Supreme Court Rejects Loss of Chance Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2009)
In a 5-2 decision, the Kentucky Supreme Court, in rejecting the possibility of a claim based on the loss of a chance, put a halt to the erosion of one of the one most fundamental principles underlying the tort of negligence -- causation. It has since the beginning of the Commonwealth well settled that proof of a possibility is mere speculation and will not support a verdict. The idea of a loss of a chance is the poster child for speculation since, by definition, it is most likely that no harm was done. What made this decision problematic for the Court was its failure to adhere to well settled principles in the past.
The Court first raised concerns about its commitment to traditional causation in Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984) when it announced that one could recover damages for a possible future complication. The Graviss Court held that in addition to the mental anguish that might be associated with the possible future complication, the risk of future harm, where the risk was substantial even though not probable, would constitute a separate element of damages. In Capitol Holding Corp. v. Bailey, 873 S.W.2d 187 (Ky. 1994), the Court "clarified" the Graviss rule by saying that the case did not create a new element of damage, but that possible future damages should be apportioned based on the degree of likelihood that they might occur, and coulod include mental anguish, future medical expenses, and impairment of power to earn money.
Once the Court authorized proof of a possible future complication to authorize an award of damages, no great leap of logic was required to conclude that proof of a possible future complication would support a cause of action for negligence. This next step was rejected, however, on the ground that there had to be loss or damage before future complications could be recovered. Capitol Holding Corp. v. Bailey, 873 S.W.2d 187 (Ky. 1994). Of course, Graviss had decided that future complications were damage, so this reasoning, while necessary, was circuitous. This was further clarified in Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d 849 (Ky. 2002), where the Court held that a cause of action for negligence required not just damage, but physical harm and impairment. Thus, the rule forming the backdrop for the Kemper Court was that an award could be based on a possible future harm, but that possible future harm would not itself support a cause of action for negligence.
The primary basis for the Court's opinion in Kemper appears to be the public policy implications of increasing the number and magnitude of lawsuits seeking compensation for loss that likely will never happen. This is essentially the same public policy underlying the requirement of causation in the first place. However, the Court had to address Graviss, and the majority suggested that Graviss had been misunderstood. The Court suggested that Graviss really only allowed recovery for the mental anguish associated with the future complications, which was probable. The opinion ignored, however, the holding in Capital Holding allowing recovery for an apportioned amount of future medical expenses or impairment of power to earn money. In fact, Capital Holding was not mentioned in the opinion.
While the Kemper opinion resolves the question of a recovery for loss of chance, the Graviss doctrine remains unclear and unsupported by any meaningful theoretical foundation. This opinion may support a future opinion limiting Graviss damages to mental anguish which is probable, thus fully resolving the potential conflict between the cases. The Court did, in fact, destroy the fiction that Graviss dealt in probabilities because it was probable that there was a possibility of the future complication occurring. This very argument was advanced in support of the loss of chance doctrine, and the Court dismissed it as a "concept chasing its own tail". The defense in cases with future complication cases should continue to resist awards based on such proof, while the plaintiff will take such awards for granted at his or her own peril.