MOORE, Judge:
Paula K. Gill, D.M.D., appeals a summary judgment entered by the Fayette Circuit Court in favor of Susan M. Burress, M.D., after the circuit court determined that Burress conclusively proved that Gill would be unable to establish damages arising out of Burress's alleged professional negligence in failing to detect a mass in Gill's breast consistent with ductal carcinoma for a period of approximately eighteen months. We find that issues of material fact exist relating to certain elements of damage properly recoverable by Gill, but that other damages claimed by Gill are not recoverable in this case as a matter of law. Therefore, we affirm in part, reverse in part, and remand for further proceedings.
Burress is a doctor of obstetrics and gynecology (also known as an "Ob/GYN"), and Gill was under Burress's care and treatment from 1994 through 2005. Relevant to this case are Gill's visits to Burress's office on November 7, 2003 (when Gill was 41 years of age), and December 3, 2004 (when Gill was 42). During both visits, Burress physically examined Gill's breasts for palpable lesions and found nothing indicative of cancer. However, no record relating to Burress's treatment of Gill indicates that Burress ever recommended Gill follow up with a mammogram. Gill also testified, via deposition, that Burress advised her following both of these physical examinations that it would be unnecessary for her to obtain an additional examination by means of a mammogram.
Gill further testified that she relied upon Burress's advice until early or mid-May, 2005, at which point she discovered, through self-examination, a lump about 1.7 centimeters in diameter in the upper part of her left breast. Approximately one month later, Gill obtained a mammogram of the area in question, which ultimately led to a diagnosis of stage II or IIA cancer in June, 2005. Thereafter, Gill underwent treatment that included radiation, a lumpectomy, chemotherapy, and the removal of her ovaries.
On June 5, 2006, Gill filed her complaint against Burress in this matter. Gill's complaint alleged that Burress had acted negligently
Gill produced two expert witnesses who testified via deposition in support of her claim: a surgical oncologist, Dr. Harry Bear, and a radiologist, Dr. Avinash Sud. As to the applicable standard of care, Dr. Bear testified:
As to the probability of a diagnostic mammogram detecting Gill's cancer prior to June, 2005, Dr. Bear further testified:
Dr. Bear also opined regarding whether Gill's regime of cancer treatment would have been less taxing if her cancer had been diagnosed prior to June, 2005:
For his part, Dr. Sud testified that a mammogram probably would have detected Gill's cancerous lesion in 2004. Dr. Sud added that "if it was diagnosed earlier, all I can say is that [Gill's] survival would
Finally, Dr. Bear testified that as a direct result of the delay in Gill's cancer diagnosis, it was likelier that Gill could have another bout with cancer:
After discovery was completed, Burress moved for summary judgment, arguing that Gill had asserted a claim for damages which were not recoverable under Kentucky law. Burress based her motion largely upon Dr. Bear's testimony that the treatment Gill could have received for her cancer, had her cancer indeed been discovered six months or a year and a half earlier, would only have bettered Gill's long-term prognosis for remaining cancer free by a margin of five to twenty-five percent. Burress argued that in light of Dr. Bear's testimony, Gill was currently disease-free and that it was more probable than not (i.e., seventy to seventy-five percent likely) that Gill would remain disease-free. The circuit court dismissed the entirety of Gill's claim solely on the basis of this argument, and this appeal followed.
Summary judgment serves to terminate litigation where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 482 (Ky.1991). Summary judgment "is proper only where the movant shows that the adverse party cannot prevail under any circumstances." Id. at 479 (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky.1985)).
On appeal, we must consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). Because summary judgment involves only questions of law and
We begin our analysis by identifying Gill's injury. Gill has had cancer. Burress makes the point in her brief of stating that her negligence, if any, did not cause the cancer. Gill argues, however, that she can prove that the virulent and life-threatening effect of the disease has been exacerbated by Burress's negligent treatment and diagnosis. Specifically, Gill alleges that due to Burress's negligence, her tumor grew unchecked for a period of approximately eighteen months and required stronger and more expensive treatment to cure.
