Medved v. Glenn

2005 UT 77
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Jamie Medved, No. 20040492
Plaintiff and Petitioner,
v.
C. Joseph Glenn, M.D., and
Estate of Blayne L. Hirsche, F I L E D
M.D.,
Defendants and Respondents. November 15, 2005
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Fourth District, Provo Dep’t
The Honorable Lynn W. Davis
No. 010400960
Attorneys: Michael F. Richman, Murray, for plaintiff
Curtis J. Drake, Anne D. Armstrong, Salt Lake City,
for defendant Glenn
Dennis C. Ferguson, Salt Lake City, for defendant
Estate of Blayne L. Hirsche
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On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 In this case, we are asked to determine whether
plaintiff Jamie Medved may assert a cause of action for present
and future damages resulting from the failure to diagnose her
breast cancer, when the future damages are based on the mere
possibility that her cancer will recur. The court of appeals
held that Ms. Medved cannot file suit unless and until she has
experienced a recurrence of her cancer. We reverse.
BACKGROUND
¶2 In August 1997, Ms. Medved visited her gynecologist,
Dr. C. Joseph Glenn, after discovering a lump in her right

1 During the course of this litigation, Dr. Hirsche was
killed in an airplane accident. Consequently, Ms. Medved moved,
pursuant to rule 25(a) of the Utah Rules of Civil Procedure, to
substitute the estate of Dr. Hirsche as a defendant. The
district court granted this motion.
No. 20040492 2
breast. Although Dr. Glenn noted the lump, observed fibrocystic
changes in both breasts, and recommended that Ms. Medved conduct
future self-examinations to track the size and shape of the lump,
he failed to order a mammogram. Several months later, in
February 1998, Ms. Medved returned to Dr. Glenn, again
complaining of the lump in her breast. Dr. Glenn observed that
the right breast had undergone additional fibrocystic changes,
but again failed to order a mammogram.
¶3 On July 13, 1998, Ms. Medved consulted with
Dr. Blayne L. Hirsche, a plastic surgeon, concerning both the
removal of the lump in her breast and a breast augmentation.
During the initial examination, Dr. Hirsche discovered several
cysts in Ms. Medved’s right breast and, as a result, recommended
that she have a mammogram. While the results of the mammogram
indicated that there was no evidence of malignancy, the report
noted that the mammogram may be less sensitive due to the
heterogeneously dense nature of Ms. Medved’s breast.
¶4 On August 12, 1998, Dr. Hirsche performed a breast
augmentation on Ms. Medved, but did not remove the cysts. He did
attempt to aspirate three cystic areas, but he obtained very
little fluid and did not send it to pathology for evaluation.
Four months later, after monitoring the cysts, Dr. Hirsche
performed a biopsy on the three lesions. The biopsy indicated
that Ms. Medved was suffering from infiltrating ductal carcinoma
that had spread to eight lymph nodes. As a result of her
diagnosis, Ms. Medved underwent a mastectomy, radiation, and
chemotherapy.
¶5 On March 5, 2001, Ms. Medved filed a complaint against
Drs. Glenn and Hirsche for medical malpractice, alleging that, as
a result of her delayed diagnosis, she suffered damages in the
form of having to undergo more extreme and invasive treatment,
including a mastectomy, chemotherapy, and radiation, than she
would have had to undergo had defendants timely diagnosed her
cancer.1 Additionally, Ms. Medved sought damages based on the
increased risk of a recurrence of her cancer and the possibility
of future medical expenses.
¶6 Defendants filed a motion to dismiss Ms. Medved’s
complaint pursuant to rule 12(b)(6) of the Utah Rules of Civil

