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Alexander v. Scheid

Court: Indiana Supreme Court
Date filed: 2000-04-03
Citations: 726 N.E.2d 272
Copy Citations
34 Citing Cases
Combined Opinion
ATTORNEYS FOR APPELLANTS

Morris L. Klapper
G.R. Parish, Jr.
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES

Kevin C. Schiferl
Sandra Boyd Williams
Indianapolis, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

JOANN ALEXANDER and          )
JACK ALEXANDER,              )
                                  )
      Appellants (Plaintiffs Below),    )     Indiana Supreme Court
                                  )     Cause No. 49S05-0004-CV-231
            v.                    )
                                  )
D. KEVIN SCHEID, M.D. and         )     Indiana Court of Appeals
ORTHOPAEDICS INDIANAPOLIS,   )    Cause No. 49A05-9710-CV-431
INC.,                             )
                                  )
      Appellees (Defendants Below).     )
__________________________________________________________________

                    APPEAL FROM THE MARION SUPERIOR COURT
                   The Honorable Patrick L. McCarty, Judge
                        Cause No. 49D03-9612-CT-1631
__________________________________________________________________


                           ON PETITION TO TRANSFER

__________________________________________________________________

                                April 3, 2000
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, No. 49A05-9710-CV-431 (Ind. Ct.  App.  Apr.  27,  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  condition[3];
(2) a patient survives, but has suffered  a  reduced  chance  for  a  better
result or for complete recovery[4]; 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.  Similarly, the  plaintiff  who  has  a  less
than fifty percent chance, but nonetheless does  ultimately  bear  the  full
brunt of the disease, may be undercompensated.
      One way to deal with this problem  is  to  permit  multiple  suits  as
different injuries develop,[6] but that approach has  several  shortcomings,
including the generation of multiple litigation and the attendant  costs  of
that litigation.[7]   Delaying suit  is  another  possibility,[8]  but  that
fails altogether to compensate for the very  real  pain  and  distress  that
accompanies  an  uncertain  but  probable  serious  or  fatal  condition.[9]
Delaying suit for  medical  malpractice  in  Indiana  also  has  a  distinct
disadvantage.  Given the occurrence-based limitations period  for  Indiana’s
medical malpractice claims and our holding  that  the  Indiana  Constitution
prohibits barring only claims that have accrued but  are  unknowable,[10]  a
person in JoAnn’s shoes may  be  forever  barred  if  the  claim  cannot  be
presented until the disease recurs.
      These factors argue in favor of permitting  the  Alexanders  to  bring
their claims now.  If this  is  to  be  done,  however,  there  are  further
complexities to address.  First, there is disagreement as  to  the  elements
of recoverable damages.  Some courts purporting to address “loss of  chance”
allow recovery  only  for  medical  expenses,  lost  earnings,  or  loss  of
consortium, see, e.g., Roberts v. Ohio Permanente Medical Group,  Inc.,  668
N.E.2d 480, 484-85 (Ohio  1996)  (in  loss  of  chance  cases,  damages  are
recoverable  for  underlying  injury  or  death).   Others  have  explicitly
allowed recovery for what the doctrine’s name  suggests:  the  loss  of  the
chance itself, see United States v. Anderson, 669 A.2d 73,  76  (Del.  1995)
(citing cases).  If a lost chance is to be compensable, its  valuation  also
presents issues.  Damages may  be  assessed  for  the  full  amount  of  the
injury, if the full extent of the physical injury  is  already  known.   See
Weymers v. Khera, 563 N.W.2d  647,  653  (Mich.  1997)  (citing  cases  from
jurisdictions that assess full damages when plaintiff has  established  that
defendant’s negligence increased plaintiff’s risk of  harm).   Other  courts
have attempted to assess the damages in proportion to  the  likelihood  that
the doctor’s negligence caused  (or  will  cause)  an  injury.   See,  e.g.,
McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467,  475-76  (Okla.  1987)
(holding,  where  decedent’s  fatal  heart  attack   was   misdiagnosed   as
gastritis,  that  loss  of  chance  damages  must  be  limited   to   “those
proximately caused from a defendant’s breach of duty”).
      Finally, if damages are awardable for the increased risk of an  injury
that has not yet occurred, the court faces the difficult task of  putting  a
dollar amount on an  as  yet  unknown  loss.   The  Alexanders’  claim  here
presents that issue as to the ultimate recurrence of the cancer.  They  also
assert current injury in the form of the  cancer’s  metastasizing,  and  the
anxiety generated by the prospect of future recurrence.
      B. Mayhue v. Sparkman
      In Mayhue, this Court held that Section  323  of  the  Restatement  of
Torts was the appropriate mode of analysis of a claim for injuries that  had
been sustained (the patient had died), but which were more likely  than  not
to have occurred even in  the  absence  of  any  negligence  (the  patient’s
ultimate injury was more probable  than  not  before  treatment).   See  653
N.E.2d at 1388-89.  Section 323, “Negligent Performance  of  Undertaking  to
Render Services,” states:
       One who undertakes, gratuitously  or  for  consideration,  to  render
       services to another which he should recognize as  necessary  for  the
       protection of the other’s person or things, is subject  to  liability
       to the other for physical harm resulting from his failure to exercise
       reasonable care to perform his undertaking if,
           (a) his failure to exercise reasonable care increases  the  risk
       of such harm, or
           (b) the harm is suffered because of the  other’s  reliance  upon
       the undertaking.