Moreover, if Gill develops symptoms of cancer in the future, this will not mean that the disease has recurred, but rather, that the disease was never completely eradicated by the delayed treatment. As the testimony in this matter bears out, if Gill is going to have a detectable recurrence in the future, then she does, in fact, presently have the disease in the form of micrometastases. And, some testimony in this matter supports that Burress's care of Gill made it less likely that Gill's cancer was completely eradicated.
In sum, Gill's claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but "[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.")
A fair reading of Gill's complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician's advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress's alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.
As to the first category of damages, Kentucky recognizes that where substantial evidence of probative value supports
We are mindful of Burress's contention that it would be difficult for Gill to attribute any specific part of her existing mental anguish that is specifically related to her five to twenty-five percent increased likelihood of having cancer again, as opposed to what her mental anguish would have been even if she had been timely diagnosed with cancer. Nevertheless, this difficulty should not preclude Gill from presenting her case to the finder of fact. In this respect, we are persuaded by the logic of our sister court illustrated in Swain v. Curry, 595 So.2d 168, 172 (Fla. 1st DCA), rev. denied, 601 So.2d 551 (Fla.1992). There, the failure to timely detect a breast tumor resulted in a radical mastectomy, whereas earlier detection would have resulted in a lumpectomy. Testimony was presented that Mrs. Swain had a sixty-five percent probability that she would develop a recurrence of the cancer, whereas a timely diagnosis would have resulted in only a five to ten percent possibility of recurrence. In addressing the issue of recoverable damages, the Swain Court noted:
Id. at 173 (citation omitted). Importantly, the analysis set forth in Swain was in no way dependent upon that increased risk of recurrence being greater than fifty percent.
As to Gill's claim that she suffered damage resulting from her chemotherapy treatment and the surgical removal of her ovaries in anticipation of chemotherapy, we likewise find the evidence is sufficient to present a question for the jury. Generally speaking,
Johnson v. Cormney, 596 S.W.2d 23, 27 (Ky.App.1979) (emphasis added), overruled on other grounds by Marshall v. City of Paducah, 618 S.W.2d 433 (Ky.App.1981); see also Hanson v. American Nat'l Bank
In this respect, the testimony of Drs. Bear and Sud is capable of supporting that it was more probable than not (sixty to seventy percent likely) that a mammogram would have detected Gill's tumor a year and a half prior to her actual diagnosis, and that Gill would have received less treatment if her tumor had been discovered in 2003 or 2004. Furthermore, while Dr. Bear's testimony relating to Gill's chemotherapy is somewhat equivocal, it is our duty to review his testimony in the light most favorable to Gill; in this light, we find his testimony capable of supporting that it is more likely than not that chemotherapy would have been unnecessary if Gill's tumor had been discovered in 2003.
We find no error, however, in the circuit court's determination that any future medical treatment relating to a potential recurrence of cancer is non-compensable. As noted above, Kentucky law allows a plaintiff to recover for damages only where the fact of damage is reasonably certain. See Cormney, 596 S.W.2d at 27. Here, according to the evidence of record, Gill is currently cancer-free and it is at least seventy percent likely, e.g., more likely than not, that she will suffer no recurrence of cancer and, therefore, require no future medical treatment for it.
Similarly, we find no error in the circuit court's determination that Gill's purportedly five to twenty-five percent decreased chance of remaining cancer-free is non-compensable. Without laboring the point, a majority of jurisdictions consider a decreased chance for long-term survival, or lost chance for recovery or a better medical result (due to negligence), as a compensable injury,
In rebuttal, Gill argues that Kemper represents a gross misapplication and misinterpretation of Kentucky precedent, and urges this Court to overrule the Supreme
For these reasons, the summary judgment of the Fayette Circuit Court is affirmed in part, reversed in part, and remanded for proceedings not inconsistent with this opinion.
ALL CONCUR.