Alexander v. Scheid

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.