      Specifically, under Section  323,  a  jury  may  consider,  “once  the
plaintiff proves negligence and an increase in the  risk  of  harm,  .  .  .
whether the medical malpractice was a  substantial  factor  in  causing  the
harm  suffered  by  the  plaintiff.”   Id.  at   1388.       Section   323’s
formulation, by its terms, presupposes that physical harm has resulted  from
the negligent care.  In Mayhue, because the patient had died,  the  ultimate
physical harm was already  known.   We  held  that  the  plaintiff’s  spouse
could, under  Section  323,  maintain  his  cause  of  action  for  loss  of
consortium even though the experts  agreed  that,  in  the  absence  of  the
defendant’s  negligence,  it  was  still  more  likely  than  not  that  the
plaintiff would have died.  See id. at 1387-89.   We  distinguished  Section
323  from  what  was  dubbed  a  “pure  loss  of  chance”  doctrine,   which
compensates for the loss of  chance  itself  and  not  for  the  plaintiff’s
physical injury that was incurred but likely  even  before  the  defendant’s
act or omission.  In a pure loss of chance case, “[t]he  compensable  injury
is not the result,  which  is  usually  death,  but  the  reduction  in  the
probability that the patient would recover or obtain better results  if  the
defendant had not been negligent.”  Id. at 1387-88.  In Mayhue, because  the
plaintiff was seeking damages for loss of consortium that resulted from  his
wife’s death, rather than for the loss of his wife’s  chance  for  recovery,
we were not faced with whether to compensate a plaintiff  for  the  loss  of
chance itself.
      The defendants argue that in Mayhue this Court rejected  the  loss  of
chance doctrine, and that, left  with  Section  323  as  their  remedy,  the
Alexanders cannot recover because JoAnn has not yet suffered  a  recurrence.
The Court of Appeals has agreed with this interpretation of Mayhue,  finding
that this Court “specifically rejected”  the  loss  of  chance  doctrine  in
favor of Section 323.  See Smith v. Washington,  716  N.E.2d  607,  614  n.3
(Ind. Ct. App. 1999); Cahoon v. Cummings, 715 N.E.2d 1, 6-7 (Ind.  Ct.  App.
1999).  The Alexanders, on the other hand, assert that  this  Court  adopted
the loss of chance doctrine in Mayhue, finding support for  this  hypothesis
in the following language: “Accepting the § 323 approach does not require  a
separate loss  of  chance  doctrine.”   653  N.E.2d  at  1389  (emphasis  in
original).  According to plaintiffs, the emphasis  of  the  word  “separate”
signals the incorporation of the loss of chance doctrine into  this  Court’s
Section 323 analysis.  The plaintiffs  contend  that,  in  adopting  Section
323, which provides a cause of action when the  defendant,  by  his  or  her
negligence, increases the risk of  harm  to  a  plaintiff,  this  Court  has
already recognized the viability of a cause  of  action  for  the  increased
risk of harm itself.
      Mayhue left unresolved the issue presented by the  Alexanders’  claim.
Mayhue explicitly pointed out that it dealt with a claim for a  patient  who
had died, allegedly as the  result  of  negligent  treatment.   Because  the
patient in Mayhue was seriously ill before  treatment,  the  case  addressed
whether a plaintiff may maintain a cause of action for  medical  malpractice
even though traditional  causation  standards  may  not  be  satisfied.   In
contrast, here the issue is whether a  reduced  chance  of  survival,  which
mathematically equates to  a  decrease  in  life  expectancy,  is  itself  a
compensable injury.  If it is, a plaintiff  may  recover  for  this  injury,
independently of whether the plaintiff has or has not  actually  beaten  the
odds to date.
      C.  “Loss of Chance” as an Independent Injury
      Causation  and  injury  are  sometimes  described  together   as   the
collective third element of a medical malpractice claim.   See  Mayhue,  653
N.E.2d at  1386-87  (reciting  that,  in  order  to  prevail  in  a  medical
malpractice cause of action, a plaintiff must establish: (1)  the  physician
owed a duty to the plaintiff; (2) the physician breached that duty; (3)  the
breach proximately caused the plaintiff’s injuries).  Causation  and  injury
are distinct, however, and we are confronted with this distinction here.
      We think that loss of chance is better understood as a description  of
the injury than as either a term  for  a  separate  cause  of  action  or  a
surrogate for the causation element of a negligence claim.  If  a  plaintiff
seeks recovery specifically for what the plaintiff  alleges  the  doctor  to
have caused, i.e., a decrease in  the  patient’s  probability  of  recovery,
rather than for the ultimate outcome,  causation  is  no  longer  debatable.
Rather,  the  problem  becomes  one  of  identification  and  valuation   or
quantification of that injury.  We  view  the  issue  presented  by  JoAnn’s
claim as whether a plaintiff may recover for  an  increased  risk  of  harm,
here a decreased life expectancy, caused by a  doctor’s  negligence,  before
the ultimate consequences are known.  Because  in  this  case  the  ultimate
injury is death, the increased risk of that result is  a  decrease  in  life
expectancy.  Although loss of chance could also be applied as  a  label  for
this injury, we do not view recognizing this  injury  as  a  deviation  from
traditional tort principles.  Rather, in this context  it  is  nothing  more
than valuation of an item of damages  that  is  routinely  valued  in  other
contexts.  Scheid and Orthopaedics have conceded, for  purposes  of  summary
judgment, that they had a duty toward plaintiff and that they breached  that
