Andersen v. Brigham Young Univ.

UNITED STATES COURT OF APPEALS
Filed 6/27/96
FOR THE TENTH CIRCUIT

NELS ANDERSEN,

Plaintiff-Appellant,

v. No. 95-4068
(D.C. No. 93-CV-61-G)
BRIGHAM YOUNG UNIVERSITY, a (D. Utah)
Utah corporation; JOSEPH C.
BINGHAM, M.D.,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before EBEL, BARRETT, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal.

See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

*
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of 10th Cir. R. 36.3.
 Plaintiff Nels Andersen appeals the district court’s grant of summary judgment to

defendants Brigham Young University (BYU) and Joseph C. Bingham, M.D., on his medical

malpractice claims. Mr. Andersen claimed that Dr. Bingham’s misdiagnosis of his cancer

at its early stages has caused him additional injury and a reduced chance of survival. The

district court held that Utah state law did not recognize a “loss of chance” theory of recovery,

and granted defendants’ summary judgment motion. We affirm.

I. Standard of Review

We review the grant of summary judgment de novo, applying the same legal standard

used by the district court. James v. Sears, Roebuck & Co., 21 F.3d 989, 997-98 (10th Cir.

1994). Summary judgment is proper when “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Although it is not clear whether Mr. Andersen is contending on appeal that substantial issues

of material fact exist precluding summary judgment, “it is our duty to examine the record on

appeal to determine whether any genuine issue of material fact pertinent to the ruling remains

and, if not, whether the district court properly applied the substantive law.” American

Coleman Co. v. Intrawest Bank of Southglenn, N.A., 887 F.2d 1382, 1384 (10th Cir. 1989).

When sitting in diversity, the district court applies the substantive law of the forum

state unless a federal statute or constitutional provision directs otherwise. Salve Regina

College v. Russell, 499 U.S. 225, 226 (1991). We review a district court’s determination of

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state law de novo, affording no deference to the court’s conclusions. Id. at 238-39; Occusafe,

Inc. v. EG & G Rocky Flats, Inc., 54 F.3d 618, 621 (10th Cir. 1995).

II. Facts

On February 6, 1990, Mr. Andersen, while a student at BYU, sought treatment at the

BYU health center for fevers, night sweats, and a persistent cough. He was seen by Dr.

Bingham who suspected than Mr. Andersen was suffering from a “viral syndrome.” Dr.

Bingham asked Mr. Andersen to return the following week if he was not feeling better. Mr.

Andersen did not return to the health center until February 23, 1990, complaining of fever,

lethargy, a red throat, and mucous drainage. Dr. Bingham prescribed antibiotics and

requested that Mr. Andersen return the following week for blood tests.

On March 12, 1990, Mr. Andersen again visited the health center indicating that the

antibiotic had helped, but he was still suffering intermittent fever. Dr. Bingham ordered

blood tests, prescribed another antibiotic, and requested Mr. Andersen to return if his

symptoms persisted. On April 18, 1990, Mr. Andersen last contacted Dr. Bingham by

telephone, indicating a decrease in his symptoms. Dr. Bingham urged Mr. Andersen to

revisit the health center if his symptoms returned. Soon after this telephone contact, Mr.

Andersen returned to his home in California for summer vacation.

Mr. Andersen remained free of symptoms until early August 1990, when he presented

himself at the UCLA medical center emergency room suffering a high fever and vomiting.

Following several weeks of extensive testing, he was eventually referred to the

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hematology/oncology department of the medical center where it was determined that he had

Hodgkin’s Disease, stage III-B.1 Under the care of Dr. Gary Schiller, Mr. Andersen was

treated with chemotherapy. Following completion of the chemotherapy, Mr. Andersen

remained free of the disease for twenty-two months, at which time additional disease was

discovered in his abdomen, necessitating a second round of chemotherapy and x-ray

treatment. At the time he filed his complaint, Mr. Andersen remained disease free, but

claimed that Dr. Bingham’s failure to diagnose the disease at an earlier stage seriously

compromised his chance of long-term, disease-free survival. Dr. Schiller opined that, based

on statistics of patients with Hodgkin’s Disease who had been treated with chemotherapy,

Mr. Andersen has a sixty percent chance of long-term, disease-free survival, whereas, if the

disease had been discovered at an earlier stage, he would have had an eighty to ninety percent

chance.

