Prospects of Future Illness: Still Not Actionable

Gill v. Burress, 382 S.W.3d 57 (Ky. App. 2012)

In this well-reasoned decision, the Kentucky Court of Appeals (Judge Joy A. Moore) reaffirmed the well established principle that “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.”

The decision was made on the following facts:
A physician negligently failed to detect a cancerous mass in the plaintiff’s breast for approximately eighteen months. Then, the patient underwent an aggressive treatment that made her cancer free. Moreover, medical evidence indicated that the patient is at least seventy percent likely to remain cancer-free in the future. The patient still sought compensation for her residual 30% prospect of developing cancer in the future that allegedly resulted from the doctor’s malpractice.

The Court of Appeals upheld the circuit court’s determination “that any future medical treatment relating to a potential recurrence of cancer is non-compensable” because “Kentucky law allows a plaintiff to recover for damages only where the fact of damage is reasonably certain.” The Court also found “no error in the circuit court’s determination that [the plaintiff’s] decreased chance of remaining cancer-free is non-compensable.” The Court clarified in this connection that Kentucky law does not recognize “a decreased chance for long-term survival, or lost chance for recovery or a better medical result (due to negligence), as a compensable injury.” The Court analogized suits seeking compensation for the plaintiff’s increased risk of illness to suits seeking compensation for the plaintiff’s lost chances to recover from illness.  The Court quoted with approval the decision of 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).
The Court’s decision squarely aligns with the law.

But the law isn’t good. Here is why:
Consider Kentucky’s repose statute, Ky. Rev. Stat. Ann. § 413.140(2), that extinguishes medical malpractice suits five years after the patient’s negligent treatment by the doctor.  Because the patient, Ms. Gill, has not yet developed a new breast cancer when she filed her suit against the physician, the court told her that she came in too early.  Ms. Gill could not legally sue the physician while she remains cancer free: this is the legal rule in Kentucky and elsewhere. This rule tells Ms. Gill that she must wait and see whether she becomes afflicted again. But what if Ms. Gill develops another breast cancer five years and one day after she was negligently misdiagnosed by the physician? Under that scenario, if Ms. Gill decides to sue the physician, her suit would be dismissed under the repose statute because it was filed too late.  The two rules thus effectively tell Ms. Gill that suing a doctor is never a good idea even when the doctor committed malpractice. SeeAlex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1255-56 (2012).

Oftentimes, a person facing a prospect of becoming seriously ill must take protective measures to minimize her risk of illness. These measures include periodic scans and medical monitoring, dietary and regimen adjustments, and even change of occupation and relocation to a better climate. Under extant law, not taking those measures often amounts to comparative (if not contributory) negligence and may even make the person’s subsequent illness an “avoidable consequence.” The person’s right to recover compensation form the doctor whose negligence exposed her to the prospect of future illness will consequently be reduced and perhaps even eliminated completely. If so, why not require the negligent doctor to pay the person for the protective measures she needs to take?

More fundamentally, why make a person negligently exposed by her doctor (or another wrongdoer) to a prospect of becoming seriously ill wait and see whether this prospect materializes? When the future illness is fatal, for example, expedited compensation would allow the victim to use the money during her lifetime. Also: as I already mentioned, some victims might be able to use their expedited compensation towards partial or complete cure; and they might also purchase a costly life and medical insurance.

Finally, the “wait and see” advice that the law presently gives to a potential victim fails to account for the risk of the wrongdoer’s insolvency and disappearance. When the victim does become ill, she may well find out that there is nobody for her to recover compensation from. For that reason, the “wait and see” rule ought to be accompanied with another rule that requires the wrongdoer to buy insurance covering the victim’s potential illness and losses resulting therefrom. The law’s failure to secure this insurance arrangement makes it strikingly imbalanced in defendants’ favor.

Remarkably, courts often count a tort victim’s prospect of future illness as a factor that aggravates her fear and anxiety and correspondingly increases her compensation for emotional distress. This increase, however, is not given automatically.  Courts award it only when the victim is entitled to emotional-distress damages as a consequence of physical injury wrongfully inflicted upon her by the defendant: see Norfolk & Western Railway Company v. Ayres 538 U.S. 135 (2003).  An interesting question that arises here is whether the future-illness increase should be given to a tort victim who deserves to recover compensation for free-standing emotional harm.  This question arises in the medical malpractice area when a doctor owes her patient a direct duty to avoid causing the patient emotional distress.

For more details on all these issues, see my article with Ariel Porat, Liability for Future Harms, in Perspectives on Causation 221 (Richard S. Goldberg, ed., Hart Publishing, Oxford, 2011).

For an important recent development that took place in Minnesota on 5.31.2013, see here.