duty. They do not concede that the breach caused a compensable  injury,  but
they have, at this summary judgment stage,  not  yet  contested  that  their
negligence caused JoAnn’s chance of  long-term  survival  of  cancer  to  be
reduced.  They contend only that Indiana does not recognize a  reduction  in
the long-term probability of survival as a compensable  injury.   In  Dayton
Walther Corp. v. Caldwell, 273 Ind.  191,  198-99,  402  N.E.2d  1252,  1256
(Ind. 1980), this Court held that the trial court did not err in  overruling
an objection to evidence of the increased risk of  meningitis  and  epilepsy
caused  by  the  defendant’s  negligence.   We  concluded  that:  “To   hold
otherwise would virtually wipe  out  any  appraisal  by  an  expert  medical
witness as to an estimate of permanent  future  impairments.”   Id.   Scheid
and Orthopaedics attempt to distinguish Caldwell, noting that, in  Caldwell,
the plaintiff had, as of trial, already suffered  one  bout  of  meningitis.
Meningitis was one of the two ultimate potential effects,  and  even  as  to
meningitis the ultimate consequences were  not  yet  known.   Caldwell  thus
foreshadowed recognition of compensation for increased risk of  yet  unknown
but serious consequences.
      A number of jurisdictions  allow  recovery  for  negligence  that  has
“increased the risk of harm,” even  where  the  full  ramifications  of  the
defendant’s actions are not yet known.  See Cudone v. Gehret, 821  F.  Supp.
266, 270-71 (D. Del. 1993) (Delaware would allow jury instruction  regarding
recovery for increased risk of harm where doctor’s  alleged  malpractice  in
failing to timely diagnose breast cancer more than  doubled  possibility  of
recurrence of breast cancer); James v. United States, 483 F. Supp. 581,  587
(N.D. Cal. 1980) (in lung cancer case, awarding damages  for  “the  loss  of
the opportunity for earlier and possibly more effective treatment” in  spite
of current remission); Boryla v.  Pash,  960  P.2d  123,  127  (Colo.  1998)
(directed verdict in favor of the defendant was error in  view  of  evidence
that a three-month delay in diagnosing breast cancer  could  have  increased
plaintiff’s risk of a recurrence); Petriello v. Kalman, 576 A.2d  474,  484-
85  (Conn.  1990)  (upholding  instruction  on  compensation  for  increased
likelihood that  plaintiff  would  suffer  bowel  obstruction);  Moattar  v.
Foxhall Surgical Assocs., 694 A.2d 435, 439-40 (D.C. 1997) (plaintiff  could
presently recover for all future economic  injuries  when  cancer  was  more
probable than not to recur and cause her death).
      More specifically, many jurisdictions have recognized  a  decrease  in
life expectancy as a cognizable  injury.   See  Anderson,  669  A.2d  at  78
(recovery  for  shortened  life  expectancy  due  to  increased  risk  of  a
recurrence of testicular cancer); Swain v. Curry, 595  So.  2d  168,  172-73
(Fla.  Dist.  Ct.  App.  1992)  (recovery  for  increased  risk  of  cancer,
decreased chance of survival, and reduction  of  life  expectancy  allegedly
caused by  defendant’s  failure  to  diagnose  breast  cancer  in  a  timely
manner); Knopfer v. Louisiana Patient’s Compensation Fund, 527 So.  2d  326,
329 (La. Ct. App. 1998) (plaintiff’s reduction in life expectancy  justified
jury award of $500,000 for misdiagnosis of moles  as  benign);  Morrison  v.
Stallworth, 326 S.E.2d 387, 393 (N.C.  Ct.  App.  1985)  (“[S]hortened  life
expectancy is a compensable element  of  damage.”);  Davison  v.  Rini,  686
N.E.2d 278, 283-84 (Ohio  Ct.  App.  1996)  (recognizing  a  shortened  life
expectancy as a cognizable injury where eighty-five percent chance  of  full
recovery was  reduced  to  twenty-five  percent  chance  of  surviving  five
years).  But see Beeman v.  Manville  Corp.  Asbestos  Disease  Compensation
Fund, 496 N.W.2d 247, 256-57 (Iowa  1993)  (maintaining  that  reduction  in
life expectancy itself is an element of  damages  only  in  South  Carolina,
which has adopted the “English Rule”  that  lost  opportunity  to  live  out
one’s full life is recoverable).
      Here, JoAnn has pointed to evidence that would support  a  finding  of
both present  injury  and  increased  risk  of  harm.   We  agree  with  the
authorities that find these sufficient to maintain a cause of action for  an
increased risk of harm.  JoAnn  has  characterized  defendants’  actions  as
having reduced her  chance  for  long-term  survival  and  extinguished  the
chance for successful removal of her  tumor.   The  doctors  testified  that
JoAnn’s chances of complete recovery, sixty to eighty  percent  in  June  of
1993, had dropped to a ten to thirty percent chance of surviving five  years
by May of 1994.  JoAnn has suffered physical injuries, including the  growth
of a cancerous tumor, the  destruction  of  healthy  lung  tissue,  and  the
collapse of a lung.[11]  Scheid and Orthopaedics  point  to  the  fact  that
JoAnn does  not  ask  for  past  medical  expenses  or  for  lost  earnings.
However, this has no bearing on whether or not she may maintain  a  separate
cause of action for her decreased life expectancy.
      In some cases an “intangible” loss may be as great an  injury  as  any
that a plaintiff could suffer.  JoAnn must live under constant fear that  at
any time she may suffer a recurrence of her lung cancer.   If  that  occurs,
her doctors have testified that she has no chance of survival.  This is  not
too remote or speculative an injury to preclude recovery, and  JoAnn  should
not be forced to wait until she has suffered a relapse  to  proceed  with  a