1
As described by the district court in its opinion,

Hodgkin’s Disease is a variety of lymphoma or cancer, which is divided into
“stages” for purposes of prognosis. In Stage I, the disease is confined to one
group of lymph nodules; in Stage II, the disease is confined to more than one
nodule group, all on one side of the diaphragm; in Stage III, the disease is in
multiple nodule groups on both sides of the diaphragm; Stage IV includes any
involvement of bone marrow or the liver. The “stages” are also classified into
subgroups, Subgroup A being asymptomatic, and Subgroup B exhibiting a
variety of symptoms.

Andersen v. Brigham Young Univ., 879 F. Supp. 1124, 1126 n.1 (D. Utah 1995).

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 Mr. Andersen’s complaint claimed damages due to (1) defendants’ negligence in

failing to diagnose the Hodgkin’s at an earlier stage, thus reducing his long-term chance for

disease-free survival, and (2) negligent infliction of emotional distress. The defendants

moved for summary judgment, asserting that Mr. Andersen did not state a prima facie case

of negligence under either claim because he had not established an injury in fact.

In a published opinion, Andersen v. Brigham Young University, 879 F. Supp. 1124

(D. Utah 1995), the district court granted summary judgment, holding that Mr. Andersen’s

only claimed injury in fact, a reduction in his statistical chance of long-term, disease-free

survival, did not constitute a separate cause of action redressable under Utah law. Id. at

1130. It also granted summary judgment on Mr. Andersen’s claim of negligent infliction of

emotional distress due to the lack of some present physical illness or injury attributable to

negligent acts of the defendants. Id. On appeal, Mr. Andersen does not challenge the district

court’s decision on his negligent infliction of emotional distress claim, but argues only that

Utah would, or should, recognize a separate cause of action for “lost chance” under the facts

of this case, and, in the alternative, that the district court should have dismissed his claims

without prejudice to refile in the event he becomes ill or dies in the future.

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 III. Discussion

To establish a prima facie case of medical malpractice in Utah, a plaintiff must

establish “‘(1) the standard of care by which the doctor’s conduct is to be measured, (2)

breach of that standard by the doctor, and (3) injury proximately caused by the doctor’s

negligence.’” Dikeou v. Osborn, 881 P.2d 943, 946 (Utah Ct. App. 1994)(quoting Chadwick

v. Nielsen, 763 P.2d 817, 821 (Utah Ct. App. 1988)). A failure to establish any one of the

elements justifies the grant of summary judgment to defendants. Id. The question on appeal,

and the specific legal question addressed by the district court, is whether Mr. Andersen’s

alleged injury, a reduced chance of long-term, disease-free survival, is cognizable as

satisfying the required element of injury in fact for purposes of establishing a prima facie

case of negligence in Utah. The district court held that it did not, and we agree.

Mr. Andersen argues that the Utah Court of Appeals’ case of George v. LDS Hospital,

797 P.2d 1117 (Utah Ct. App. 1990), cert. denied, 836 P.2d 1383 (Utah 1991), indicates that

Utah would recognize a loss of chance cause of action in this case. In George, a team of

nurses failed to inform doctors regarding the deteriorating condition of a patient, and the

patient died. A jury found that although the omissions of the nurses were negligent, these

omissions were not the proximate cause of the decedent’s death. The Utah Court of Appeals

reversed, based on an incorrect jury instruction stating that the jury could only find one

proximate cause of death. Id. at 1122. Relying on several “lost chance” cases in other

jurisdictions, the George court held that where, but for the negligence, the chance of saving

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the life of the decedent would be increased, a jury could find that the negligence was a

proximate cause of death. Id.

The district court found George to be distinguishable because, in George, an actual

injury was suffered when the patient died. Andersen, 879 F. Supp. at 1129. The court

further determined that George did not serve “to recognize or create a new cause of action

for mere reduction of statistical chances for survival.”2 Id.

