Physicians in Colorado may be liable for emotional distress damages if they fall below the legal standard of care in failing to aggressively pursue and definitively diagnose symptoms of cancer or other life-threatening diseases in a timely and responsible manner. So long as an increased risk of harm develops from the unchecked growth of cancer [even though the risk is unlikely to materialize], medical malpractice plaintiffs in Colorado have a cause of action for emotional distress resulting from a delayed diagnosis. This article examines the recent opinion of the Colorado Supreme Court in Boryla v. Pash and its likely impact on physicians and patients in Colorado.
Factual Background of Boryla V. Pash
In Boryla, the patient contacted her family physician after performing a breast self-examination in which she discovered a lump in her right breast. The family physician after confirming the presence of the mass referred the patient to a surgeon for further evaluation. Rather than performing the nationally recognized three prong test of physical examination (including manual palpation), mammogram, and fine needle aspiration before proceeding to surgery, the defendant physician, after attempting to manually palpate the lump, proceeded to a surgical biopsy.
The results were reported as negative. When the lump did not resolve, the patient returned to the surgeon on two occasions reporting persistence of her mass. Ninety-two days later, the physician, for the first time, ordered that a mammogram be performed. The mammogram revealed a very large spiculated lesion highly suspicious for cancer. A second biopsy revealed the presence of infiltrating, intraductal adenocarcinoma, the most common form of breast cancer.
The patient underwent a radical mastectomy and surgical removal of several lymph nodes from under her arm, one of which was positive for cancer. Thereafter, a prescribed course of adjuvant therapy including chemotherapy and tamoxifen followed. The surgery was successful and there has been no recurrence to date. The patient brought suit against the surgeon for hedonic damages, including emotional distress and impairment of the quality of life, arising from the increased risks of cancer and tumor growth during the delay.
Significance of Boryla v. Pash
Medical practitioners and patients alike generally accept that early detection of cancer is a key factor to the successful treatment and prevention of breast cancer and other similar diseases. The Colorado Supreme Court, through the Boryla opinion, has endorsed the importance of early detection of life-threatening diseases by acknowledging the potential liability of physicians who do not adhere to a reasonable standard of care and thereby deprive their patients of earlier treatment. This opinion will encourage physicians and health care providers, particularly cost conscious HMOs, to aggressively test, identify and treat any and all potential symptoms of cancer and other life-threatening illnesses at the earliest possible date.
Health insurers should similarly be compelled to authorize all necessary additional procedures to definitively diagnose a patient who presents with suspicious symptoms, particularly where life-threatening disease is at stake.
The Supreme Court in Boryla held that a patient's physically worsened condition as a result of a delayed diagnosis was enough to establish an attendant physical injury. The patient was able to show, again through expert testimony, that there was an increase in the size of the tumor and multiplication of the number of cancer cells in her body, that she was exposed to the risk of metastasis of existing cancer cells, and that the disease continued to develop further genetic resistance to treatment. The Court acknowledged that the progressive evolution of her metastatic disease established the requisite attendant physical injury necessary to allow the jury to consider damages for the emotional distress flowing as a natural and proximate result from the claimed negligence.
Public Policy Concerns
Public policy concerns raised by the Boryla decision include the potential that judges and juries will have special difficulty in separating valid, significant claims from those that are trivial or immaterial, the potential threat of unlimited and unpredictable liability, and the potential for a significant increase in the number of malpractice claims. The Colorado Supreme Court in Boryla, however, recognized that judges and juries are regularly called upon to make difficult decisions, and that the concerns about opening the floodgates to litigation are not founded where the class of potential plaintiffs in a malpractice case is limited to the parties receiving medical treatment.
The Court found that traditional notions of tort liability applied in Boryla. A plaintiff in a medical malpractice case must still prove all of the elements of a medical negligence claim including duty, breach of the standard of care, actual and proximate cause and significant injuries, which should sufficiently eliminate fear of cancer claims that are unreasonable. Therefore, the presentation of credible expert testimony that a patient's fear of cancer is reasonable is still recommended notwithstanding MacMahon's contrary instruction.
Conclusion
Traditional tort principles allow recovery for injuries that follow as a natural and probable consequence of a defendant's negligence. The Boryla opinion recognizes that the fear of an increased risk of future recurrence of cancer follows as a natural and probable consequence of the negligent failure of a physician to promptly diagnose and treat this life threatening disease.
Patients in Colorado will now be able to recover for reasonable fears of an increased risk of future disease caused by physical injuries sustained as a result of a physician's negligent failure to promptly diagnose and treat their disease, even though there may not be sufficient evidence to support the probable recurrence of that disease.