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Medved v. Glenn11/15/2005
On Certiorari to the Utah Court of Appeals
INTRODUCTION
In this case, we are asked to determine whether plaintiff Jamie Medved may assert a cause of action for present and future damages resulting from the failure to diagnose her breast cancer, when the future damages are based on the mere possibility that her cancer will recur. The court of appeals held that Ms. Medved cannot file suit unless and until she has experienced a recurrence of her cancer. We reverse.
BACKGROUND
In August 1997, Ms. Medved visited her gynecologist, Dr. C. Joseph Glenn, after discovering a lump in her right breast. Although Dr. Glenn noted the lump, observed fibrocystic changes in both breasts, and recommended that Ms. Medved conduct future self-examinations to track the size and shape of the lump, he failed to order a mammogram. Several months later, in February 1998, Ms. Medved returned to Dr. Glenn, again complaining of the lump in her breast. Dr. Glenn observed that the right breast had undergone additional fibrocystic changes, but again failed to order a mammogram.
On July 13, 1998, Ms. Medved consulted with Dr. Blayne L. Hirsche, a plastic surgeon , concerning both the removal of the lump in her breast and a breast augmentation. During the initial examination, Dr. Hirsche discovered several cysts in Ms. Medved's right breast and, as a result, recommended that she have a mammogram. While the results of the mammogram indicated that there was no evidence of malignancy, the report noted that the mammogram may be less sensitive due to the heterogeneously dense nature of Ms. Medved's breast.
On August 12, 1998, Dr. Hirsche performed a breast augmentation on Ms. Medved, but did not remove the cysts. He did attempt to aspirate three cystic areas, but he obtained very little fluid and did not send it to pathology for evaluation. Four months later, after monitoring the cysts, Dr. Hirsche performed a biopsy on the three lesions. The biopsy indicated that Ms. Medved was suffering from infiltrating ductal carcinoma that had spread to eight lymph nodes. As a result of her diagnosis, Ms. Medved underwent a mastectomy, radiation, and chemotherapy.
On March 5, 2001, Ms. Medved filed a complaint against Drs. Glenn and Hirsche for medical malpractice, alleging that, as a result of her delayed diagnosis, she suffered damages in the form of having to undergo more extreme and invasive treatment, including a mastectomy, chemotherapy, and radiation, than she would have had to undergo had defendants timely diagnosed her cancer. Additionally, Ms. Medved sought damages based on the increased risk of a recurrence of her cancer and the possibility of future medical expenses.
Defendants filed a motion to dismiss Ms. Medved's complaint pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure, arguing that, under this court's opinion in Seale v. Gowans, 923 P.2d 1361 (Utah 1996), Ms. Medved could not plead a legally cognizable injury unless and until she experienced a recurrence of her cancer. The district court granted defendants' motion, holding that it could find "no legally recognized claim" when Ms. Medved "has claimed an increased risk of cancer recurrence, but has not claimed an injury clearly related to that risk." Ms. Medved appealed the district court's order of dismissal.
The court of appeals affirmed the district court, declaring that Ms. Medved's "claim for the increased risk of recurrence of cancer is 'not actionable.'" Medved v. Glenn, 2004 UT App 161, 10, 92 P.3d 176 (quoting Seale, 923 P.2d at 1364). In so holding, the court of appeals rejected Ms. Medved's argument that, under Seale, she was permitted to b
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