Here, the district court found Hansen v. Mountain Fuel Supply Co., 858 P.2d 970

(Utah 1993), to be more instructive on the question. In Hansen, the court considered claims

brought by plaintiffs who had been exposed to asbestos. At the time of trial, the plaintiffs

had no compensable injuries or illnesses which could be considered attributable to asbestos

exposure. The court affirmed the grant of summary judgment, holding that the existence of

actual injury is required as a basis for recovery in negligence. Id. at 973.

2
In his brief, Mr. Andersen discusses the various standards of recovery on claims of
lost chance which have been recognized in other states. As determined by the district court,
however, the majority of the cases analyzed by Mr. Andersen were concerned with the
element of causation, and not with the existence of injury. See, e.g., James v. United States,
483 F. Supp. 581, 585 (N.D. Cal. 1980)(holding that delayed diagnosis or treatment which
diminished the effectiveness of treatment was sufficient to establish proximate cause); Hicks
v. United States, 368 F.2d 626, 632-33 (4th Cir. 1966)(holding that delay in operation
nullified chance of recovery and was proximate cause of death)(applying Virginia law); Goff
v. Doctors General Hosp., 333 P.2d 29, 33 (Cal. Ct. App. 1958)(holding that whether nurses’
failure to timely notify doctor of patient’s condition was a proximate cause of death was a
question for the jury); Hamil v. Bashline, 392 A.2d 1280, 1289 (Pa. 1978)(finding liability
where negligence caused an increased risk of harm resulting in death).

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 Mr. Andersen argues that the plaintiffs in Hansen were making only guesses as to the

possibility of future injury due to asbestos exposure, while he presented statistical evidence

that his chance of long-term, disease-free survival was diminished by Dr. Bingham’s failure

to diagnose his Hodgkin’s at an earlier stage. It is undisputed that, at the time of trial, Mr.

Andersen was disease-free with his only existing injury being the diminished chance of long-

term, disease-free survival. Dr. Schiller’s prediction regarding Mr. Andersen’s prognosis,

although statistically based, was still only a possibility of future injury, and as such, only a

a slightly better educated guess than that of the plaintiffs in Hansen.

It is clear that merely placing Mr. Andersen in a class of persons who, because of

delay in diagnosis, are subject to an increased risk of future injury, does not serve to create

a compensable injury under Utah law. Mr. Andersen has failed to establish an existing injury

as was required in Hansen, see id., and therefore, the district court’s grant of summary

judgment to defendants was correct.

Finally, Mr. Andersen argues that the district court should have dismissed his action

without prejudice, allowing him leave to refile in the event he does become ill again or dies.

In support of his contention, Mr. Andersen relies on Hansen, wherein the Utah Supreme

Court affirmed a grant of summary judgment based on plaintiffs’ lack of actual, present

injury. Id. In so doing, the Hansen court stated that “pursuant to the discovery rule,” the

plaintiffs would not be barred by the statute of limitations from bringing another action in

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the event they would develop future injury or illness. Id. Mr. Andersen’s interpretation

notwithstanding, this does not translate as a dismissal without prejudice.

Here, as we have concluded, we find no error in the district court’s ruling granting

summary judgment to defendants. As in Hansen, Mr. Andersen may bring another action if

and when he develops a recognizable injury. See id. (“Plaintiffs may, of course, bring

another action if and when they do develop a serious disease as a result of their exposure.”).

However, Mr. Andersen is foreclosed from making further claims of lost chance based on

appellee’s conduct.

Defendants moved to strike portions of Mr. Andersen’s brief and appendix as

containing material not before the district court. Because none of the material that

defendants find objectionable was considered in the disposition of this case, the motion to

strike is DENIED. Mr. Andersen’s motion to attach supplemental material is GRANTED.

The judgment of the United States District Court for the District of Utah, granting

defendants’ motion for summary judgment, is AFFIRMED.

Entered for the Court

James E. Barrett
Senior Circuit Judge

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