cause of action for what is essentially a daily threat of  impending  death,
or to wait until her husband, on her behalf, is left with a  wrongful  death
claim.  As already noted, given the occurrence-based statute of  limitations
for  medical  malpractice,  these  future  claims   may   face   substantial
obstacles.  Money is an inadequate substitute for a period of life,  but  it
is the best a legal system can do.  The alternative is to let  a  very  real
and  very  serious  injury  go  uncompensated  even  if  due  to   negligent
treatment.  Faced with that choice, we hold that JoAnn has stated  a  viable
cause  of  action  and  presented  evidence  sufficient  to  defeat  summary
judgment.  Specifically, within the parameters set forth here, we hold  that
JoAnn may maintain a cause of action in negligence for this  increased  risk
of harm, which may be described  as  a  decreased  life  expectancy  or  the
diminished probability of long-term survival.
      Here, we also have  an  injury  that  often  accompanies  a  delay  in
diagnosis—the invasion of  healthy  tissue  by  a  tumor  or  other  growth.
Accordingly, this case does not present the issue whether a  plaintiff  must
have  incurred  some  physical  injury  as  a  result  of  the   defendant’s
negligence in order to recover for an  increased  risk  of  harm.[12]   Some
courts have concluded, particularly in the loss of chance context, that  the
loss must be “substantial” before it is compensable.[13]  We see no  obvious
method  of  quantifying  that  test.[14]   Because  we  measure  damages  by
probabilizing the injury, the likelihood that plaintiffs will  bring  claims
for trivial reductions in chance  of  recovery  seems  small.   If,  in  the
future, we face a volume of insignificant claims, perhaps such a  rule  will
become necessary.  For now, we are content to rely  on  basic  economics  to
deter resort to the courts to redress remote probabilities or  insubstantial
diminutions in the likelihood of recovery.
      D. Valuation[15] of the Injury
      We  have  referred  to  a  “reduced  probability  of   survival”   and
“diminished life-expectancy” as  two  terms  for  the  same  concept.   This
requires some explanation.  In the Alexanders’ case, let us assume the  jury
concludes from the expert testimony that before the failure to diagnose  she
had a seventy percent chance of full recovery and a normal life  expectancy.
 As already noted, this is a statistical proposition  that  seventy  of  100
patients with JoAnn’s initial condition will have  a  normal  lifetime.   To
take the simplest example first, assume that  there  is  a  100%  chance  of
successful treatment if there were no negligence.  Leaving aside  any  other
individual factors, the patient’s life  expectancy  is  the  median  of  our
collective experience as to the age at death  of  persons  of  her  age  and
gender.  Otherwise stated, a life expectancy is no more than  the  composite
of the remaining lives of a large number of people, some of  whom  will  die
the next day and some of whom will become nonagenarians.
      Here, at the time of diagnosis, the expert testimony put her chance of
survival for five years at approximately twenty percent.  To  be  comparable
to her pre-negligence expectancy, it must be converted, which we assume  can
be done, into a comparable median lifetime or expectancy.  A person  with  a
normal life expectancy has only a fifty percent  chance  of  attaining  that
expectancy.  Even if we reduce both the  “before”  and  “after”  numbers  to
comparables, the problem identified earlier remains: expectancy is itself  a
statistical proposition, and compensating on the basis  of  expectancy  will
either  overcompensate  or  undercompensate  depending  on  how   long   the
plaintiff actually lives.
      Finally,  if  we  take  as  our  starting  point  not  a  normal  life
expectancy, but the expectancy of someone with an already  heightened  risk,
the analysis is the same, but both the “before” and “after” numbers  require
a conversion of probability of survival into an expectancy.   Presumably  we
do not have statistics that permit confident evaluation of  the  anticipated
life span  of  patients  with  many  conditions  to  the  same  degree  that
mortality tables give those values  for  the  general  population.   Despite
these difficulties, and recognizing that it can produce a windfall for  some
and shortchange others, we have compensated for reduced life  expectancy  in
other contexts.[16]  Application of the same principles is the best  we  can
do to value the reduced probability of  a  full  recovery.[17]   This  would
value the injury at the reduction of the patient’s expectancy from her  pre-
negligence expectancy.  Ultimately, the jury will have to attach a  monetary
amount to JoAnn’s loss.  In so doing, because this is  JoAnn’s  action,  the
jury will be forced to consider what value to ascribe to  the  privilege  of
living.  In other contexts, juries are routinely entrusted with the task  of
awarding damages for injuries  not  readily  calculable.   See  Indianapolis
News, Inc. v. Fields, 254 Ind. 219,  219-20,  259  N.E.2d  651,  656  (1970)
(jury awarded $60,000 in libel suit); Miller v. Ryan, 706  N.E.2d  244,  247
(Ind. Ct. App. 1999) (jury awarded  $325,000  in  informed  consent  claim);
Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 187 (Ind. Ct.  App.  1998)  (jury
awarded $250,000 in emotional distress damages to plaintiff who was  pricked
in the thumb by  a  hypodermic  needle  concealed  in  toilet  paper  roll).
Valuing a determinable number of years of life is no more  challenging  than
these exercises.

