Facts
- JoAnn Alexander, age 60, was scheduled for hip surgery in June 1993 with D. Kevin Scheid, M.D., an orthopedic surgeon at Orthopaedics Indianapolis, Inc.
- A preoperative chest X-ray on June 24, 1993 reported a density in the upper right lobe and recommended comparison with prior films.
- The radiology report was available to Scheid’s office within days and was placed in JoAnn’s chart, but neither Scheid nor his office pursued follow-up.
- In spring 1994, JoAnn began coughing/spitting blood; a new chest X-ray showed a large upper-right-lobe mass.
- A May 1994 biopsy confirmed non-small-cell lung cancer; surgery could not fully remove the tumor because it had metastasized and was not curable.
- JoAnn underwent extensive chemotherapy and radiation; by about October 1994, the cancer went into remission.
- Plaintiff’s expert evidence indicated the cancer was likely Stage I in June 1993 (about a 70% five-year survival chance) but had progressed to Stage IIIA by May 1994 (about a 20% five-year survival chance).
- The Alexanders alleged the delayed follow-up reduced JoAnn’s chance of long-term survival and increased her risk of death; Jack Alexander asserted a derivative loss-of-consortium claim.
Issues
- Whether Indiana law permits recovery in medical malpractice for a present injury consisting of an increased risk of future harm or “loss of chance” of survival when the feared outcome has not occurred and may never occur.
- If recoverable, what measure of damages applies to the diminished chance of a better outcome.
- Whether JoAnn could pursue negligent infliction of emotional distress under Indiana’s impact requirement.
- Whether Jack’s loss-of-consortium claim could proceed as derivative of JoAnn’s claims.
Decision
- The Indiana Supreme Court reversed the trial court’s grant of summary judgment for the defendants and remanded.
- The court held that a medically supported reduction in the patient’s chance of long-term survival may constitute a present, compensable injury in medical malpractice.
- The court permitted use of probabilistic medical evidence to prove the extent of the lost chance and to support causation for that injury.
- The court held JoAnn’s emotional-distress claim was not barred as a matter of law because she suffered sufficient physical impact/injury and invasive treatment tied to the delayed diagnosis.
- The court held Jack’s loss-of-consortium claim survived because JoAnn’s underlying claims survived.
Legal Principles
- A malpractice plaintiff may recover present damages for a negligently caused, medically demonstrable loss of chance of survival (increased risk of future harm), even if the ultimate harm has not yet occurred.
- Probabilistic evidence may establish that negligence caused a reduction in the likelihood of cure or longer survival and may quantify the percentage of chance lost.
- Damages for loss of chance should reflect the value of the adverse outcome discounted by the percentage reduction in the chance of avoiding that outcome, rather than awarding the full value of the ultimate harm without discount.
- Indiana’s impact requirement for negligent infliction of emotional distress can be satisfied by physical injury and invasive medical treatment associated with the malpractice-related deterioration in condition.
- Loss of consortium is derivative and may proceed when the injured spouse has viable claims for compensable physical and emotional injuries.
Conclusion
The court held that a significant, evidence-based reduction in a patient’s chance of long-term survival is a present compensable injury in Indiana medical-malpractice law, that damages may be awarded in proportion to the chance lost, and that related emotional-distress and derivative consortium claims should not be dismissed on summary judgment where the plaintiff suffered physical injury and substantial treatment stemming from the delayed diagnosis.