The following questions of law have been certified by the United States District Court for the District of Delaware pursuant to Article IV, Section 11(9), of the Delaware Constitution and Supreme Court Rule 41:
I. Recovery for Increased Risk of Harm Viewed as a Present Change in Position
a. May a plaintiff who successfully asserts a claim pursuant to 18 Del.C. § 6853 recover, as an element of damages, for increased risk of harm stemming from the fact that defendant’s failure to diagnose, which constitutes a deviation from the standard of care, caused, to a reasonable medical probability, plaintiff to become more likely to suffer a recurrence of cancer?
b. May a plaintiff bring an independent cause of action to recover for increased risk of harm stemming from the fact that defendant’s failure to diagnose, which constitutes a deviation from the standard of care, caused, to a reasonable medical probability, plaintiff to become more likely to suffer a recurrence of cancer?
II. Recovery for Increased Risk of Harm Viewed as a Probability of Future Injury
a. May a plaintiff who successfully asserts a claim pursuant to 18 Del.C. § 6853 recover, as an element of damages, for increased risk of future cancer where the evidence shows that the plaintiff probably will not suffer the future cancer?
b. May a plaintiff bring an independent cause of action to recover for increased risk of future cancer where the evidence shows that the plaintiff probably will not suffer the future cancer?
We hold that increased risk of harm accompanied by physical injury is a compensa-ble element of damages under Delaware law. Accordingly, we answer questions I.a. and Il.a. in the AFFIRMATIVE. We respectfully decline, however, to answer questions I.b. and Il.b. since an answer to these questions would not affect the outcome of the litigation.
Questions I.a. and Il.a. appear to overlap considerably. Question Il.a. is subsumed within I.a. since the undisputed facts indicate that plaintiff has only a 15 percent risk of suffering a recurrence. Therefore, any decision with respect to I.a. necessarily must consider the fact that plaintiff “probably will not suffer the future cancer.” Questions I.b. and Il.b. also follow the same form. In the interests of clarity, we will consider questions I.a. and Il.a., and I.b. and Il.b., together.
I. FACTS
The following undisputed facts are set forth in the Certificate of Question of Law:
1. Agents of the defendant, United States of America, rendered medical care to the plaintiff, Danny L. Anderson, between February and May of 1989 for complaints of pain in the groin and scrotal area.
2. He was examined on six occasions during that period by a total of five physicians with the Department of Veterans Affairs. No testicular mass was found on examination. After ruling out several other diagnoses, the last entry in plaintiffs medical records was “left epididymis ten *75 der may be due to secondary vasectomy.” He was told to return for follow up “if necessary.”
3. Plaintiff was not seen again for any relevant complaints until he went to a private physician in August of 1990, when he was diagnosed as having right testicular seminoma (cancer).
4. At the time of this diagnosis, the cancer had metastasized from the testicle to form a retroperitoneal tumor that blocked the function of plaintiffs right kidney.
5. The right testicle was surgically removed a few days after this diagnosis.
6. The metastatic disease required two additional surgical procedures and a course of chemotherapy, both of which would have been unnecessary in the absence of the metastasis.
7. The metastatic tumor disappeared following chemotherapy and the plaintiff has been disease-free since.
8. If plaintiff can show that agents of the defendant were negligent in his medical care, pursuant to 18 Del.C. § 6853, the defendant is liable for the damages proximately caused by that negligence.
9. A negligent delay in diagnosis could cause recurrence of plaintiffs cancer at another point in the body.
10. If plaintiffs testicular seminoma had been treated when it was Stage I, he would have had close to a 100 percent chance of avoiding recurrence of the cancer.
11. At the time plaintiffs testicular seminoma was treated, at Stage II-C, he had an 85 percent chance of avoiding recurrence of the cancer.
Plaintiff filed suit in the United States District Court for the District of Delaware under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., alleging that agents of the defendant breached the standard of care in failing timely to diagnose his testicular cancer. Count I of the complaint seeks damages for plaintiffs personal injuries resulting from the progression of the disease, including an increase in the risk that the cancer will recur. Count II “states an independent cause of action and alleges that defendant’s actions caused a separate and distinct injury to plaintiff, specifically the increase in his risk of suffering a recurrence of cancer.” Certificate of Question of Law at 1.
