Howard v. Mt. Sinai Hospital, Inc.
219 N.W.2d 576
Wis.
1974
Check Treatment

*1 Howard, Respondent, Inc., Hospital, Mt. Sinai another, Appellants.* Argued May 8, 1974. No. March 271. 1974.Decided 576.) (Also reported in 383 and 219 N. 217 W. 2d W. * rehearing costs, denied, Motion for without on June *3 by Powell, Borgelt, appellants there a brief For Frank Frauen, attorneys, and A. Peterson & Scherkew- by argument counsel, Milwaukee, and oral baeh of all Scherkenbach. Mr. by Warshafsky, respondents brief

For was a C., and Alan Gesler Tarnoff, attorneys, Rotter & S. E. argument by Mr. counsel, oral Milwaukee, all of Gesler. appeal

Wilkie, relates The sole issue J. on this phobia damages: whether the element is develop cancer will compensable. question one

Negligence then is is conceded. The sole par- long-standing on rule whether a causation. The compensable is: is ticular claim sequence events plus an unbroken of lead to “. establishing necessarily not does cause-in-fact plain- the defendant liable determination liability injuries. impose not The determination to tiff’s where of remoteness cause] instances [because negligent a ‘sub- committed and act act has been causing stantial factor’ in consider- rests public policy.” ations of Applying liable have held a defendant rule, we safety injuries solely by for another’s sustained Again grounds, physical impact.2 public policy on without by flying object, arm a plaintiff, held a hit on the we have driving contributory negligence in with his liable for cases,4 on In and other arm out the window.3 these his liability impose public policy grounds, we have refused liability imposition sound would offend where such Today the Reshan public policy.5 considerations of liability, pub impose on again Case have refused we conspicuously north policy grounds, lic where a county of control went out on 1-94 Racine bound car hitting strip a car which across median moved only southerly and the proceeding on 1-94 respect to car was with of the driver of southbound objects in the maintaining improper lookout for strip. median are considerations cases these

In these although not legal regarded cause, as an element Ry. Chicago Co. (1970), 48 2d North Wis. v. & Western Hass (1957), v. Mandella 885, quoting 1 Wis. 321, 326, 179 2d W.N. also: Standard 2d 345. See 85 N. W. Pfeifer Gateway Theater, 29; Inc. 55 W. 2d Wis. N. Montgomery 234 W. 372. 203 Wis. Osborne Light Co. Milwaukee Gas Wis. Klassa v. *4 2d 397. N. W. 3 Schilling 525, 133 2d 335. v. Stockel 26 Wis. 2d N. W. 4 Longberg 2d v. H. L. Green Co. 15 Wis. See: Mandella, supra, v. and Colla 435; 129, 114 W. 2d 113 W. 2d N. N. 598, pages footnote at 5 Ry. Co., supra, Chicago v. & North footnote at Hass Western Mandella, supra, quoting Colla v. pages 326, 327, footnote pages 598, 599. Harvey, post, p. 524, v. Reshan 217 W. 2d 302. N. part fact, of the determinations of in this cause which court as refers to “substantial factor.” although In this case, question there is no being in fact a fear of dam- cancer, future the claim of ages (by way cancer) of is out is so remote so proportion culpability as a that, tort-feasor matter of the defendants policy, we conclude damages. not to are held liable for this element of juris- by plaintiff from other three cases cited support this element in contention dictions her damage point as we are because even stated, prevailing have rule Wisconsin though phobia the defendants fact, the fear or exists in public policy where, here, are not held accountable as court, of this compels because of the remoteness liability. damage, defendants from to excuse award we have here Since ruled present fear plaintiff’s included a for the sum must compensable, have we cancer which we found judgment a retrial on and remand for reverse damages. all Appellants a new trial on seek issue rulings during evidentiary the con- While various issues. they appear challenged, are trial to relate duct of the sought to in which the primarily manner present a future existence of the establish public policy holding here based on harm. our With disallowing recovery her involved considerations anxiety consequence, we find a future ordering a trial on other than new basis reason judgment damages. Therefore, the is set aside the issue of Mandella, supra, Standard 1; v. Gate v. footnote Pfeifer Duty, Inc., supra, way Theater, 1. See also: Campbell, footnote Legal Cause, Fault, L. 1938 Wis. Rev. 402. Hartley (D. Dempsey 1951), Supp. 918; C. Pa. 94 Fed. 729; Ferrara v. Railroad N. Atl. Smith H. Supp. (1958), 6 Y. 2d 176 N. E. Y. N. Galluchio 2d 249.

on the damages issue of only, a new trial in the in- justice terest of is ordered on that issue alone.

