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THE TWO DISEASE RULE: A DOUBLE-EDGED SWORD

The Superior Court recently decided a case, Klein v. Weisberg, 694 A.2d 644 (1997), which extended application of the two-disease rule to a medical malpractice case. Previously, the rule had been confined exclusively to asbestos cases. While at first blush such an extension would appear to be favorable to defendants since it limits a plaintiff's claim for future damages, broader application of the rule may actually work to the detriment of defendants if the two-disease principle is used successfully by plaintiffs to set aside settlement releases signed years earlier.

In Klein, the plaintiff alleged that the defendant doctor delayed in diagnosing his Hepatitis-C, and that as a result thereof he developed cirrhosis of the liver. Plaintiff also contended that he faced an increased risk of developing cancer due to the defendant's negligence. The trial court dismissed the plaintiff's claim for those future damages and the Superior Court affirmed. The court relied on the asbestos cases holding that a plaintiff with only asymptomatic pleural thickening may not sue for future damages based on an alleged increased risk of lung cancer:

"Just as a plaintiff with pleural thickening is more likely to develop lung cancer than people in the general population, a [plaintiff] who has hemochromatosis and cirrhosis of the liver, has a higher risk of developing liver cancer than do people with healthy livers. However, our law does not permit recovery for these 'increased risk' claims. [Plaintiff] may seek recovery of damages only for the non-speculative injuries he currently suffers." Klein at p. 646.

As a corollary to its holding, Klein stated that if the plaintiff did develop liver cancer in the future, he could commence a second lawsuit and the statute of limitations would be no bar to such a claim.

As noted by Klein, the two-disease rule was first applied in the context of asbestos litigation. Initially in Mariani v. Asbestos Corp., 612 A.2d 1021 (1992), and then subsequently in Simmons v. Pacor. Inc., 674 A.2d 232 (1996), the Superior Court and the Supreme Court respectively held that a plaintiff, who at the present time claims only to have asymptomatic pleural thickening, may not seek future damages for an increased risk of lung cancer. The appellate courts held that lung cancer does not represent a culmination of a "seamless progression" from asymptomatic pleural thickening, but instead is a second disease. Hence, the plaintiff can only sue for damages if and when he develops that disease.

Asbestos cases aside, it has long been the norm in personal injury litigation for the plaintiff to make a present claim for future damages by having the treating physician opine as to his or her prognosis. To the extent the prognosis included the possibility that the plaintiff may develop additional complications or conditions in the years ahead, such testimony has been permitted so long as there is some medical foundation which takes the claim out of the realm of pure speculation. For example, see Boyle v. Pa Railroad Company, 170 A.2d 865 (Pa. 1961), permitting plaintiff's doctor to testify about possible future effects of neck injury; Walsh v. Brody, 286 A.2d 666 (Pa. 1971), holding that plaintiff's doctor should have been permitted to testify about probable future complications from split retina injury; and Grodel v. Inoye, 421 A.2d 674 (Pa. 1980), concluding that plaintiff is entitled to damages for the future possibility that a current cancer condition may metastasize in the future.

Do we have a precise test which allows one to delineate those future conditions which are within the realm of acceptable possibility and those which constitute pure speculation? Not entirely. Our Supreme Court has held that "prognosis" testimony need not be stated to a reasonable degree of medical certainty, the rationale being that a lesser degree of certainty should be tolerated when a physician is being asked, in effect, to predict the future. See Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978) at footnote 10. Beyond that, however, the traditional tort cases offer no litmus test for what constitutes speculation. The absence of a clear guideline may stem from the court's unspoken belief that such fine determinations are best made by the trial judge on a case-by-case basis.

While the plaintiff enjoys the benefit of a relaxed burden of proof on prognosis under the traditional approach, the "equalizer" for the defense is said to be their opportunity to point out in closing argument that the future complications may never arise and, therefore, no money should be awarded to the plaintiff.

Viewed against the backdrop of this traditional approach, the question Klein raises is this: Does this decision signal a new approach in handling claims for future damages, or is it just a minor encroachment on the old rule spawned by the peculiar facts of the case?

