In failure-to-diagnose or delayed-diagnosis cases where the plaintiff’s life expectancy has been or may be reduced by the defendant’s actions, economic damages fall into a hazy area somewhere between personal-injury damages and death damages. Measuring damages either under strict personal-injury standards or strict death standards can lead to some significant inequities. Courts have offered several solutions to this problem, but none of the solutions is without its problems.
Economic damages claims for personal injury seek the income the plaintiff has lost over his or her lifetime as a result of the tort. Wrongful-death economic-damages claims seek to replace money the estate of the decedent has lost as a result of the tort — money the decedent’s family members would have received from the decedent absent the tort. In most jurisdictions, the decedent’s living expenses are deducted from earnings to arrive at wrongful-death damages. This deduction can be a significant portion of the decedent’s future income. Survival claims are made by the decedent’s representative on the decedent’s behalf — the cause of action survives the plaintiff’s death. Survival claims are separate and distinct from wrongful-death claims made by the decedent’s designated heirs. In many jurisdictions, survival damages do not include future lost earnings.
Where the plaintiff’s life expectancy has been shortened, there may be a loss of earning capacity up to the time of death, and certainly thereafter. Are defendants entitled to seek a deduction for living expenses after the actual or probable date of death, as they would be in a wrongful-death action? Also, the plaintiff’s family may, under wrongful-death principles, have a claim for services that the plaintiff would have provided to them. Is this claim precluded? If the claim is brought as a survival action for an unmarried decedent in New Jersey or Maryland — states that do not allow recovery for future lost earnings in survival actions — are the tortfeasors off the hook for economic damages entirely?
Three relatively recent opinions outline the range of difficult issues that can arise in these cases.
Amalgamation of Claims
In Monias v. Endal, 330 Md. 274, 623 A.2d 656 (1993), the Maryland Court of Appeals examined several issues arising in shortened-life-expectancy claims. The plaintiff was examined by her gynecologist in 1986, who diagnosed a lump on her breast as benign, and diagnosed it again as benign six months later. A specialist, 14 months later, finally performed a biopsy showing the lump to be malignant. Experts testified that, had the malignancy been diagnosed correctly on the first examination, the plaintiff would have had an 85 to 90 percent chance of survival. With the misdiagnosis and delayed treatment, she had only a 20 percent chance of surviving beyond 1992. The trial judge instructed the jury to segregate damages into those occurring before 1992, the probable date of premature death, and those occurring after. The later damages were termed post-premature death damages by the court. The jury’s award for pre 1992 damages was $28,662 for past medical expenses, $125,000 for medical expenses up to 1992, $200,000 in non-economic (pain and suffering) damages, $33,000 for lost income and $75,000 for loss of consortium. In the post-premature-death category, the jury awarded $250,000 for lost earnings through age 65, plus $200,000 to the plaintiff’s children for loss of household services the plaintiff would have provided.
The defendant appealed the damages award to an intermediate appellate court, arguing that the post-premature-death award for lost earnings was improper since it was a wrongful-death award made in a personal-injury action. The defendant also argued that the proper measure of lost-earnings damages would be the plaintiff’s lost earnings to her probable date of death given her cancer, rather than through age 65. The intermediate appellate court affirmed all categories of damages except the $200,000 lost services award to the children.
The Maryland Court of Appeals agreed, holding that the plaintiff’s damages were lost income through normal life expectancy, not her life expectancy shortened by the defendant’s negligence. The appeals court also disallowed the $200,000 award to the plaintiff’s children for loss of services. The court did note that while plaintiffs may recover for services they cannot perform for themselves, plaintiffs in personal-injury actions cannot recover the value of services family members will lose because of premature death, the court held. The appeals court characterized the plaintiff’s claim as strictly a personal-injury matter, noting that the trial court’s division of damages into pre-and post-premature death categories achieved a correct result but was not necessary.
This result seems somewhat incomplete. The plaintiff’s children, unless they will have a cause of action on her death, have lost the value of the plaintiff’s services and will not recover that element of damages. The defense has paid lost future income damages that, under wrongful-death principles, would be reduced by the plaintiffs personal maintenance, or living expenses. Also, while expert opinion held that it was more than .likely that the plaintiff would die prematurely, this outcome was not certain — there was a ten to 15 percent chance that prompt diagnosis might not have helped. Was the defendant entitled to an offset for this uncertainty?