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Procedure, arguing that, under this court’s opinion in Seale v.
Gowans, 923 P.2d 1361 (Utah 1996), Ms. Medved could not plead a
legally cognizable injury unless and until she experienced a
recurrence of her cancer. The district court granted defendants’
motion, holding that it could find “no legally recognized claim”
when Ms. Medved “has claimed an increased risk of cancer
recurrence, but has not claimed an injury clearly related to that
risk.” Ms. Medved appealed the district court’s order of
dismissal.
¶7 The court of appeals affirmed the district court,
declaring that Ms. Medved’s “claim for the increased risk of
recurrence of cancer is ‘not actionable.’” Medved v. Glenn, 2004
UT App 161, ¶ 10, 92 P.3d 176 (quoting Seale, 923 P.2d at 1364).
In so holding, the court of appeals rejected Ms. Medved’s
argument that, under Seale, she was permitted to bring a cause of
action for future damages so long as she simultaneously pleaded a
claim for present injury. It declared, “Seale does not stand for
this proposition. Rather, Seale preserves [p]laintiff’s claim
for actual damages until speculative damages become actual
damages.” Id. Although the court of appeals affirmed the
dismissal of Ms. Medved’s claim, it stated as follows:
We do not reach the issue of whether [Medved]
may amend her pleadings to pursue her claim
for actual damages, perhaps waiving her claim
to speculative damages to avoid the
proscription of Seale. Nor do we address the
consequences of such an action, including the
application of the statute of limitation to
her claim for actual damages, unconnected to
a claim for speculative damages.
Id. ¶ 11. Ms. Medved petitioned for certiorari, which we
granted. We have jurisdiction pursuant to Utah Code section
78-2-2(3)(a) (2002).
¶8 “‘On certiorari, we review the court of appeals’
decision for correctness,’ focusing on ‘whether that court
correctly reviewed the [district] court’s decision under the
appropriate standard of review.’” Hansen v. Eyre, 2005 UT 29,
¶ 8, 116 P.3d 290 (quoting State v. Dean, 2004 UT 63, ¶ 7, 95
P.3d 276). “Because the propriety of a motion to dismiss is a
question of law, we review the court of appeals’ determination
that the district court [did not] err[] in dismissing Plaintiff’s
. . . claim[] for correctness,” Russell Packard Dev., Inc. v.
Carson, 2005 UT 14, ¶ 34, 108 P.3d 741, “accept[ing] the factual
allegations in the complaint as true and consider[ing] them, and

No. 20040492 4
all reasonable inferences to be drawn from them, in the light
most favorable to the non-moving party,” Riddle v. Perry, 2002 UT
10, ¶ 2, 40 P.3d 1128.
ANALYSIS
I. DID THE COURT OF APPEALS CORRECTLY INTERPRET SEALE?
¶9 Ms. Medved argues that the court of appeals erred in
holding that all claims for possible future injury, whether or
not pleaded in conjunction with claims for actual present injury,
are barred under our holding in Seale v. Gowans, 923 P.2d 1361
(Utah 1996). According to Ms. Medved, because she pleaded a
legally cognizable present injury, she is entitled, under Seale,
to pursue her claim for all potential future injuries as well.
We agree.
¶10 In Seale, we faced the question of what constitutes a
legally cognizable injury for purposes of the statute of
limitations. In that case, the defendants failed to detect a
mass visible in Ms. Seale’s mammogram, which was taken in August
of 1987. Id. at 1362. Nine months later, when the cancer was
ultimately diagnosed, Ms. Seale learned of the earlier
misdiagnosis, underwent a radical mastectomy, and was informed
that the cancer had spread to eight lymph nodes. Id. Three
years after her diagnosis, Ms. Seale experienced a recurrence of
her cancer. Id. She then filed suit, alleging that the
recurrence was the result of the defendants’ negligent delay in
accurately diagnosing her breast cancer. Id. As an affirmative
defense, the defendants claimed that the statute of limitations
had run on Ms. Seale’s cause of action because the injury
attributable to their alleged negligence occurred when Ms. Seale
first learned that, as a result of the delayed diagnosis, the
cancer had spread to her lymph nodes, thereby increasing her risk
of a recurrence. Id. at 1364.
¶11 We rejected the defendants’ argument. Because the
defendants had failed to demonstrate that Ms. Seale had suffered
a legally cognizable injury at any time prior to her recurrence
of cancer, we held that the statute of limitations did not begin
to run until the cancer recurred. Id. at 1364. We concluded
that the increased risk of recurrence, as evidenced by the spread
of cancer to Ms. Seale’s lymph nodes, did not constitute a
legally cognizable injury because, “without proof of actual
damages, an alleged claim for enhanced risk is not adequate to
sustain a cause of action for negligence.” Id. at 1365 (emphasis
added). Accordingly, we held that “damages in the form of an

