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Mary is a 42-year old mother of three. In 1994 she presented to her primary care physician after having detected a lump on self-exam of her left breast. Mary's primary care physician suspected fibrocystic disease, but as a precautionary measure, ordered a mammogram. The mammogram was interpreted as normal and no further follow-up was performed. One year later Mary returned to her primary care physician and reported that the lump had noticeably enlarged and she was experiencing tenderness in the area of the lump. At this time, Mary was referred to a surgeon who biopsied the lump and a diagnosis of cancer was made. Review of the earlier mammogram revealed that it had been misinterpreted and the diagnosis of Mary's cancer was delayed for over one year. When removed, the malignant tumor measured 1.9 cm. and one lymph node was involved. Following radiation and chemotherapy, Mary has remained cancer free for two years. Mary has been advised by her doctors that there is a 30% chance that her cancer will recur, whereas if promptly diagnosed one year earlier, prior to lymph node involvement, the chances of recurrence were minimal. She comes to you for help.
In the typical medical malpractice case, damages are comprised primarily of economic loss, medical bills, and decreased life expectancy or physical injury due to the physician's negligence. In cases such as Mary's, however, the provable medical specials are low and as there is only a 30% chance of recurring cancer, future medical bills, physical harm, and decreased life expectancy cannot be proved more probably than not. Despite this, the patient is confronted with the daily fear that the illness will recur, and she must live with the knowledge that the chances of recurrence have been greatly increased by the doctor's negligence. The fear of recurrence is an often overlooked element of compensable damages and is distinguishable from damages from "loss of a chance." The purpose of this article is to clarify the difference between compensation for fear of future harm as opposed to loss of a chance and to explore some of the practical considerations in bringing a case based primarily on fear of future harm.
In those jurisdictions which permit a cause of action for a lost chance of survival, the courts have concluded that: "When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there is a substantial possibility of survival and the defendant has destroyed it, he is answerable."1 The loss of chance theory applies in medical malpractice cases when a pre-existing illness is aggravated so substantially by physician negligence that the patient is deprived of a substantial opportunity to survive.2 Those jurisdictions which have adopted the loss of chance doctrine have done so recognizing that a patient's opportunity to survive illness is an important right not to be denied solely because the physician benefits from the uncertainty created by his own conduct.3 The loss of chance doctrine applies even when the patient's chance of recovery absent negligence would have been 50% or less.4
The loss of chance theory by definition relaxes traditional notions of causation. In Pillsbury-Flood v. Portsmouth Hospital5, the New Hampshire Supreme Court concluded that permitting a cause of action for loss of chance was "ill advised."6 The Court was clearly uncomfortable with any ruling that would relax traditional notions of causation and burden of persuasion and, therefore, New Hampshire plaintiffs do not enjoy the benefits of the loss of chance doctrine enjoyed by patients in a majority of States.7
While plaintiffs in New Hampshire may not recover damages for a lost chance of survival, New Hampshire has long recognized as an element of compensable damage reasonable fears brought about by a defendant's negligence. Fear as an element of compensable damage is distinguishable from "lost chance." In the former, the plaintiff seeks compensation for a present, existing harm; her fear. Unlike the plaintiff in a loss of chance case, the plaintiff seeking damages for fear of future harm is by definition alive and to all present appearances, physically healthy. Mental fitness is, however, as important as physical and deserving of compensation when damaged.8
In Smith v. Railroad9, the plaintiff was a pedestrian who had been struck by a freight train. At trial, Ms. Smith testified to the effect that she was in horror that her legs might become paralyzed as a result of the accident.10 There was no evidence introduced at trial to establish that as a result of her injuries Ms. Smith would more probably than not suffer paralysis. In fact, there was no evidence, other than her word, to establish that Ms. Smith's fears were real. Despite this, the jury was properly instructed that they could award damages for plaintiff's reasonable apprehension of a future possibility. That the chance of future paralysis in fact was not probable did not alter the fact that her present fears were reasonable under the circumstances and were more probably than not caused by the accident.11
The holding in Smith is consistent with previous New Hampshire case law on the subject. In Prescott v. Robinson12, a pregnant mother was entitled to damages for apprehension she experienced following a traumatic injury while pregnant. That the child was ultimately born without defect was irrelevant and the plaintiff was entitled to damages for the pre-birth apprehension she suffered. In a similar circumstance, the Court in Bowley v. Duca13, noted:
In permitting award of damages for fear occasioned by a negligent failure to diagnose a serious medical condition, New Hampshire is among a number of other jurisdictions which have considered this very issue.15
Smith and Prescott permitted an award of damages for fear of future possibilities with no discussion of the need to present expert testimony in support of the claim, or of proof that the fear was manifested by objective physical symptoms. These issues have been addressed by multiple Courts in the ensuing years. Unfortunately, the New Hampshire Supreme Court has not clearly addressed the issue, and decisions in other cases have raised doubt as to the proof required to pursue a claim for fear of future illness.
