South-Western Legal Studies in Business

Fear of Cancer Not Grounds for Emotional Distress Suit
Description Ohio high court rejected a claim of emotional distress based on fear of cancer because tissue samples taken for cancer tests were accidentally destroyed before the testing could be complete. The actual likelihood of cancer was not enhanced.
Topic Torts
Key Words Negligence; Emotional Distress; Fear of Cancer; Test Destruction
C A S E   S U M M A R Y
Facts Dobran had a mole removed that was found to be a malignant melanoma. Based on that, Dobran then had two lymph nodes removed that could be studied to see if the cancer had spread beyond the mole. Standard tests were done on the nodes at the lab in Ohio, but the samples were then frozen and sent to a more advanced lab in California for further review. The samples thawed before arrival in California, making them useless. Dobran then sued all parties involved in handling the samples for negligence, contending that the destruction of the samples created a fear of cancer that caused an extreme emotional distress due to the uncertainty of the test results. The district court dismissed the suit; the appeals court reversed, allowing the suit to proceed; the defendants appealed.

Reversed. Dobran's fear that the cancer would spread could not be the basis for a claim of negligent infliction of emotional distress against healthcare professionals. His actual physical danger was not increased because the tissue samples were destroyed. That is, loss of the samples did not increase his likelihood of having cancer. The loss of the samples was negligent, but it does not create the basis for such litigation.

Citation Dobran v. Franciscan Medical Center, 806 N.E.2d 537 (Sup. Ct., Ohio, 2004)

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