Boryla v. Pash

• Decision Date: 25 July 1996
• Docket Number: No. 94CA1157,94CA1157
• Citation: 937 P.2d 813
• Parties: Gina (Gigi) BORYLA, Plaintiff-Appellee and Cross-Appellant, v. Robert M. PASH, M.D., Defendant-Appellant and Cross-Appellee. . V
• Court: Colorado Court of Appeals

Page 813

937 P.2d 813

Gina (Gigi) BORYLA, Plaintiff-Appellee and Cross-Appellant, v. Robert M. PASH, M.D., Defendant-Appellant and Cross-Appellee.

No. 94CA1157.

Colorado Court of Appeals Div. V.

July 25, 1996.

Rehearing Denied Sept. 26, 1996.

Certiorari Granted May 19, 1997.

Grimshaw & Harring, P.C., Lisa K. Norberg, William J. Brady, Denver, for Plaintiff-Appellee and Cross-Appellant.

Kennedy & Christopher, P.C., John R. Mann, Elizabeth A. Starrs, Douglas J. Cox, Denver, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge CASEBOLT.

In this medical malpractice action, defendant, Robert M. Pash, appeals the judgment entered upon a jury verdict awarding plaintiff, Gina Boryla, $220,000. Boryla cross-appeals, requesting additional prejudgment interest and costs. We affirm in part and reverse in part.

Pash negligently diagnosed a malignant lump in Boryla's breast as being benign, resulting in a 92-day delay in detecting her breast cancer. After the cancer was correctly diagnosed, Boryla underwent a radical mastectomy and removal of her lymph nodes. Boryla concedes that this operation would have been necessary even if there had been no delay in the detection of the cancer. The operation and subsequent chemotherapy were successful in removing the cancer, and as of the date of trial four years after the misdiagnosis, Boryla was cancer free.

In her complaint, Boryla alleged that she was exposed to an "increased risk of recurrence" of cancer as a result of Pash's negligence. She sought damages for:

i) past, present and future pain, suffering and discomfort, both physical and mental;

ii) severe and at times debilitating emotional distress, including fear of an increased risk of recurrence of cancer;

iii) loss of enjoyment of life, past, present and future;

iv) loss of time; and

v) reasonable and necessary medical and other incidental and out-of-pocket expenses.

The principal issue at trial was the effect of the delay in the detection of the cancer upon the risk that Boryla would experience a recurrence of cancer and also whether, as a result of the delay in diagnosis, she suffered a reasonable fear of increased risk of developing cancer in the future. While conceding that the delay had no effect on her treatment or recovery from cancer, Boryla nevertheless contended that, during the delay, there was an increase in the number of cancer cells in her body because of growth in the tumor and, as a result, there was an increased likelihood that her cancer would recur. Thus, she contended, she was entitled to damages for that increase and fear of that risk.

After completion of Boryla's case-in-chief, Pash moved for a directed verdict, asserting that Boryla had failed to prove physical manifestations or mental illness under Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978), and that Boryla had failed to prove entitlement to damages for an increased risk of cancer or fear of such an increased risk. The trial court reserved ruling until after the verdict.

The trial court instructed the jury to award Boryla damages for noneconomic losses, including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life caused by an increased risk of cancer that resulted from an increase of cancer cells in her body, together with economic losses for expenses of counseling and therapeutic services. The jury awarded no economic damages, but did award $220,000 for noneconomic losses.

Pash later renewed his motion for directed verdict and filed a motion for judgment notwithstanding the verdict, both of which were denied. This appeal followed.

I.

Pash asserts that, as a matter of law, Boryla cannot recover damages for an increased risk of cancer recurrence because she failed to prove to a reasonable medical probability that the future harm was more likely than not to occur. Therefore, he contends, the trial court erroneously failed to grant his motion for directed verdict and motion for judgment notwithstanding the verdict on this issue. We agree.

The essential nature of a damage claim predicated on enhanced risk of disease is a claim for damages based on prospective injury. Such a claim is conceptually exemplified by a personal injury plaintiff with a damaged knee who seeks to recover damages for the prospective onset of an arthritic condition that may result from the knee injury. See Mauro v. Raymark Industries, 116 N.J. 126, 561 A.2d 257 (1989).