By Judgment part; affirmed in reversed Court. — part; in proceedings and cause not remanded incon- opinion. sistent with this (concurring). joins J. The writer Robert Hansen, W. majority holding, in on the facts of that as case, policy

a matter public plaintiff’s as to a future imagined having consequence, basis, no reasonable not a element recoverable in this case. agrees long-standing writer that point rule on this egligence in this state is that plus an unbroken [n] sequence establishing of events cause-in-fact does necessarily to a lead determination that the defendant injuries. plaintiff’s for the liable The determination to impose liability instances where a act has been committed and the act is a ‘substantial factor’ causing injury rests considerations of policy.” determining Public is involved in particular damage whether a claim of a matter of law.2 However, additionally the writer would make clear (which as to a future harm “phobia” describes the fear or which the here develop had she would future) cancer in the is not compensable whenever the future harm feared cannot reasonably apprehended to result Chicago Ry. Hass North & Western Co. Wis. 2d 321, 326, 179 N. W. 2d 885. Gateway Theater, v. Standard Inc. Pfeifer Wis. holding: N. W. this court jury “. . . If the does determine negligence, there was and that such producing substantial injury, factor is then for the court to decide as a matter of law whether or not considerations of public policy require liability. there be no . . .” See also: Montgomery (1931), Osborne v. Wis. 234 N. W. *6 rule law, sustained. This based on one jurisdictions,3 the rule in most with considerations, is going state, “. . we know of court as to . state so far mag- injured permitted to party case the been where has jury to damages by calling the nify the the attention altogether groundless that and never material- fears were 4 ized. ...” reality the that contrary contention For her ought be that for is all any it, fear, reasonable basis upon three plaintiff compensability, relies required for holding an court One, a state out-of-state decisions. entirely mis appear that an to hold state, eastern does ele is a of future harm taken fear upon, case relied damages.5 in the second But, ment of state, eastern decision an court a district federal involved that fear to establish admitted evidence was judge only, held “. reasonable, the trial and I that case feel of this the circumstances Under develop plaintiff this entirely reasonable injury to her the severe result of cancer ment third In the case by accident.” this caused breasts Condition, Damages Anxiety—Future Annot. See: — anxiety citing holding cases R. 2d A. L. having basis, re not a consequence, no reasonable imagined damages. coverable Ky. Davis Co. v. Nashville R. Louisville & 278, 250 W. 978. S. 177 Atl. 87 N. H. Railroad Smith along injured walking plaintiff, a testimony holding a while by injuries a fear that track, reason of the had that she railroad paralyzed might to be admissible legs future become her holding . . even an element of “. to be such and though . .” mistaken. . the fear was Hartley 1951), Supp. Dempsey (D. 94 Fed. C. Pa. present fear holding to reasonable basis for evidence as admissible showing only purpose this “. . . for future harm not very development fear of the of cancer of plaintiff real did have respect breast,” “. her to establish . . that fears but also page . .” Id. . were reasonable. cited, a state court case in an eastern jurisdiction, treating court by held admissible a made statement dermatologist badly plaintiff have she should every burned checked shoulder six inasmuch as months might the area cancerous, of the burn become such six- checkups being by dermatologist month considered protective measure, essential as a con the court cluded, entirely “. . It . circum plausible, under such stances, undergo exceptional mental suffering possibility developing over cancer. requiring finding ...” While a reasonable basis any present anxiety harm, toas the New York *7 “‘Liability damages State case makes clear that: for by wrong by point caused at a ceases dictated ” 8 common or sense.’ applicable find the in this writer would rule of law assuming negligence and state elsewhere to be and consequence compen- a fear future causation, of a is not negligence in sable as action if there is established no reasonable such fear. basis for recovery may that pub This court has said on be denied policy grounds injury lic the . where “. . is too remote negligence ‘wholly proportion or too out of 9 culpability the tort-feasor’ ...” Where is, us, case no claim of connected before injury ness between sustained and a eonse- 7 Supp. Ferrara v. Galluchio 5 N. Y. 2d Y. 176 N. personally 152 E. 2d “. . . was advised by specializing dermatology might a doctor that her wound develop should, therefore, into cancer and that she it have checked every six ...” months. page (citing Id. at Milks v. McIver 264 N. Y. 487) stating: court also 190 N. E. “It is self-evident that every according peculiar case be must decided to the facts to it. ” turn, must, ‘pragmatically.’ Each case . . . be solved Mandella Colla v. Wis. 2d 85 N. W. 2d 345. quence remote, and cancer,10 is too damage wholly to the proportion claim of out of recovery culpability that have tort-feasor. We said too may retrospect appears it be “. . in denied where . highly extraordinary have that should brought Here it not even about the harm ....”11 negligence brought claimed that an increased consequence have of the future feared.12 We likelihood recovery may . . allowance said be denied “. where recovery place a burden would too unreasonable ele . In us, ...” the case before allowance of this damage heavy unpredictable place ment of would profession minor burden the medical the most inconsequential professional have said errors. We recovery may would be denied where its allowance open likely way . claims “. . be too to fraudulent recovery may denied . . . .” have said We recovery granting . a field where “. . would ‘enter just point.’ If the stopping has no or sensible ...” slightest re accidents could result fender-bender developing covery claim for a or baseless fear of fear of years later, cancer be difficult or arthritis “phobias” claimed once draw the line between various any all of them held unneces a reasonable basis “Respondent Plaintiff-respondent’s brief, page 6, states: *8 attempted prove neither intended nor to that Mrs. Howard would develop pieces.” cancer from the catheter 1 1 Mandella, supra, page at Colla v. 599. 12 Plaintiff-respondent’s pages 7, jury brief, 6, at states: “The opening that cancer told statement was a realistic possibility, Respondent prove and that that she feared cancer. Respondent prove citation What the did to a omitted.] [Record probability fear, reasonable medical was the fact of not the fact of cancer. .” Mandella, supra, page at 599. page Id. at 599. page (Quoting Warrington Id. Waube 613, citing cases). 258 W. and Wis. N. other 528a disallowing

