In the recent decision in Gill v. Burress, 2011-CA-332 (4/13/12) http://opinions.kycourts.net/coa/2011-CA-000332.pdf, the Kentucky Court of Appeals held that a plaintiff who claims a negligent delay in cancer diagnosis may pursue damages for (1) mental anguish, emotional distress, and loss of enjoyment of life due to increased fear of possible cancer recurrence and death; (2) compensatory damages arising as a result of chemotherapy treatment and associated surgery; but not for (3) a five to twenty-five percent decreased chance of remaining cancer-free; or (4) future medical treatment relating to potential recurrence. The Court found the latter two categories of damages were effectively barred by the Kentucky Supreme Court’s holding in Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2008), which rejected loss of chance claims where the reduced chance of survival is less than 50%. Nevertheless, the Court permitted the claim for the first two categories to go forward, citing Kemper and Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984), based on expert testimony that a diagnostic procedure should have been done and probably would have detected the cancer 18 months earlier, and that had such earlier detection occurred the plaintiff would have received less treatment.
The opinion was designated for publication in the South Western Reporter but is not yet final. Nonfinal decisions should not be cited as precedent.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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