               II. Negligent Infliction of Emotional Distress

      The Alexanders argue that JoAnn is entitled to  maintain  a  cause  of
action for negligent infliction of emotional distress because  she  suffered
an impact sufficient to  satisfy  the  modified  impact  rule.   Scheid  and
Orthopaedics argue that JoAnn has failed  to  satisfy  the  modified  impact
rule because, in their words, “the failure  to  diagnose  cancer”  does  not
constitute an impact as required by Shuamber v. Henderson,  579  N.E.2d  452
(Ind. 1991).
      In order to maintain a cause of action  for  negligent  infliction  of
emotional distress under Indiana law, a plaintiff must satisfy  the  “impact
rule.”  The impact rule originally  consisted  of  three  elements:  (1)  an
impact on the plaintiff; (2) that causes physical injury to  the  plaintiff;
(3) that in turn causes the emotional distress.   Id.  at  454.   This  rule
precluded recovery for the  case  in  which  a  plaintiff  experienced  real
mental stress in the absence  of  a  physical  injury.   We  recognized  the
policy reasons in support of relaxing the impact rule and held in  Shuamber:

      [W]hen . . . a plaintiff sustains a direct impact by the negligence of
      another  and,  by  virtue  of  that  direct  involvement  sustains  an
      emotional trauma which is serious in nature and of a kind  and  extent
      normally expected to occur in a reasonable person, we hold that such a
      plaintiff is entitled to  maintain  an  action  to  recover  for  that
      emotional trauma without regard to whether the emotional trauma arises
      out of or accompanies any physical injury to the plaintiff.


Id. at 456.  In Shuamber, this Court concluded  that  passengers  in  a  car
involved in an accident in which a family member was  killed  could  recover
for emotional distress  that  resulted  from  the  death,  even  if  it  was
unconnected to their physical injuries.  See id.   In  Conder  v.  Wood,  we
allowed a mental distress claim by a plaintiff who had beat on the  side  of
a truck that was running over her co-worker,  concluding  that  the  contact
between her fist and the truck satisfied the impact  requirement.   See  716
N.E.2d 432, 433 (Ind. 1999).
      Similarly, we conclude that the JoAnn has satisfied  the  elements  of
negligent  infliction  of  emotional  distress  under  the  modified  impact
rule.[18]  The impact does not consist, as Scheid and  Orthopaedics  allege,
of the failure to diagnose cancer.[19]  Rather, allegedly  as  a  result  of
the defendants’ negligence, JoAnn suffered the destruction of  healthy  lung
tissue by a cancerous tumor.  As we held in Conder, the purpose of the  rule
is  to  confine  recovery  to  those  with  “direct  involvement”   in   the
defendant’s negligent act or omission.  JoAnn was treated by the  defendants
and has incurred a physical change  as  a  result.   This  is  good  enough.
JoAnn testified that she is  now  being  treated  with  antidepressants  and
described the  devastation  surrounding  her  bleak  prognosis.   These  are
reasonable  responses  under  the  circumstances.   These  allegations   are
sufficient to defeat a summary judgment motion on  the  issue  of  emotional
distress, and JoAnn is not precluded as a  matter  of  law  from  proceeding
with this claim.

