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Decreased Chance of Remaining Cancer-Free Due to Delayed Discovery of Breast Cancer Is Not Compensable


After discovering, through self-examination, a breast lump that turned out to be malignant, the patient sued her gynecologist. She alleged that the gynecologist had negligently failed to discover the lump during examinations six and eighteen months earlier and had failed to recommend a mammogram at either appointment. The plaintiff underwent treatment that included radiation, a lumpectomy, chemotherapy, and the removal of her ovaries (undertaken on physician’s advice, to mitigate the results of the chemotherapy.)

 

In her action, the plaintiff claimed that had the lump been discovered sooner, she could have avoided the need for chemotherapy and removal of her ovaries. Further, the plaintiff’s chance of long-term survival was now 70-75%; had the discovery come sooner her chance of survival would be 80-85%. She sought damages for 1) emotional distress due to an increased fear of cancer recurrence or death; 2) chemotherapy treatment and the surgical removal of her ovaries; 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.

 

The trial court granted summary judgment for the gynecologist on the ground that the plaintiff was currently disease-free and that it was more probable than not (i.e., seventy to seventy-five percent likely) that she would remain disease-free.

 

On appeal, the appellate court affirmed the summary judgment with respect to damages for decreased chance of remaining cancer free and future treatment for potential recurrences but reversed the judgment with respect to damages for emotional distress, chemotherapy and removal of the ovaries.

 

The appellate court held that neither a decreased chance of remaining cancer free nor lost chance for a better medical result due to professional negligence are compensable injuries in Kentucky. It noted that 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), a compensable injury, while a minority of jurisdictions do not. Kentucky is in the minority.

 

Additionally, Kentucky law allows a plaintiff to recover for damages only where the fact of damage is reasonably certain. Since, according to the evidence, the plaintiff was currently cancer-free and at least seventy percent likely to remain so and require no future medical treatment, damages for future treatment were not reasonably certain to arise.

 

The appellate court noted that the plaintiff was entitled to attempt to prove her emotional damages were greater as the result of an increased fear of recurrence of the cancer, although proof would be difficult. These damages are recoverable, not as a separate cause of action, but as an element of personal injury damages. Whether she suffered damage resulting from her chemotherapy treatment and the surgical removal of her ovaries in anticipation of chemotherapy was a question for the jury.

 

See: Gill v. Burress, 2012 WL 1231967 (Ky.App. Apr 13, 2012) (not designated for publication).

 

 

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