Murphy's Law

Zieber raised a claim of a negligently delayed diagnosis of bowel cancer, leading to advanced disease and risk of metastasis or “recurrence.” Because the disease in its progressed form actually existed, and was therefore not speculative, the Superior Court found future damages for possible metastasis were immediately recoverable.

There is nothing extraordinary about the Superior Court’s decision in Zieber. Indeed, under the traditional “impact rule,” the occurrence of a cancer that was allegedly diagnosed late required Zieber to include the risk-of-metastasis claim as part of his action. There is no mechanism for a second suit in which to raise it later.

The rule is that a plaintiff must seek recovery in one trial for all actual and likely harm following any physical harm. This includes any emotional injury over the victim’s future life as well as any future medical complications.

Only asymptomatic asbestosis cases reserve for later any claim for actual cancer. Those cases are specially governed by the “two-disease rule” that tolls the limitations period until the dreaded risk materializes.

The medical defendant in Zieber, seeking to shed a jury’s verdict, apparently seeks on appeal a change in the “impact rule” similar to the adjustment in asbestos cases. The argument is that the possible future recurrence of a once-present cancer should also be unrecoverable because it might never happen.

If successful, this new rule would either strip a plaintiff of any right to compensation even if the cancer develops or require a second suit in the event of a recurrence.

AIDS Task Force Case

The other case recently accepted for review, AIDS Task Force, involved a claim of emotional distress due to a mistaken diagnosis that the plaintiff had AIDS. The plaintiff eventually learned he never really had the disease at all. Until that discovery, however, he underwent treatment, from which he suffered some symptoms, in addition to the severe distress in thinking he was going to die from the disease.

The Superior Court denied the plaintiff any cause of action, saying the minor physical harms weren’t enough to “bootstrap” a “physical impact.” To the extent that the “impact rule” has traditionally meant that any physical injury puts all distress damages at issue, the Superior Court decision in AIDS Task Force makes the rule harder for plaintiffs to satisfy.

The decision does not, however, abandon the “impact rule.” It just raises the bar for measuring what constitutes an “impact.” AIDS Task Force is not a pure “fear of disease” case, anymore than Zieber is. There was some actual physical insult – in this case, the effects of treatment occasioned by the wrong diagnosis.

In making an “impact” next to impossible to show in false-diagnosis cases, AIDS Task Force goes against the assessment of Pennsylvania law given by the 3rd Circuit in Moore v. Delaware Valley Health Network, (3d Cir. Sept. 2, 1995) (not-for-publication). The court in Moore held that a false diagnosis of tuberculosis did state a claim for “fear” because physical treatment and medication had been administered.

Zieber and AIDS Task Force, viewed together, do not present any opportunity to expand plaintiffs’ rights to sue. They are both cases that appear to fit the “impact rule” and previously recognized avenues of recovery. The decision of these cases will either confirm the traditional rules applicable in non-asbestos cases or retract them.

This is just another sign that the tort pendulum may have swung to the stingy side.

Baby Makes Three