm both rely on similar theoretical underpinnings . . . it would not be coherent to adopt increased risk without also adopting loss of chance.” United States v. Anderson, 669 A.2d 73, 75-76 (Del. 1995).]] minority of jurisdictions do not,6 [[fn 6 For a fairly recent breakdown of these jurisdictions, as well as an extensive analysis of the policies behind allowing for this type of recovery, see Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008). Notably, Tennessee, Delaware, and Florida, whose law we have briefly surveyed as persuasive authority, are among the jurisdictions noted in Matsuyama that either do not recognize this doctrine, or find it otherwise incompatible with existing precedent. See id. at 829 (citing Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla. 1984)); Kilpatrick v. Bryant, 868 S.W.2d 594, 602-603 (Tenn. 1993); United States v. Cumberbatch, 647 A.2d 1098, 1102-1104 (Del. 1994))]] .and Kentucky is in the minority. See Kemper, 272 S.W.3d 146. Kentucky law also prohibits the possibility of future harm from constituting an element of damages if that possibility is considered outside the realm of damages for mental anguish. Id. at 150-151 (distinguishing Davis, 672 S.W.2d 928); but see United States v. Anderson, 669 A.2d 73, 78 (Del. 1995) (declining to regard fifteen percent increased risk of cancer as a legally recognized injury, but allowing increased risk, in and of itself, to be considered as an element of damages as demonstrative of a significantly greater injury).

In rebuttal, Gill argues that Kemper represents a gross misapplication and misinterpretation of Kentucky precedent, and urges this Court to overrule the Supreme Court on a variety of grounds. Suffice it to say, however, that “[t]he Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.” Rules of the Supreme Court (SCR) 1.030(8)(a). We find that the circuit court did not misapply the Kemper holding in this respect and we therefore find no error because we “cannot overrule the established precedent set by the Supreme Court[.]” Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000) (citing Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986)).

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