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.10There 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:
- proof that the child was or was not deformed when born would not affect the amount of the mother’s recoverable damage . . . the award to her is on account of her apprehension. . . . it is a question of her mental suffering before the child was born. The existence of such suffering is not disproved by evidence that if she had been thoroughly versed in medical science, she would have known that her fears were groundless.”14
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.18In 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.
- Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966). See also Short v. United States, 908 F.Supp. 227 (D.Vt. 1995); Delaney v. Cade, 873 P.2d 175 (Kan. 1994); Herskovits v. Group Health Co-op, 664 P.2d 474 (Wash. 1983).
- Delaney supra note 1, 873 P.2d at 178 (“The loss of chance theory arises in medical malpractice cases wherein the patient is suffering a pre-existing injury or illness which is aggravated by the alleged negligence of the doctor or health care provider to the extent that the patient dies, when without negligence there might have been a substantial chance of survival or the actual recovery is substantially less than it might have been absent the alleged malpractice.”).
- Short, supra note 1, 908 F.Supp. at 237.
- Roberts v. Ohio Permanente Medical Group, Inc., 668 N.E.2d 480 (Ohio 1996) (Plaintiff permitted to seek damages for lost chance of survival when even in absence of negligence, the plaintiff had only a 28% chance of survival).
- 128 N.H. 299 (1986).
- Id., 128 N.H. at 305.
- Id., 128 N.H. at 304 (“The plaintiff’s position, however, is contrary to the fundamental tenet of lost law that the plaintiff retains the ultimate burden of persuasion in negligence actions. . . . This rule ensures that defendants will not have to defend against improbable claims, and that defendants will not have to disprove the element of causation.”) But see Roberts, supra note 4, 668 N.E.2d at 488 (Recent advances in medical technology are meaningless unless diligently applied by physicians. Failure to permit loss of chance doctrine permits doctor to escape consequences of negligence while innocent patient is the loser).
- Smith v. Railroad, 87 N.H. 246, 258 (1935)(“Complaints of mental pain, when in issue, stand on the same ground as complaints of physical pain when that is in issue.”).
- 87 N.H. 246 (1935).
- Id., 87 N.H. at 258.
- Id. (“That the fear regarded a possibility rather than a probability would not alter the reality of the mental suffering unless the jury found the fear so fantastic as to make them believe that it was not in fact entertained.”).
- 74 N.H. 460 (1908).
- 80 N.H. 548 (1923).
- Id., 80 N.H. at 551.
- See e.g., Boryla v. Pash, 1998 WL 326818 (Colo. June 15, 1998); Petriello v. Kalman, 576 A.2d 474 (Conn. 1990) (Evidence that plaintiff 8% to 16% more likely to suffer future bowel obstruction sufficient to support a claim for fear of future bowel obstruction due to defendant’s negligence); Natale v. Gottlieb Memorial Hospital, 1997 Ill. App. LEXIS 672 (Sept. 19) (plaintiff may recover damages for emotional distress due to exposure to infectious disease even if the disease has not yet been contracted); Evers v. Dollinger, 471 A.2d 405 (N.J. 1984); Bossio v. Fiorillo, 620 N.Y.S.2d 596 (N.Y. App. 3rd Dept. 1994).
- 119 N.H. 647 (1979).
- 133 N.H. 299 (1990).
- Corso, supra note 16, 119 N.H. at 656.
- Thorpe, supra note 17, 133 N.H. at 303.
- Id. (“the analysis in Corso, however, was based on traditional negligence principles, . . . and is therefore applicable to this case. In addition, it is widely held in other jurisdictions that damages cannot be recovered for emotional distress unless the distress manifests itself physical symptoms.”).
- See Corso, supra note 16, 119 N.H. at 653 (“The emotional harm must be a painful mental experience with lasting effects. . . . All the States, except one, require that the psychic injury manifest itself by way of physical symptoms. . . . This latter requirement guarantees that the emotional injury is sufficiently serious to be afforded legal protection.”).
- Supra note 15.
- Id., 1998 WL 326818 at *2.
- See Boryla v. Pash, 937 P.2d 813 (Colo. App. 1996).
- Boryla, supra note 15, 1998 WL 326818 at *4.
- Id. See also Potter v. Firestone Tire & Rubber Co., 863 P.2d 765 (Cal. 1993) (plaintiffs in mass toxic tort case alleging fear of cancer, but no past or present physical injury must demonstrate both exposure to carcinogen and probability of future disease); Bossio v. Fiorillo, 620 N.Y.S.2d 596 (N.Y.App. 1994) (plaintiff need not demonstrate physical harm in addition to emotional harm but must elicit expert testimony to demonstrate a genuine and substantial harm proximately caused by defendant’s contact).