sary recovery. to All the for of reasons cited recovery converge public policy grounds on this case applicable generally rule that to make here the followed present compensable a of fear a future harm is not to be a a of the absence establishment of being and an reasonable basis for such fear entertained possibility consequence increased will feared injury arise as a result sustained. opinion appears approach majority as

What response particular situation, a fact individuated generally accepted rule application of a writer as sees as That rule holds to the facts of this case. of law considerations, upon public policy a matter of law based not a as to a future harm is damages if there is no reasonable basis element being in- entertained and no established consequence developing possibility feared creased injury sustained. a result following opinion filed June The rehearing). (on opinion motion Per Curiam represents correctly It the law state. states Mandella departure position of Colla v. new 2d Hass v. Chi 85 W. Wis. 2d cago Ry. Co. 2d North Western Wis. & hold, consistently 885. Those cases with 179 N. W. court, that foreseeabil established law this ity particular not an element of the deter of the harm is may Although injury negligence. specific mination of considerations, subject possible policy foreseen, liability if there is chain an unbroken we will find act to the from sustained causation factor. if the is a substantial though such an unbroken chain Even exists liability find if court concludes causation, will not we

523b be recovery would particular allow to case contrary public policy. to may public policy be factors

Some of various the face appropriately deny liability even in invoked to were listed of an of causation unbroken chain supra, Mandella, at 599: negligent highly extraordinary brought recovery has way to fraudulent users [2] “[T]he no sensible too of the ‘wholly would tort-feasor/ highway, out of is [1] place too unreasonable a burden just claims, harm, proportion stopping or [3] too remote or or [5] or [4] [6] point.’ retrospect would to too because ” likely ‘enter a field culpability allowance should have appears open upon too or upon particular case factor relied this recovery analogous to number allowance because place doctors too unreasonable burden physicians. question foreseeability in case nor

There is this physician any negligence of question that the causing phobia, the exist- the cancer factor substantial undisputed. ence of which is particu- under the hold circumstances

We permit contrary public policy case, lar it would be phobia and re- physician to be cancer liable negli- that followed of neuroses manifestations lated gent of the catheter. insertion