For example, will defendants now seek to invoke the two-disease rule to bar claims for future damages when the following current injuries are said to increase the risk for certain future

Current Injury Future Condition
Traumatic Joint Injury-->Post Traumatic Arthritis
Abdominal surgery-->Adhesions requiring more surgery
Hepatitis-->Cirrhosis of the liver
Untreated infection-->Osteomyelitis

On the one hand, defendants may argue that the two-disease rule should apply to these situations since both the medical and public policy considerations relied upon in Klein and the asbestos cases apply with equal force here, i.e. none of these future conditions represents a "seamless progression" from the underlying condition and, in any event, the interests of judicial economy are best served by telling victims to come back to court only if they develop the feared future condition.

On the other hand, plaintiffs will argue that the two-disease rule should be confined to asbestos cases, or at most to cancer cases, for the following reasons. First, while the asbestos cases do cite a medical basis for invoking the rule, the appellate courts almost certainly were influenced by the sheer number of asbestos cases pending statewide in which the plaintiffs only had asymptomatic pleural thickening, very few of whom who would ever develop lung cancer. To the extent the concern over docket congestion is peculiar to asbestos litigation, so too should be the application of the two-disease rule. Second, from a medical standpoint, lung cancer represents such a quantum leap beyond asymptomatic pleural thickening in terms of seriousness that, were the courts to permit all claimants with such a benign present condition to claim damages for such a significant future condition, the asbestos cases would have become a great illustration of the proverbial "tail wagging the dog." Finally, as compared to the typical future conditions at issue in personal injury litigation (e.g. degenerative arthritis), the chances of a patient with pleural thickening actually developing lung cancer are quite remote.

If the courts adopt the defendant's argument and apply the two-disease rule to even more types of cases, that development could ultimately come back to haunt defendants. How so? It could leave them exposed to "repeat" claims that could materialize in one of two contexts.

The first context would be the one specifically contemplated in Klein, namely, the plaintiff does go on and develop liver cancer, in which case he will have the right to institute a second lawsuit for these "new" damages. In such a circumstance, not only will the insurance company have to dredge up an old file, but they will have to pay for someone to re-learn the circumstances of the original case. In the end, the additional investment of time and money may turn out to be greater than what the carrier would have incurred had they never raised the two-disease defense at the first trial. In other words, it may have been cheaper to simply deal with the potential future effects in the first case by persuading the jury that they are so unlikely to occur as to be worth little or no money. Obviously, such a judgment can only be made on a case-by-case basis.

The second context in which the two-disease rule could come back to haunt defendants involves a situation where a plaintiff, after signing a release and settling an underlying claim, "discovers" years later that his recovery has not gone as well as anticipated, and he is experiencing new complications. Under such circumstances, the plaintiff may argue that the complication represents a separate disease and, therefore, the release presents no bar to a new claim for damages.

This latter situation is a potential nightmare for an insurance carrier, for unlike the first scenario, there has been no prior judicial ruling putting them on notice that a certain medical condition --- if it were to develop --- represents a second disease. Thus, in virtually every settlement carriers would have to be concerned that, if the plaintiff begins to experience effects from the injury which, in his mind, were not anticipated, they may be facing a second lawsuit. The inconvenience and additional costs which would go along with such "repeat" claims would be substantial. Even if a defendant eventually proves on motion for summary judgment that the unanticipated condition does not constitute a separate disease, the carrier will no doubt have incurred significant legal costs up to that point, for in order to properly frame such an issue a great deal of medical discovery on both the current injury and the "old" injury will have been done.

Thus, the ultimate irony here may be that a rule designed to decrease claims (at least in the asbestos context) may substantially increase claims if it is applied in all tort cases. In light of this circumstances, therefore, the most sensible approach seems to be to confine the two-disease rule to asbestos cases (and perhaps cancer cases) and to refrain from applying it "across the board" in tort litigation.

John Gismondi on G+

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