I. DAMAGES FOR INCREASED RISK
This Court has not considered whether an increased risk of future harm is compensable when that harm is not probable. This Court recently considered, however, the related “loss of chance” doctrine in a wrongful death action.
United States v. Cumberbatch,
Del.Supr.,
As its name implies, the increased risk doctrine provides that a person may recover damages if the person’s risk of suffering a negative medical condition is increased because of medical malpractice. The increased risk doctrine is considerably broader than the loss of chance doctrine since the former appears to apply even if the plaintiff has a greater than 50 percent chance of survival prior to the malpractice. Moreover, the increased risk doctrine might apply to situations not involving death as the potential outcome.
Id.
at 1100 n. 3. Most courts which have adopted the increased risk doctrine choose to characterize the injury as the increased risk of harm.
Cudone v. Gehret,
D.Del.,
Since loss of chance and increased risk of harm both rely on similar theoretical underpinnings, it is necessary to consider them together. For instance, it would not be coherent to adopt increased risk without also
*76
adopting loss of chance. Allowing a cause of action before the unfavorable result occurs would necessarily imply one after its occurrence. Loss of chance could be adopted, however, without also adopting increased risk. This would merely require plaintiffs to wait until the condition occurred and then sue for loss of chance.
See, e.g., Karol v. Berkow,
Ct.App.Div.,
The increased risk doctrine has been employed in cases involving late diagnoses which allowed cancer to spread.
Cudone, Swain, Petriello, supra.
The doctrine has also been employed in cases involving skull fractures and resulting future susceptibility to meningitis.
Feist v. Sears, Roebuck & Co.,
We agree that medical testimony to the effect that as the result of a serious physical injury, there will be a ‘predisposition’ to the contracting of some disease, i.e., a possibility, is not sufficient evidence to support an award of damages for permanent injury and cannot be properly considered by a jury for that purpose.
We hold, however, that such testimony is sufficient as the basis for a finding by the jury of some disability. We believe, as a matter of common sense, that a jury can properly make a larger award of damages in a case involving a skull fracture of such a nature as to result in a susceptibility to meningitis than in a case involving a skull fracture of such a nature as not to result in any such danger, risk, or susceptibility.
Feist,
Although this Court rejected the loss of chance doctrine in a wrongful death action in
Cumberbatch,
it did not reject the concept of loss of chance as a compensable injury in itself. This Court stated: “If an injury is suffered in the loss of chance situation, it is the reduced possibility of survival which is the basis of the claim, not the death itself.”
Cumberbatch,
The alleged harm is to the person whose chance of survival might be reduced. It might be logical, therefore, for that person (or the legal representatives of the person) to be able to sue and recover compensation irrespective of whether death has occurred. This principle, which reflects-fthe proportional approach to the loss of chance doctrine, might not require a change in Delaware’s traditional causation principles.
Id.
at 1103;
see also Cudone,
The argument for treating increased risks as a distinct injury gained force with the publication of an influential article by Professor Joseph King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1358 (1981). He stated: “What caused a loss, however, should be a separate question from what the nature and extent of the loss are.” Id. at 1363 (emphasis in original). Therefore, the loss of a chance of avoiding an adverse consequence, increased risk, should be viewed as an injury and be compensable. Id. at 1354. The all- or-nothing approach also fails adequately to deter negligent conduct if the professional serves a group with either very good chances or very bad chances of survival. 2
The Connecticut Supreme Court has adopted the increased risk doctrine in a setting very similar to the case
sub judice. Petriello,
By denying any compensation unless a plaintiff proves that a future consequence is more likely to occur than not, courts have created a system in which a significant number of persons receive compensation for future consequences that never occur and, conversely, a significant number of persons receive no compensation at all for consequences that later ensue from risks not rising to the level of probability. This system is inconsistent with the goal of compensating tort victims fairly for all the consequences of the injuries they have sustained, while avoiding, so far as possible, windfall awards for consequences that never happen.
Id. at 482-483. The Court determined that the plaintiff “should not be burdened with proving that the occurrence of a future event is more likely than not, when it is a present risk, rather than a future event for which she claims damages.” Id. The Court held that “in a tort action, a plaintiff who has established a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm is entitled to compensation to the extent that the future harm is likely to occur.” Id. at 484 (footnote omitted).
