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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.1

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.2

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.3 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 Boryla decision relies heavily upon the 1977 Court of Appeals opinion in MacMahon v. Nelson, which permitted an award of compensatory damages where the defendant doctor improperly delayed for eight months the diagnosis of a cancerous tumor in the plaintiff's neck.4 The Colorado Supreme Court through the Boryla opinion has reinforced the vitality of a claim for emotional distress damages where the patient has suffered a physical impact as a result of medical negligence. Plaintiffs may recover for fear of an increased risk of future recurrence of disease [even if it is unlikely that the disease will recur] if accompanied by an attendant physical injury following a failure to promptly diagnose a life-threatening disease. Recovery is not limited to cases of breast cancer and may more broadly apply to any serious illness where a progressive disease process is presented.

The Supreme Court upheld a patient's right to recovery, not for an increased risk of cancer per se, but for the fear of an increased risk of cancer, where the fear is reasonable. Reasonableness is determined based on the evidence in a given case. In Boryla the patient presented expert testimony to support the reasonableness of her fear. In MacMahon, the Court of Appeals went so far as to state that medical testimony was not necessary since emotional distress was fully within the personal knowledge or experience of the jury.5

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.6 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.7 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.

COMPARISON WITH TOXIC TORT CASES

Boryla v. Pash is also significant because it draws a critical distinction between cases where the disease is already present at the time of the misdiagnosis and is allowed to progress as a result of a physician's negligent conduct, and cases where the plaintiff has been exposed to toxic substances or carcinogens but has not yet contracted the feared disease. At the time of her misdiagnosis, Mrs. Boryla was already afflicted with a potentially deadly disease which was permitted to remain undetected in her body and continued to invade healthy tissue, resulting in an increased risk of future recurrence of cancer and in emotional distress. This is very different from cases where plaintiffs, at the time of asserting their claims of toxic exposure, have remained disease and symptom free and are likely to remain so in the future.

The United States Supreme Court in the recent case of Metro North Commuter Railroad Co. v. Buckley addressed plaintiffs who had been exposed to a toxic substance (asbestos), but had not yet manifested any disease, such as cancer.8 The plaintiffs were denied recovery under the Federal Tort Claims Act for emotional distress because the plaintiffs did not exhibit the requisite physical injury so as to invoke traditional tort theories of recovery. However, in the case of misdiagnosis of cancer, the negligence physically impacts the patient by allowing the disease to progress, evolve and further enhance the risks that treatment will not be successful. Metro North seems to recognize recovery in factual situations such as Boryla where the requisite physical injury is the continuing development of the already present disease, acknowledging that state and federal courts traditionally permit plaintiffs who suffer from negligently caused injuries to recover for derivative emotional distress.9

The defendant physician in Boryla v. Pash asked the appellate courts to adopt a "more probable than not" standard for the recovery of emotional distress damages relying on another toxic tort case Potter v. Firestone Tire & Rubber Co.10 The Potter standard requires the plaintiff to prove that it is more likely than not that the plaintiff will develop cancer in the future in order to recover for attendant emotional distress.11 Potter involved four landowners who were exposed to carcinogens in their drinking water as a result of Firestone's disposal of toxic chemicals at a landfill. Although the landowners had ingested the water, the landowners could not show they had a present physical injury and could not show that it was more probable than not that they would develop cancer in the future. The plaintiffs were denied recovery for emotional distress damages associated with their fear of developing cancer because they could not show that a disease process was at work.

The Colorado Supreme Court rejected the physician's argument for adopting the Potter holding under the Boryla facts and in medical negligence cases generally, reasoning that the more probable than not standard is not appropriate in cases where fear of cancer results from a delayed medical diagnosis where the plaintiff has demonstrated a sufficient present physical injury.12

THE ATTENDANT PHYSICAL INJURY: THE SECOND CIRCUIT'S APPROACH TO TOXIC EXPOSURE IN STONEWALL

In an opinion issued July 16, 1998, the United States District Court of the Southern District of New York on remand from the Second Circuit addressed the process by which cancer develops with respect to the existence of an "injury."13 In this case, Plaintiffs who were exposed to asbestos brought claims alleging that exposure to asbestos caused them to develop cancer. The trial court determined that a person who developed cancer as a result of exposure to asbestos was injured at the time of exposure and continuously thereafter until the time of death or cure. On appeal, the Second Circuit affirmed that finding and remanded the case for a determination as to which liability policy years were covered. The question for the court centered upon what years claimants were injured by the exposure to asbestos before their cancer was diagnosed.

