Nature of the Case
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Facts
In June 1993, P was scheduled for hip surgery with D. D ordered a chest x-ray to ensure the strength of their lungs to undergo anesthesia. The x-ray revealed a density in the upper right lobe of her right lung. The neuroradiologist generated a report of the x-ray and sent a hard copy of the report to D's office. Neither D nor his office took any action, despite the fact that the report noted a 'density . . . in the upper lobe' and concluded that 'comparison with old films would be of value.' In the spring of 1994, P began spitting up blood and went to another doctor. A second chest x-ray revealed a large mass on the upper right lobe of the right lung. P was diagnosed with non-small cell lung cancer. Because it had metastasized to one lymph node in her chest and the bronchial margin, it was not curable. P underwent extensive chemotherapy and radiation treatment; her condition went into remission in approximately October 1994. P sued D for malpractice. While P was in remission and had yet not suffered any harm, P sued for loss of chance. D moved for summary judgment in that P had suffered no present compensable injury, and therefore, as a matter of law, had no claim. The trial court agreed and the Court of Appeals affirmed in that Section 323 of the Restatement of Torts does not allow recovery for wrongs that increase the risk of harm unless the harm has come to pass. P appealed. This case raises four questions. (1) Does Indiana law permit P to recover for an increased risk of incurring a life-shortening disease under the 'loss of chance' doctrine or otherwise? (2) If so, what is the appropriate measure of damages? (3) Has P suffered an impact that would allow her to recover for negligent infliction of emotional distress under the 'modified impact rule?' (4) May P maintain a cause of action for the aggravation to date of her lung cancer?
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