Alexander v. Scheid

• Decision Date: 03 April 2000
• Docket Number: No. 49S05-0004-CV-231.,49S05-0004-CV-231.
• Citation: 726 N.E.2d 272
• Parties: JoAnn ALEXANDER and Jack Alexander, Appellants (Plaintiffs Below), v. D. Kevin SCHEID, M.D. and Orthopaedics Indianapolis, Inc., Appellees (Defendants Below).
• Court: Indiana Supreme Court

726 N.E.2d 272

JoAnn ALEXANDER and Jack Alexander, Appellants (Plaintiffs Below), v. D. Kevin SCHEID, M.D. and Orthopaedics Indianapolis, Inc., Appellees (Defendants Below).

No. 49S05-0004-CV-231.

Supreme Court of Indiana.

April 3, 2000.

Morris L. Klapper, G.R. Parish, Jr., Indianapolis, Indiana, Attorneys for Appellants.

Kevin C. Schiferl, Sandra Boyd Williams, Indianapolis, Indiana, Attorneys for Appellees.

ON PETITION TO TRANSFER

BOEHM, Justice.

The plaintiffs are a married couple who allege medical malpractice in the failure to follow up on a chest x-ray that revealed a nodule in the wife's lung. When the complaint was filed, the wife had incurred an increased risk of fatal cancer as a result of the delay in diagnosis, but was in remission. This case addresses whether a claim for medical malpractice may be asserted if the injury has not come to its full potential, and may never do so. We conclude that such a claim may be pursued under the circumstances of this case.

Factual Background

In June of 1993, sixty year-old JoAnn Alexander was scheduled for hip surgery by Dr. D. Kevin Scheid, an orthopedic surgeon at Orthopaedics Indianapolis, Inc. (Orthopaedics). Scheid ordered a chest x-ray, which was required at his office for patients over the age of sixty to ensure the strength of their lungs to undergo anesthesia. The x-ray was administered on the 24th of that month and revealed a density in the upper right lobe of her right lung. The neuroradiologist generated a report of the x-ray and sent a hard copy of the report to Scheid's office. He also recorded the results of the x-ray into a phone dictating service, which made them available to Scheid's office for approximately four to five days. The report of the results was placed in JoAnn's chart at Scheid's office, but neither Scheid nor his office took any action, despite the fact that the report noted a "density ... in the upper lobe" and concluded that "comparison with old films would be of value."

In the spring of 1994, JoAnn began spitting up blood and went to another doctor. A second chest x-ray revealed a large mass on the upper right lobe of the right lung. In May, after a biopsy, JoAnn was diagnosed with non-small cell lung cancer. Efforts to remove the tumor were not completely successful, and, because the cancer had metastasized to one lymph node in her chest and to the bronchial margin, it was not curable. After JoAnn underwent extensive chemotherapy and radiation treatment, her condition went into remission in approximately October 1994.

Procedural History

Pursuant to the Medical Malpractice Act,¹ on December 22, 1994, the Alexanders filed a proposed complaint with the Indiana Department of Insurance. The Medical Review Panel issued its opinion on August 26, 1996, unanimously finding that:

(1) The evidence supports the conclusion that Defendants D. Kevin Scheid, M.D. and Orthopaedics Indianapolis, Inc. failed to comply with the appropriate standard of care as charged in the Complaint.

(2) The conduct complained of was a factor of the resultant damages in that the failure to follow-up on the June 24, 1993 x-ray report resulted in a 10-month delay of the diagnosis of Plaintiff's lung cancer.

On October 8, 1996, the Alexanders filed an amended complaint in Marion Superior Court. In Count I, they alleged that Scheid and Orthopaedics were negligent in failing to follow up on JoAnn's chest x-ray, and that this negligence resulted in the following harms to JoAnn: (1) "serious and permanent injuries necessitating extensive additional medical care"; (2) an increased risk of harm and decreased chance for long-term survival (later dubbed "loss of chance"), including the loss of "the possibility of successful removal of the tumor"; (3) "the incurrence of substantial medical expenses" and "loss of earning capacity"; and (4) severe emotional distress. In Count II, Jack Alexander alleged loss of consortium. JoAnn asserts that in the months following her first x-ray but preceding her diagnosis with lung cancer her injuries included: (1) deterioration of her overall health, including exhaustion, pneumonia-like symptoms, and feeling "run-down" in general; (2) spitting up blood; (3) an exacerbation of cancer, i.e., an increase in the size of the tumor and metastasis to one lymph node and the bronchial margin, resulting in cancer that is either incurable or at a minimum has a significantly lower probability of being treatable; and (4) damage to healthy lung tissue and lung collapse.