The most important recent pronouncements of the New Hampshire Supreme Court on the proof required to sustain an action for mental distress are Corso v. Merrill16 and Thorpe v. State.17 In Corso, the court required as a prerequisite to parental bystander recovery that the parent suffer physical manifestation of emotional distress.18 In Thorpe, the Court held that in order for a plaintiff negligently diagnosed with syphilis to recover damages he must also demonstrate physical manifestation of symptoms.19
That the plaintiff in Thorpe was not a bystander and was pursuing a traditional negligence claim as opposed to a claim for negligent infliction of emotional distress was of no consequence.20 Both the holding in Corso and the holding in Thorpe find their roots in the Court's concern that the emotional upset be sufficiently severe to be afforded legal protection.21 At first blush the Corso and Thorpe decisions appear to contradict Smith and Prescott. However, on closer examination, and in conjunction with decisions from other jurisdictions, the contradiction is more illusory than real; more theoretical than practical.
In Mary's case, the one year delay in diagnosis permitted further growth of her tumor and invasion of a lymph node. Medical testimony will establish that the delay increased the risk of recurrence. Common sense will make apparent the reasonableness of Mary's fears. Therefore, unlike the plaintiffs in Corso and Thorpe, Mary has suffered a direct physical trauma as a result of her doctor's negligence. Hers is not a purely emotional injury, and therefore, even if there was a requirement in New Hampshire of physical harm to accompany mental fear, Mary's case survives.
Such was the case in Boryla v. Pash.22 In Boryla, the plaintiff suffered a three month delay in diagnosis of breast cancer. The delay was alleged by plaintiff to have permitted growth of her tumor and an increase in cancer cells in her body. Plaintiff's medical expert opined that every day lost in treatment increased the possibility of metatasis and possibility of future recurrence.23 Four years post-diagnosis, after treatment, the plaintiff remained cancer-free. She presented no evidence of physical manifestation of her fears or that it was more probable than not that she would indeed suffer a recurrence of illness. Ms. Boryla received a verdict in excess of $200,000.00.
In reversing the intermediate Appellate Court which had overturned plaintiff's verdict24, the Colorado Supreme Court observed that "by presenting evidence that her condition physically worsened as a result of the delayed diagnosis, Boryla established an attendant physical injury which permitted the jury to consider damages for the emotional distress stemming from her fear of an increased risk of cancer recurrence."25 Furthermore, as the plaintiff in a case of delayed diagnosis will have suffered an attendant physical injury " . . . the usual reservations courts have concerning jury speculation and conjecture in cases involving plaintiffs seeking purely emotional damages are inapplicable in a case such as Boryla's."26 Just as the plaintiffs in Smith v. Railroad and Prescott v. Robinson suffered direct physical harm, our theoretical Mary has as well and the concerns raised in Corso and Thorpe are inapplicable.
In conclusion, plaintiffs who suffer from fear of recurrent illness as a result of misdiagnosis or delay in diagnosis of a physical condition may recover damages for the apprehension to which they are then subjected. The weight of authority in New Hampshire and elsewhere permits such a cause of action for fear of future illness even in the absence of testimony that the illness will more probably than not in fact occur. The controlling authority in New Hampshire supports a claim that the fear need not manifest itself in physical symptoms, but as a practical matter, the plaintiff will almost always present testimony that the delay in diagnosis resulted in physical harm sufficient to ward off any motion to dismiss. Therefore, attorneys considering representation of victims of medical negligence should not forget the availability of a cause of action even when the traditional tort damages are not readily apparent.