            III. Exacerbation or Aggravation of JoAnn’s Injuries

      The Alexanders allege that the Court of Appeals erred  in  failing  to
address whether JoAnn suffered injuries proximately  caused  by  Scheid  and
Orthopaedics and whether, as a result of the failure to  follow  up  on  her
chest x-ray in June of 1993, she sustained an  aggravation  or  exacerbation
of her injury.  In discussing this claim, the Alexanders speak primarily  in
terms of the injuries JoAnn incurred between  the  two  x-rays.   Defendants
respond that, given JoAnn’s concession that she seeks neither  past  medical
expenses nor loss of earnings, the Court of Appeals did not err  in  failing
to address this issue.
      The Alexanders correctly note that ordinarily a  defendant  is  liable
for the aggravation or exacerbation of a current injury, to the extent  that
the defendant’s “conduct has resulted in an aggravation of the  pre-existing
condition, [but] not for the condition as it was.”  Dunn  v.  Cadiente,  516
N.E.2d 52, 56 (Ind. 1987) (citing William L. Prosser, Law of Torts 262  (4th
ed.)).  Scheid’s and Orthopaedics’ contention that JoAnn has  been  unharmed
runs contrary to the record.  If  nothing  else,  the  past  injuries  JoAnn
sustained  are  substantial.   During  the  time  JoAnn’s  cancer   remained
undiagnosed, she incurred  the  destruction  of  healthy  lung  tissue,  the
growth of a cancerous tumor, and the collapse of a lung.  Thus, JoAnn  could
conceivably maintain a cause of action  for  the  aggravation  of  her  pre-
existing condition.  Given that these injuries are injuries for which  JoAnn
seeks no compensation, however, we agree with Scheid and  Orthopaedics  that
the Court of Appeals did not err in failing to address JoAnn’s argument  for
recovering for aggravation of injury as formulated.

                                 Conclusion
      We grant transfer and reverse  and  remand  to  the  trial  court  for
proceedings consistent with this opinion.


      SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
-----------------------
[1]  Indiana Code §§ 27-12-10-1 to 26 (1993).  The Medical Malpractice Act
has since been recodified at Indiana Code §§ 34-18-1-1 to 10-26.
[2]   The doctors’ estimations of the chances of JoAnn’s survival for five
years from diagnosis ranged from 10 to 30%.  Even if JoAnn survived for
five years, Dr. Scott Saxman testified, she would not be free from the risk
of a relapse.  Dr. Fred O. Butler testified that, if JoAnn’s cancer were to
recur, she would be given palliative rather than curative care.  According
to Butler, “If she recurs, she will die from this tumor.”  If, on the other
hand, JoAnn’s cancer had been diagnosed at the time of the initial x-ray,
according to Butler, JoAnn would have had approximately a 60 to 80% chance
of a full recovery from lung cancer.
      Saxman estimated that there was only a 13 to 22% chance that her
cancer had metastasized by the time of her first x-ray, but testified to
the uncertainty of determining probability—which he defined as the
probability that JoAnn had already suffered some lymph node involvement at
the time of the initial x-ray.  If she had, then the staging of her cancer
would not have progressed during the 11-month period, even though the tumor
had grown.  He went on to state that staging is not the only indicator of a
patient’s prognosis, and later testified that, “[t]he larger the primary
tumor, the more likely [the patient is] to have lymph node involvement.”
      Dr. Laurence H. Bates stated that, although it was impossible to know
the stage of her cancer at the time of the first x-ray, there was a greater
than 50% chance that JoAnn’s cancer was in Stage I at the time the first
nodule was revealed.  According to Bates, in Stage I, “[T]here is a
significantly higher likelihood of being able to resect it completely and
curing the cancer than there is in the case of stage IIIa cancer.”  By the
time JoAnn was diagnosed with cancer 11 months later, the cancer had
progressed to Stage IIIa, and her tumor had approximately quadrupled in
size, from one to four centimeters.
[3] See DeBurkarte v. Louvar, 393 N.W.2d 131, 135, 139-40 (Iowa 1986)
(affirming trial court’s damages award to plaintiff whose chances of
surviving breast cancer dropped from 50-80% to no chance whatsoever); Perez
v. Las Vegas Medical Ctr., 805 P.2d 589, 592-93 (Nev. 1991) (allowing
plaintiff who did not have a greater than 50% chance of surviving brain
hemorrhage, even in absence of malpractice, to proceed beyond summary
judgment); Evers v. Dollinger, 471 A.2d 405, 407-08 (N.J. 1984) (allowing
plaintiff who suffered recurrence of breast cancer between trial and appeal
to maintain loss of chance cause of action where doctor’s malpractice
caused seven-month delay in diagnosis); Herskovits v. Group Health
Cooperative, 664 P.2d 474, 475-77 (Wash. 1983) (allowing issue of proximate
cause to go to jury where deceased plaintiff’s chance of surviving cancer
dropped approximately 14%); see also Mayhue, 653 N.E.2d at 1384, 1387-89
(allowing husband of deceased wife to proceed with loss of consortium
claim, under Section 323 of the Restatement of Torts, even though experts
agreed that wife had less than 50% chance of recovery in absence of
defendant’s alleged malpractice).
[4] See James v. United States, 483 F. Supp. 581, 583, 587 (N.D. Cal. 1980)
(finding in favor of plaintiff who remained undiagnosed with lung cancer
after abnormal chest x-ray was filed away without having been read by
examining physician); United States v. Anderson, 669 A.2d 73, 78 (Del.
1995) (allowing recovery for increased risk of a return of testicular
cancer as part of damages award); Delaney v. Cade, 873 P.2d 175, 177-78,
182 (Kan. 1994) (allowing paraplegic plaintiff to recover where risk of
spinal cord injury was increased five to ten percent by prolonged period of
shock following car accident and prior to surgery); Aasheim v. Humberger,
695 P.2d 824, 825, 827-28 (Mont. 1985) (trial court erred in failing to
instruct jury on loss of chance where plaintiff claimed that due to
defendant’s negligence she had lost her chance “to have less radical
surgery and preserve her natural knee”).
[5]  See Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 800 (Cal.
1993) (concluding that a plaintiff exposed to toxins may recover for fear
of contracting cancer in absence of present injury only when cancer is more
likely than not to develop); Eagle-Picher Indus., Inc. v. Cox, 481 So. 2d
517, 525-26  (Fla. Dist. Ct. App. 1985) (disallowing recovery for future
risk of contracting cancer due to exposure to asbestos); Capital Holding
Corp. v. Bailey, 873 S.W.2d 187, 195 (Ky. 1994) (disallowing plaintiff
recovery for increased risk of contracting cancer in absence of any present
harm from exposure to asbestos); Bryson v. Pillsbury Co., 573 N.W.2d 718,
720, 722 (Minn. Ct. App. 1998) (finding summary judgment appropriate on
claim of increased risk of future harm where plaintiff had “presented no
evidence to quantify her risk of developing cancer” from exposure to a
substance used for chemical treatment).
[6]  See Martinez-Ferrer v. Richardson-Merrell, Inc., 164 Cal. Rptr. 591,
596 (Cal. Ct. App. 1980) (allowing plaintiff who originally exhibited side-
effects from a drug to sue 16 years later when he developed cataracts,
despite concerns regarding splitting causes of action).
[7]  Splitting causes of action is also generally prohibited in Indiana,
see Indiana State Highway Comm’n v. Speidel, 181 Ind. App. 448, 452, 392
N.E.2d 1172, 1175 (1979) (citing Roby v. Eggers, 130 Ind. 415, 422-23, 29
N.E. 365, 368 (1891)), and other jurisdictions, see Moattar v. Foxhall
Surgical Assocs., 694 A.2d 435, 440 (D.C. 1997) (plaintiff may recover for
future consequences, including the possibility of metastasis and hastened
death, in view of the prohibition against splitting causes of action);
Pecorino v. Raymark Indus., Inc., 763 S.W.2d 561, 571 (Tex. App. 1988)
(noting that Texas prohibits the splitting of causes of action as part of
the doctrine of res judicata).
[8]  See Cal. Civ. Proc. Code § 340.2 (West 1982) (statute allows
plaintiffs with asbestos-related injuries to sue, inter alia, “within one