Three doctors were deposed regarding JoAnn's comparative prognoses in June 1993 and May 1994. In capsule form, they presented admissible evidence that (1) JoAnn's cancer was likely in Stage I at the time of the first x-ray but had advanced to Stage IIIa before it was diagnosed; and (2) the probability of her long-term survival was significantly reduced over that period of time.² Scheid and Orthopaedics moved for summary judgment, arguing that, in view of JoAnn's remission, JoAnn had suffered no present compensable injury, and therefore, as a matter of law, had no claim. The trial court agreed and the Court of Appeals affirmed, concluding that: (1) Section 323 of the Restatement of Torts does not allow recovery for wrongs that increase the risk of harm unless the harm has come to pass; (2) JoAnn was not presently injured physically; and (3) in the absence of a physical injury, the modified impact rule does not apply to allow JoAnn to recover for negligent infliction of emotional distress. See Alexander v. Scheid, 696 N.E.2d 491 (Ind.Ct.App.1998) (mem.).

This case raises four questions. (1) Does Indiana law permit JoAnn to recover for an increased risk of incurring a life shortening disease under the "loss of chance" doctrine or otherwise? (2) If so, what is the appropriate measure of damages? (3) Has JoAnn suffered an impact that would allow her to recover for negligent infliction of emotional distress under the "modified impact rule?" (4) May JoAnn maintain a cause of action for the aggravation to date of her lung cancer?

Standard of Review

On appeal, the standard of review of a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Shell Oil, 705 N.E.2d at 983-84. The review of a summary judgment motion is limited to those materials designated to the trial court. See T.R. 56(H); see also Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993)

. Here, the designated evidence includes depositions of physicians that establish the factual predicates on which the Alexanders rely to defeat summary judgment.

I. Decreased Life Expectancy

A. Issues Raised under the Rubric "Loss of Chance"

"Loss of chance," also often referred to as "increased risk of harm" is usually traced back to this frequently quoted passage from Hicks v. United States:

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 was any substantial possibility of survival and the defendant has destroyed it, he is answerable.

368 F.2d 626, 632 (4th Cir.1966) (quoted in Mayhue v. Sparkman, 653 N.E.2d 1384, 1387 (Ind.1995)). The term "loss of chance" has been applied to a number of related situations. These include: (1) an already ill patient suffers a complete elimination of an insubstantial or substantial probability of recovery from a life-threatening disease or condition³; (2) a patient survives, but has suffered a reduced chance for a better result or for complete recovery⁴; and (3) a person incurs an increased risk of future harm, but has no current illness or injury.⁵ The first of these was addressed by this Court in Mayhue. See 653 N.E.2d at 1384. The Alexanders now present the second, which, like the first, typically arises in the context of a claim of negligent health care. The third commonly arises in connection with claims of exposure to toxic substances, where no adverse results have yet emerged.

These cases pose a number of separate but sometimes interrelated issues. First, many courts initially address the issue as one of causation. Mayhue took the view that under traditional medical malpractice theory, when a patient's chance of recovering from a disease is already less than fifty percent, it can never be said that the doctor's malpractice was the proximate cause of the ultimate death. See id. at 1387. Accordingly, recovery under traditional tort standards of causation is barred under those circumstances. This approach views the injury as the ultimate adverse result of the disease, which may be death, but may also be other conditions (paralysis, blindness, etc.). Just as it is difficult to find causation where the harm is already more than likely to occur, it seems odd to speak of a causal relationship between a defendant's act or omission and an as yet unknown ultimate result. Although an act of malpractice may reduce a patient's chances for survival or for obtaining a better result, this is simply a statistical proposition based on the known experience of a group of persons thought to be similarly situated (in JoAnn's case, persons with four centimeter nodes in the lungs). In any given case, however, the plaintiff's ultimate injury either does or does not occur. Thus, if full recovery is awarded based on an appraisal of causation (or greater than fifty percent probability), the plaintiff who later beats the odds may be overcompensated for an injury that never ultimately emerges. Similarl...