Bifurcation of Claims
The trial court in Moattar v. Foxhall Surgical Associates, 694 A.2d 435 (D.C.App. 1997) tried to address at least some of these questions, but the appellate court reversed what seems to be an interesting solution to the reduced-life-expectancy damages problem. In this case, plaintiff’s experts were prepared to testify that the plaintiff, because of an eight-month delay in diagnosing breast cancer, would more likely than not die within four years of trial. The defendants, whose experts were prepared to testify that the plaintiff was more likely than not cured, sought a motion in limine precluding life-expectancy testimony from the plaintiff’s experts.
The trial court ruled that the issue of future damages be bifurcated. At time of trial, the plaintiff was working. If and when the plaintiff’s cancer recurred or she died as a result of the cancer, a new trial would be held to determine damages at that time, but no testimony on reduced life expectancy was to be heard by the jury at the present trial. The trial court also held that any general damages (pain and suffering and mental anguish) the present jury found were to be paid via an annuity and not a lump sum.
The jury awarded as damages to the date of trial $150,000 in general damages and no future non-economic damages. The plaintiff appealed, arguing that she was entitled to future non-economic damages.
The Court of Appeals held that the trial court erred in not allowing the plaintiff to present testimony on reduced life expectancy at trial, since she had sufficient evidence to support such a finding, and the fact that there was a difference of expert opinion made it an appropriate question for the jury. Also, the appellate court held that general damages were to be paid in a lump sum. The case was remanded for a new trial. “The allowance of future economic losses resulting from diminished life expectancy is not a premature attempt to recover wrongful death and survival damages, as [the defendants] contend, but an element of damages recoverable by the injured party during her lifetime where properly proved,” the court wrote. Moattar at 438.
The dissent suggested that the trial court should have dismissed the future damages claim in return for a defense waiver of the statute of limitations on that claim. The plaintiff’s claim, the dissent wrote, “was premised not on a lengthy disability for which she would need substantial income, but on loss from death itself. The beneficiary of that claim would be her estate, not Mrs. Moattar.” The dissent also noted that there was substantial danger of either under- or overcompensation, depending on which expert the jury believed and the plaintiff’s actual future experience. If the jury believed her to be cured and she suffered a relapse, she would be barred forever from any future recovery.
In many delayed-diagnosis or misdiagnosis claims leading to reduced life expectancy, a claim is made for “loss of chance of survival,” or “lost chance.” The plaintiff seeks compensation for the diminution of chances of survival. The proper measure of lost-chance damages is the subject of great debate. This issue was addressed recently in Smith v. State of Louisiana Department of Health and Hospitals, 676 So.2d 543 (La. 1996), initiated as a wrongful-death and survival matter. The decedent had gone into the hospital with a lesion on his foot. An X-ray taken at the time revealed a mass on his trachea, but neither he nor his family was told about the mass or the need for further tests. Tests administered 14 months later showed he had lung cancer and he died five months after that. The defendants conceded liability, but denied that the delayed diagnosis caused the death, or any lost chance of survival.
The trial court, holding that the plaintiffs did not show that the delayed diagnosis caused the death, dismissed the action. The intermediate appellate court reversed, noting that every expert at trial said that the plaintiff lost some chance of survival and the plaintiffs were entitled to recover for that lost chance.
The appellate court held that, since the plaintiffs did not show that there was a better-than-even chance of survival absent the tort, the damages should be proportional to the lost chance. That is, damages should be calculated as the percent of the chance of survival lost due to negligence multiplied by the total amount of damages which are ordinarily allowed in wrongful death actions. The court relied heavily Joseph H. King, Jr., Causation, Valuation and Chances in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981).
The appellate court concluded that all the elements of damages (family support and consortium claims, funeral expenses, lost earnings, the value of household services and survival-action damages) amounted to $764,347, and that the plaintiffs demonstrated a ten percent lost chance of survival, damages were $76,437. The plaintiffs again appealed.
The Louisiana Supreme Court rejected the proportional-damages theory, holding that it was too precise and methodical to measure general damages. The value of lost chance is not the same as damages for wrongful-death and survival actions, the court noted. “The court should instruct the jury to determine the amount of damages for this specific loss on the basis of all evidence,” which includes evidence of percentages of loss of chance of survival, evidence of loss of support and evidence of loss of love and affection.
What To Do?
Courts facing the question of damages in delayed-diagnosis matters where the plaintiff has shortened life expectancy have devised an array of methods of calculation, but all seem to fall short in significant ways. It may be time for courts to establish a new category of damages recognizing that the impact of probable shortened life expectancy is different from the impact of an injury or a wrongful death.