Traditionally, claims for increased risk of cancer damages proximately caused by a defendant's negligence have not been allowed unless there is sufficient evidence that occurrence of the future disease is reasonably probable. See Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir.1988) (predicted future disease must be reasonably certain before such damages may be recovered); Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir.1986) (future injury must be shown to be a reasonable medical certainty in order to be compensable); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir.1985) (plaintiff must show that future injury will occur by a preponderance of the evidence in order to recover); Mauro v. Raymark Industries, supra; Ayers v. Township of Jackson, 189 N.J.Super. 561, 461 A.2d 184 (Law Div.1983) (damages for prospective consequence of negligence recoverable if reasonable probability injury will occur); Restatement (Second) of Torts § 912 comment e (1979) (injured person seeking to recover for harms that may result in the future is entitled to damages based on the probability that harm will ensue and upon its probable seriousness). See also Day v. NLO, 851 F.Supp. 869 (S.D.Ohio 1994); Anderson v. W.R. Grace & Co., 628 F.Supp. 1219 (D.Mass.1986).

The rationale for this standard when such damage claims are involved is that permitting recovery of increased risk of cancer damages should not be based upon speculation. Otherwise, recovery would violate the general precept that an injury must be shown with reasonable certainty and not be left to conjecture. See Cantrell v. GAF Corp., 999 F.2d 1007 (6th Cir.1993); Schweitzer v. Consolidated Rail Corp., 758 F.2d 936 (3d Cir.1985); Ayers v. Township of Jackson, 106 N.J. 557, 525 A.2d 287 (1987); Lavelle v. Owens-Corning Fiberglas Corp., 30 Ohio Misc.2d 11, 507 N.E.2d 476 (1987). See also W. Prosser & P. Keeton, Prosser & Keeton on Torts § 30 (5th ed.1984) (the threat of future harm, not yet realized, is not enough).

Likewise, in Colorado, damages for prospective and anticipated consequences are only recoverable when there is a "reasonable certainty" that a future injury will arise. Cookman v. Caldwell, 64 Colo. 206, 208, 170 P. 952, 953 (1918); see Barter Machinery & Supply Co. v. Muchow, 169 Colo. 100, 453 P.2d 804 (1969) (plaintiff must prove future harm is more likely than not to happen before damages for future harm may be awarded). See also Brittis v. Freemon, 34 Colo.App. 348, 527 P.2d 1175 (1974)(to recover damages for prospective loss, injury must be probable).

A trial court is obligated to present proper instructions in support of a party's theory of the case when there is evidence in the record upon which to base such instructions. Martinez v. Shapland, 833 P.2d 837 (Colo.App.1992). If there is insufficient evidence to support a particular theory, however, it is error for the trial court to submit an instruction concerning such theory. See Koehn v. R.D. Werner Co., 809 P.2d 1045 (Colo.App.1990).

Here, viewing the evidence in the light most favorable to the verdict, there was no evidence that any cancer recurrence was more likely than not. Consequently, Boryla's claim for damages due to an increased risk of cancer recurrence should not have been presented to the jury. Indeed, the trial court stated that it intended to preclude Boryla from obtaining a recovery for an enhanced risk of cancer in the future. However, the record reveals that the trial court did, in fact, instruct the jury as to damages for the increased risk of cancer. The court gave an instruction which stated, in pertinent part:

In determining such damages you shall consider the following:

1. any noneconomic losses or injuries incurred to the present time, or which will probably be incurred in the future including: pain and suffering; inconvenience; emotional stress; and impairment of the quality of life caused by an increased risk of cancer due to an increase of cancer cells in her body.

2. any economic loss consisting of expenses for counseling and therapeutic services.

Thus, by this instruction, the court incorrectly allowed the jury to award damages for the increased risk.

Accordingly, we agree that the trial court should have directed a verdict on this issue and that the instruction concerning damages was erroneous.

II.

Pash next contends that, for the same reasons set forth above, Boryla cannot recover emotional distress damages for fear of an increased risk of harm that is not likely to occur. Essentially, Pash contends that a claim for damages due to fear of an increased risk of cancer and a claim for damages because of the increased risk itself are indistinguishable and that both require the occurrence of the disease in the future to be more likely than not. Therefore, Pash reasons, because Boryla presented no evidence that a cancer recurrence was more likely than not, Boryla may not recover damages for any fear of a recurrence. Under the circumstances here, we disagree.

While damages for increase in the risk of contracting a disease in the future may or may not be recoverable as noted above, nevertheless, a present fear or anxiety induced by the possibility of contracting a disease constitutes an existing component of mental anguish and may be included in recoverable damages. See Cantrell v. GAF Corp, supra (plaintiff can recover for present fear that he will contract cancer even though he cannot recover for the increased risk of cancer in the future); Hagerty v. L & L Marine...