This approach addresses concerns about speculative claims for future harm. The requirement of a preceding physical injuiy prohibits plaintiffs from claiming that exposure to toxic substances, for instance, has created an increased risk of harm not yet manifested in a physical disease.
Courts which have expressed reservations about proportional loss of chance or increased risk have generally focused on the importance of traditional causation principles.
See Shively v. Klein,
Del.Supr.,
Then Chief Justice Riley of the Michigan Supreme Court dissented thoughtfully from that Court’s adoption of loss of chance in
Falcon v. Memorial Hosp.,
Mich.Supr.,
“If liability is to be imposed in proportion to any chance at survival, then the medical profession will be subjected to a burden which is not imposed on any other group of defendants. I submit that nothing is to be gained by extracting payment from a defendant who cannot be shown to have caused the adverse result. Such a rule will not serve the deterrence function of tort law. It more likely will encourage the practice of costly defensive medicine in an attempt to avoid practically certain liability in the event of an unfavorable outcome.”
Id. at 66 (citation omitted).
Increased risk can be viewed, however, as merely one element of damages when negligence has caused harm. As the certified question is posed, defendant’s negligence caused the cancer to spread. But for the missed diagnosis, accepted treatments would, almost to a certainty, have stopped the cancer. The missed diagnosis caused the cancer to spread, and Plaintiff suffered surgery and chemotherapy. One additional element of his damages is the increased risk of a recurrence. In view of the risk of recurrence, he certainly has suffered an injury which is significantly greater than that which he would have suffered in the absence of negligence.
Judge Posner, in dissent, has argued for a similar approach.
DePass v. United States,
7th Cir.,
Compensating a tort victim for an increase in risk which results from some harm caused by a tortfeasor fits comfortably within traditional damage calculation methods.
Petriello,
11. INDEPENDENT CAUSE OF ACTION FOR INCREASED RISK
Supreme Court Rule 41(a)(ii) authorizes the certifying court to “certify to this Court for decision a question or questions of law
arising
in any case before it ...” (emphasis added). This Court may accept certified questions in its discretion. Supr. Ct.R. 41(b). “The scope of the issues that may be considered in addressing a certified question is limited by the procedural posture of the case.”
Rales v. Blasband,
Del.Supr.,
*79
Generally, this Court should answer certified questions only when the answer-may be determinative of the outcome of the underlying litigation in the certifying court and there is no controlling precedent of this Court. 4 Since the parties have reached agreement with respect to questions I.b. and Il.b., this Court respectfully declines to answer these questions.
IV. CONCLUSION
Plaintiff has suffered present physical injuries caused by the defendant’s negligence. Accordingly, Certified Questions I.a. and II.a. are answered in the AFFIRMATIVE.
Notes
. Other jurisdictions which have adopted a proportional loss of chance doctrine and view the lost chance itself as the injury include:
DeBurkarte v. Louvar,
Iowa Supr.,
. Consider, for instance, a doctor who treats 100 patients negligently. In the absence of negligence, none would have died, but as a result of the negligence, 15 will die. Since any given patient is more likely than not to survive, the all- or-nothing approach would allow the doctor to escape all liability for the future 15 deaths. Since the risk created by the negligence did not rise to more than 50%, the doctor would claim that his negligence did not cause the deaths. Consider also a doctor who treats a different group of 100 patients negligently. In the absence of negligence, 60 would have died, but as a result of the negligence, an additional 15 patients, or a total of 75, will die. Since any given patient probably would have died in the absence of negligence, it cannot be said that the doctor caused any particular death. Although we know, as this example is posited, that 15 additional deaths in each case were the result of negligence, the doctor never pays damages, under the all-or-nothing approach, for any of the deaths.
See also King,
. States rejecting any form of loss of chance and, by implication, increased risk include:
Manning
v.
Twin Falls Clinic & Hosp.,
. This standard, drawn from the Uniform Certification of Questions of Law Act § 1, 12 U.L.A. 52 (1967), and followed in the majority of states, ensures that questions are ripe for judicial decision. For a comprehensive description of state procedures see Jona Goldschmidt, American Judicature Society, Certification of Questions of Law: Federalism in Practice (1995).