Risk Allocation in Tort Cases

Diane Dillon required a catheter to be inserted into a vein in her upper chest during the course of treatment for breast cancer. When Dr. Stephan Sener removed it, he left a 9 centimeter fragment that migrated and became embedded in her heart.

It was determined that removing it would be more dangerous than to just leave it in place. As a result, Dillon suffers an increased risk of infection, perforation of the heart, arrhythmia and further migration of the fragment, as well as anxiety over the fragment’s presence.

A jury awarded the plaintiff $1.5 millions for the past pain and suffering, $1.5 million for the future pain and suffering and $500,000 for the increased risk of future injuries. The appellate court affirmed, but the Illinois Supreme Court reversed because of the inadequacy of the jury instruction on damages for the increased risk of future injury. Dillon v. Evanston Hospital, No. 91517 (decided May 23, 2002).

Although the courts in Illinois have been divided on the issue, the Illinois Supreme Court recognized " a trend toward allowing compensation for increased risk of future injury as long as it can be shown to a reasonable degree of certainty that the defendant’s wrongdoing created the increased risk." ID., at p.8

In fact, it can be argued that a separate cause of action has been recognized by the court, dealing with prospective future health problems. Only future cases testing this precedent will clarify that matter.

In any event, this type of recovery relies upon a fundamental concern of tort law: allocation of risk. Given the widespread acceptance of insurance and the sudden bailout of the stock market, it is clear that being free from risk is a valued commodity in today’s society.

Future damages, though. are considered a nontraditional type of tort recovery. Courts have grappled with the issue in various ways. Some have focused on the effect that the chance of suffering a future disease or condition has on the plaintiff’s mental well-being. Therefore, these courts have found that damages for mental anguish are a present injury and are compensable, regardless of whether the plaintiff actually gets the disease of condition. Jackson v. Johns-Manville,781 F2d 394 ( 5th Cir. 1986).

Some jurisdictions have focused more on the future disease of condition itself and have allowed recovery for damages for the actual future materialization of the disease or condition. Some courts have used a novel approach called the "tow-injury rule" in the absence of a present claim for injury .

This approach allows a plaintiff to forego a present suit for a minor injury and preserve the right to sue later if a more serious injury develops in the future. This concept has been adopted, for instance , in cases involving exposure to asbestos where mesothelioma often develops years later. Wilson v. John Manville, 684 F2d 111 ( D.C. Cir 1982).

Some courts have split the cause of action in a different way and allowed recovery for an enhanced risk of disease only when present physical manifestations of the illness are present. Deleski v Raymark Industries, Inc., 819 F3d 977, 380 (3d Cir. 1987)/

Still other courts have allowed recovery for the injured person’s altered circumstances, taking into consideration the risk, reasonable probability or potential for future damages. Illinois appears to follow this approach.

In Dillon, the court relied on Anderson v. Golder, 279 Ill App. 3d 398 644 N.E. 2D 1137 (3d Dist. 1996), and found, " An award of damages for an increased risk of future injury is proper only if it can be shown to a reasonable degree of certainty that the risk was proximately caused by the defendant negligence. Therefore, there is no element of speculation or conjecture in awarding damages for increased risks." 279 Ill. app. #d at 400-401. Certainly expert testimony is critical here in linking the prospective injury to negligence.

The Illinois Supreme Court also turned to Petriello v. Kalman 215 Conn. 377, 576 A. 2d 474 (1990), for its established pattern jury instruction promulgated on the topic. In Dillon, the court found that the instruction promulgated on the topic. In Dillon, the court found that the instruction give at trial had been inadequate because it failed to convey the principle that " the increased risk must be based on evidence and not speculation and more importantly the size of the award must reflect the probability of occurrence." Dillon at p. 10.

It is instructive to examine the Restatement 2d of Torts, sect. 912 comment e (1979), which states that " when an injured person seeks to recover for harm that may result in the future, he is entitled to damages based upon the probability that harm of one sort or another will ensue and upon it probable seriousness if it should ensue... There is no mathematical formula that will determine the chance of the harm occurring or that will gauge the monetary equivalent of the chance of loss...

" This factor does not, however, prevent recovery for money damages, even through in the great majority of cases the amount will no correspond even approximately to the harm that will be suffered, since the amount is arrived at by considering probabilities, both favorable and unfavorable, that seldom forecast what will happen to a single individual."

In any event, the theory to allow recovery for an enhanced risk claim that seeks compensation for the anticipated harm or the increased apprehension of such harm is sound given the well-established principle that a plaintiff is entitled to compensation for the full extent of the injury. It is also consisted with tort law that embraces the notion that it is the defendant, rather than the innocent plaintiff, who should bear the risk of harm.