According to Judge John S. Martin:

The general process by which cancer develops is well known. . . [A] cancer that is eventually diagnosed can be traced back to a single healthy cell which has undergone four to six mutations over a period of years until it becomes cancerous. That single cancer cell then proliferates at a rapid rate through a process referred to as clonal expansion until the body has billions of cancer cells, some of which may break off from the original mass and migrate to other parts of the body.14

Judge Martin pointed out that what is not known, however, is when any particular step in the process occurs and exactly when asbestos, carcinogens, environmental factors or other causative agents contribute to the process. For example, while most asbestos fibers are expelled from the body shortly after exposure, some remain forever and eventually break up and implant themselves in new cells. Thus, in any individual case of cancer caused by asbestos, it cannot be said with certainty whether the cancer developed from cell damage caused at the time of exposure or from damage done some years later when an asbestos fiber broke up and caused a new injury.15

As difficult as it is to fix the time of the event which initiates the contribution of asbestos to a particular cancer, it is even more difficult to determine exactly what contribution asbestos or the causative agent may have made to that process. For example, there are several ways in which asbestos can contribute to the development of cancer. The process by which the body's immune system attacks asbestos at the time it invades a cell generates oxygen-free radicals which may (a) damage a cell's DNA, making the cell susceptible to mutation from asbestos or other environmental agents, e.g., tobacco smoke; (b) increase the rate of cell proliferation which increase the likelihood of spontaneous genetic mutation in otherwise healthy cells; (c) increase the rate of proliferation in already mutated cells causing the body to have an increased number of such cells, thereby increasing the risk of further mutation.

The asbestos fiber may itself lodge in a cell in a manner that:

a) causes a mutation;
b) makes the cell susceptible to mutation;
c) accelerates the rate of cell expansion, or
d) reduces a cell's ability to prevent excessive expansion.

The scarring process resulting from the body's removal of asbestos may itself contribute to the development of cancer.16 No one can tell at what point in any particular case asbestos or other causative agents becomes involved in the process of cancer development. Other than knowing that a person was injured at the time of exposure to asbestos when the asbestos fibers became imbedded in the lungs, no one fix with any certainty the precise time that asbestos contributed to the development of the cancer. 17

The judge found:

[The greatest damage from asbestos is done at the time of exposure [when] the body quickly rids itself of the vast majority of the asbestos fibers. Thus, it is more probable than not that the single cell which ultimately developed into the cancer received its initial injury at the time of exposure. It is also more probable than not that the injury sustained by that cell caused it to proliferate at an accelerated rate thereby facilitating the subsequent mutations necessary to develop a full blown cancer. This proliferation of damaged cells is a continuous process. The damaged cell reproduces itself several times a year. Each replication of a damaged cell constitutes a new injury.18

At first blush it may appear that the mere proliferation of a cell which in itself causes no damage should not be considered an injury. However, if physicians could identify these cells and there was a reasonably safe procedure by which they could be removed, sound medical practice would be to remove them, just as physicians routinely remove precancerous lesions on the skin. Therefore, the Court in Stonewall ruled that such a proliferation of damaged cells is an injury.19

Perhaps there will come a time when medical science will be able to establish the precise time in which each change in the cancer process occurred, until then, courts must deal in probabilities. In Stonewall, the court found with respect to lung cancer that it is more probable than not that in any individual case, the cancer sufferer was injured at the time of exposure.20

This same reasoning could be argued in toxic tort cases resulting in cancer or other life-threatening disease processes to attempt to establish physical injury sufficient to claim damages for emotional distress, even where the disease is cured and no future recurrence is probable. Conversely, given the dicta of the Boryla decision distinguishing toxic tort claims from medical negligence claims, it could also be argued that the Colorado Supreme Court would not go as far as Judge Martin's analysis, even if sufficient evidence is introduced at trial that exposure to a toxin probably initiated the disease process. Further, the United States Supreme Court's decision in Metro North provides a basis for courts to decline recovery to victims of asbestos exposure who have not manifested symptoms of disease.

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.21

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.

ENDNOTES

1. Boryla v. Pash, 960 P.2d 123 (Colo. 1998).
2. Id. at 125. Mrs. Boryla brought the original action in reliance on prior precedent in Colorado established by MacMahon v. Nelson, 568 P.2d 90 (Colo. App. 1977) cert. denied (1977).
3. See Evers v. Dollinger, 471 A.2d 405 (N.J. 1984).
4. See note 2, supra.
5. 568 P.2d at 91.
6. See Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978).
7. Boryla, 960 P.2d at 127.
8. 117 S.Ct. 2113 (1997).
9. Id. at 2117.
10. 863 P.2d 795 (Cal. 1993).
11. Id. at 816.
12. Boryla, 960 P.2d at 128.
13. Stonewall Ins. Co. v. Asbestos Claims Management Corp., No. 86 Civ. 9671 (JSM) (S.D.N.Y. July 16, 1998).
14. Id., slip op. at 3-4.
15. Id.
16. Id., slip. op. at 5.
17. Id., slip op. at 6.
18. Id., slip op. at 6-7.
19. Stonewall Ins. Co. v. Asbestos Claims Management Corp., 73 F.3d 1178, 1198-99 (2d Cir. 1995).
20. Stonewall, slip op. at 9.
21. Id., slip op. at 15-16.

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