Written by attorney Dan R. Denton

Fear of a Future Medical Condition or Treatment May be a Proper Element of Damages

As long as the testimony is not offered for the purpose of proving the party’s case, evidence of “possibilities" of a future condition or treatment, and Plaintiff’s anxiety or fear relating to such possibilities, may be admissible.

A plaintiff may recover damages for fear of possible future surgery or worsening medical condition without proving to a reasonable medical certainty that he/she will need surgery.Brantner v. Jenson, 121 Wis.2d 658, 360 N.W.2d 529 (1985). In Brantner, the leading case on this subject, the defendant contended that the trial court should not have allowed the plaintiff and his surgeon to testify regarding possible future back surgery because the plaintiff did not prove to a reasonable degree of medical probability that his injury would require surgery. Id. at 665. The plaintiff's surgeon testified he had discussed "the operation, recovery time, risks, chances of success and possible subsequent disability" with the plaintiff on numerous occasions. Id. at 662. The plaintiff testified as to these conversations, as well as a conversation he had with his father concerning back surgery. Id. at 660.

The Brantner court stated:

We conclude that fear of surgery may be reasonably certain, even though there is no certainty that surgery will occur and even though the physician cannot testify to a reasonable degree of medical probability that the consequence feared will occur. . . . A doctor's realistic prediction as to the possibility of future surgery, illness or disability may give rise to reasonable fear and anxiety in the victim concerning his or her future health and well-being.

When the issue is a claim of fear of future surgery, the proper degree for a supporting medical opinion is a "reasonable possibility," Bychinski v. Sentry, 423 N.W.2d 178 (Wis. 1988), citing Brantner v. Jenson.

In Cochran v. A/HBatteryAssociates, 909 F.Supp. 911 (S.D.N.Y. 1996), the plaintiff in a maritime action asserted that the lasting effects of the injury to his knee has caused him continuing difficulty when participating in sporting events and created a likelihood that he may require future knee replacement surgery. The treating physician pointed out that as a result of the knee injury sustained in the ferry accident, plaintiff has an “unquantifiable risk ‘of the development of osteoarthritis.’" At p. 915. Another doctor “speculated that plaintiff may face future arthroscopic or even knee replacement surgery. Of course as with any prediction, there is the possibility that plaintiff will not need such surgery." At p. 918. In determining the proper scope of damage, the court considered the lack of long lasting effects on plaintiff but “took into account the suffering and expense he has already endured, as well as the possibility of future problems . . ." At p. 920. (emphasis added).

The Plaintiff in Eisenback v. Downey, 694 A.2d 1376 (Conn. 1997), testified that she had considered future back surgery, but felt it would be too great a risk and might not alleviate all of her pain; that she was concerned about her future health and that she might need surgery; that she might need continual medical treatment; and that her low back problems might hinder future pregnancies. Defense counsel objected to each part of this testimony, and argued that the lay witness was testifying to medical opinions. The trial court overruled the objections and gave the jury a curative instruction explaining that they were to consider this testimony only to illustrate Eisenbach's present state of mind, not as expert medical evidence.

In Tamplin v. Star Lumber & Supply Company, 836 P.2d 1102 (Kan. 1992), the court held:

We conclude that anxiety based upon a reasonable fear that an existing injury will lead to the occurrence of a disease or condition in the future is an element of recovery. However, for the fear to be reasonable, it is not necessary to show that the prospect of such an occurrence is a medical certainty or probability. It is sufficient if there is a showing that a substantial possibility exists for such an occurrence. At ___.

The Plaintiff in Baylor v. Tyrrell, 177 Neb. 812, 131 N.W.2d 393 (1964) “was advised by his physician as to the possibility that the condition of his hip might deteriorate or become worse following his operation and as to the possibility of another operation becoming necessary." The defendant objected to the court’s instructions relating to plaintiff’s damage element of anxiety or "mental suffering." In approving the trial court’s instructions, the appellate court stated:

These instructions, when construed together, told the jury: “(1) That his anxiety or mental suffering must have a reasonable basis, and (2) that the evidence with relation to the doctor's advice as to "possibilities" could only be considered with relation to the determination of a reasonable basis for the anxiety and mental suffering, and for no other purpose. Medical science cannot in all cases predict the prognosis of an injury or disease. Advice by a physician of this fact may reasonably lead to anxiety. . . . Disclosure by a physician that a wound ‘might’ develop into cancer is a reasonable basis for a patient to have anxiety about the possibility of developing cancer, and is recoverable in damages." Ferrara v. Galluchio, 5 N. Y. 2d 16, 152 N. E. 2d 249, 71 A. L. R. 2d 331 (emphasis added).

In Boryla v Pash, 960 P2d 123 (Colo 1998), the court held that the Plaintiff was entitled to recover damages for her fear of an increased risk of recurrence of cancer as part of her claim for pain, suffering and emotional distress arising from a delayed diagnosis of cancer. Accord, Evers v Dollinger, 471 A2d 405 (NJ 1984). In Boryla, the oncologist stated that even though the patient was cancer-free at the time of trial, she nevertheless “had a 25% risk of the cancer recurring in the future" and that if the cancer did recur, it would be terminal. He also testified that the plaintiff’s fear of the increased risk of recurring cancer was “entirely reasonable." The Colorado Supreme Court noted that “[the patient] did not request damages for the increased possibility that she might suffer a recurrence of cancer. Instead she sought damages for emotional distress, including the fear of an increased risk of recurrence of cancer." The Court stated that emotional distress would be a consequence of defendant’s alleged negligence and need not be supported by expert testimony, such being a matter fully within the personal knowledge or experience of the jury. See Potter v Firestone Tire and Rubber Company, 863 P2d 795 (Cal. 1993) (In certain situations a plaintiff who fears cancer that will eventually develop should be allowed to recover without having to prove that it is more likely than not that cancer will occur, so long as the plaintiff’s fear is “serious, genuine, and reasonable.")

“While there must be a reasonable connection between the injured plaintiff’s mental anguish and the prediction of a future disease, the central focus of a court’s inquiry in such a case is not on the underlying odds that the future disease will in fact materialize…. [If the] mental anguish resulting from the chance that an existing injury will lead to the materialization of a future disease…[and] anxiety are both genuine and non-trivial, a plaintiff ought not to be denied a recovery merely because the chance that the future consequence will develop is 49% rather than 51%. The ‘more likely than not’ test is used to determine whether to compensate for the future consequence itself, not for the present fear of such a future consequence." Potter,Id.

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