year after the date the plaintiff first suffered disability”); Ayers v.
Jackson Township, 525 A.2d 287 (N.J. 1987).  In Ayers, a toxic tort case,
the Supreme Court of New Jersey emphasized that “neither the single
controversy doctrine nor the statute of limitations . . . will preclude a
timely-filed cause of action for damages prompted by the future ‘discovery’
of a disease or injury related to the tortious conduct at issue in this
litigation.”  Id. at 300.  The court also recognized, however, that even
though the plaintiffs exposed to cancer-causing agents would not be
precluded from suing once they actually incurred cancer, their inability to
prove causation at some distant time in the future might effectively
preclude them from recovery.  See id. at 308.
[9] In Ayers, a dissenting Justice argued vigorously that it is patently
unfair to deny a person who has suffered an increased risk of harm a
remedy, stressing the very real nature of the present injury: “No person in
her right mind would trade places with any one of these plaintiffs.  Does
this not suggest that a person would have to be paid a considerable sum of
money, more than that permitted here by the Court, before tolerating the
injuries suffered by these plaintiffs?” 525 A.2d at 320 (Handler, J.,
concurring and dissenting).
[10]  See Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999) (concluding that it
was unconstitutional to bar a plaintiff from pursuing a medical malpractice
claim where she could not have known about her claim before the occurrence-
based statute of limitations had run).
[11]  Scheid and Orthopaedics maintain that the lung collapse was due to
JoAnn’s history as a smoker, and not lung cancer.
[12] New Jersey also initially declined to address whether a loss of chance
in the absence of physical injury is recoverable, see Evers, 471 A.2d at
412 n.7, and later concluded in a toxic tort case that it was not, see
Ayers, 525 A.2d at 308.
[13] See Dickey ex rel. Dickey v. Daughety, 917 P.2d 889, 890-91 (Kan.
1996) (citing Delaney, 873 P.2d at 175) (articulating rule in Kansas that
in order to recover in a loss of chance case, “loss” must be substantial);
Perez, 805 P.2d at 592 (allowing loss of chance where plaintiff can show
that “some negligent act or omission by health care providers reduced a
substantial chance of survival”).
[14] Judge Posner, in dissent, has argued forcefully that an increased risk
of harm, to any extent, should be compensable.  See DePass v. United
States, 721 F.2d 203, 206-10 (7th Cir. 1983).  Allowing recovery for the
lost chance, he argues, furthers an important goal of tort law—putting the
victim in as near a position as he would have been before harmed.  See id.
at 210.
[15]  Joseph H. King, Jr., author of the seminal article on “loss of
chance” and a recent article updating the same subject, see Causation,
Valuation, and Chance in Personal Injury Torts Involving Preexisting
Conditions and Future Consequences, 90 Yale L.J. 1353 (1981); “Reduction of
Likelihood” Reformulation and Other Retrofitting of the Loss-of-a-Chance
Doctrine, 28 U. Mem. L. Rev. 491 (1998), uses this term to refer to “the
process of identifying and measuring the compensable interests destroyed or
impaired.” Id. at 494 n.12.
[16]  Compensation for reduced life expectancy is routinely awarded in the
context of wrongful death claims, see FMC Corp. v. Brown, 551 N.E.2d 444,
449-50 (Ind. 1990), Steiner v. Goodwin, 138 Ind. App. 546, 550-51, 215
N.E.2d 361, 364 (1966), as well as personal injury claims, see Smith v.
Syd’s, Inc., 598 N.E.2d 1065, 1067 (Ind. 1992), Prange v. Martin, 629
N.E.2d 915, 922-23 (Ind. Ct. App. 1994), with the important caveat that the
compensation ordinarily takes the form of lost earnings.
[17]  The valuation of a reduced life expectancy in particular has proved
difficult for the courts.  Courts recognizing a reduced life expectancy
have sometimes calculated damages in terms of compensable elements should
the injury actually occur, see Petriello, 576 A.2d at 484 (“The probability
percentage . . . can be applied to the damages that would be justified if
that harm should be realized.”); Moattar, 694 A.2d at 440 (holding that a
plaintiff may recover for “future consequences based on the probability of
metastasis and of hastened death”), and for present emotional distress
associated with the injury, see, e.g., James, 483 F. Supp. at 587-88
(assessing damages for emotional distress, but subtracting for time in
which plaintiff did not know he had lung cancer).   Other courts have
merely stated that a reduced life expectancy is a cognizable injury, but
provide no guidance as to how the injury should be valued.  See Cudone, 821
F. Supp. at 266; Davison, 686 N.E.2d at 284-85 (“[T]rier of fact may . . .
assess the degree to which the plaintiff’s chances of recovery or survival
have been decreased and calculate the appropriate measure of damages.”).
In Morrison, the North Carolina Court of Appeals acknowledged that courts
have been reluctant to award damages for reduced life expectancy itself
because of the difficulty in valuing it, but nonetheless concluded that a
shortened life expectancy is compensable in North Carolina.  See 326 S.E.2d
at 393.
[18]  Many loss of chance cases have also included a cause of action for
emotional distress.  See James v. United States, 483 F. Supp. 581, 587
(N.D. Cal. 1980); Boryla v. Pash, 960 P.2d 123, 127 (Colo. 1998); Evers v.
Dollinger, 471 A.2d 405, 412 (N.J. 1984).
[19]  Scheid and Orthopaedics rely on Etienne v. Caputi, 679 N.E.2d 922
(Ind. Ct. App. 1997), for the proposition that the failure to diagnose
cancer does not constitute an impact for purposes of the modified impact
rule.  The Court of Appeals stated, “[T]he alleged emotional damages arose
as a result of [defendant’s] incorrect reading of [plaintiff’s] mammogram.
. . . We do not see the direct physical impact or direct involvement
necessary for the application of the modified impact rule.”  Id. at 926.
To the extent that Etienne suggests that a physical change in the body
resulting from the failure to diagnose an illness does not constitute an
impact satisfying the modified impact rule, it is disapproved.