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enhanced risk only are not sufficient to start the running of the
statute of limitations.” Id. (emphasis added).
¶12 In so holding, we distinguished Ms. Seale’s case from
those relied on by the defendants by recognizing that, unlike
Ms. Seale, the plaintiffs in those cases “had suffered actual
damages in conjunction with the increased risk of the cancer’s
recurrence.” Id. (emphasis added); see Swain v. Curry, 595 So.
2d 168, 169 (Fla. Dist. Ct. App. 1992) (noting that, in addition
to pleading damages for a future recurrence of cancer, the
plaintiff also pleaded present damages for “permanent scarring
and disfigurement”); Colbert v. Georgetown Univ., 641 A.2d 469,
474 (D.C. 1994) (recognizing that, in addition to future damages,
the plaintiffs’ complaint sought damages for present injuries
sustained by the plaintiff, such as “[t]hird degree burns
resulting from the otherwise unnecessary joint application of
radiation and chemotherapy”). Because Ms. Seale had not pleaded
any injury other than the recurrence of cancer, and because the
defendants did not allege that Ms. Seale had suffered any injury
beyond the spread of the cancer to her lymph nodes, we concluded
that those cases were inapposite. Seale, 923 P.2d at 1365.
¶13 In this case, expressly relying on our holding in
Seale, the court of appeals declared that “speculative claims are
not allowed under Utah law.” Medved, 2004 UT App 161, ¶ 9. By
so declaring, the court of appeals emphasized, to the exclusion
of our actual holding in Seale, our discussion of the policy
concerns that militate against allowing purely speculative claims
for future damages. Seale, 923 P.2d at 1365-66. That
discussion, however, concerned purely speculative claims based
solely on “inchoate wrongs.” Id. at 1364. In discussing
speculative claims for future damages pleaded in conjunction with
a legally cognizable injury, we stated that “once some injury
becomes actionable, a plaintiff must plead all damages, both
present and future, and cannot thereafter bring another action
once future harm occurs.” Id. Consequently, if a plaintiff is
able to plead a legally cognizable injury, she “‘is entitled to
[seek] damages not only for harm already suffered, but also for
that which will probably result in the future.’” Id. (quoting
Restatement (Second) of Torts § 912 cmt. e (1979)). This is true
regardless of whether the plaintiff eventually succeeds on her
claim for the present legal injury.
¶14 In summary, our holding in Seale that “damages in the
form of an enhanced risk only are not sufficient to start the
running of the statute of limitations,” 923 P.2d at 1365, is
applicable only to those cases where a plaintiff seeks to recover
damages for a possible future injury without having suffered any

No. 20040492 6
presently cognizable injury. We hereby clarify that our holding
was never intended to, and does not, displace the generally
accepted “one action rule.” Under that rule, once a plaintiff
suffers an actionable injury, she is entitled to recover damages
not only for harm already suffered, but also for that which will
probably result in the future. Restatement (Second) of Torts
§ 912 cmt. e (1979). Indeed, a plaintiff’s failure to seek
future damages in such a situation may very well preclude any
subsequent attempts at recovery.
¶15 Although we are baffled by defendants’ interpretation
of Seale, we recognize that it was adopted by our colleagues on
both the district court and the court of appeals. Moreover, in
view of the arguments presented in this case, it appears as if it
has been widely accepted in our legal community. It is therefore
entirely possible, if not likely, that prospective plaintiffs
have delayed filing suit due to the widely-accepted, but
erroneous, interpretation of our holding in Seale.
¶16 To avoid the substantial injustice that may otherwise
flow from our holding today, we note that it should be applied
only prospectively, in effect tolling the statute of limitations
for all individuals who may have relied on the erroneous
interpretation. See Malan v. Lewis, 693 P.2d 661, 676 (Utah
1984) (petition for reh’g) (“The general rule from time
immemorial is that the ruling of a court is deemed to state the
true nature of the law both retrospectively and prospectively.
. . . Whether the general rule should be departed from depends
on whether a substantial injustice would otherwise occur.”).
Consequently, for those individuals who may have delayed filing
their causes of action due to the erroneous interpretation of
Seale, the statute of limitations on their claims will begin to
run as of the date of this opinion.
II. HAS MS. MEDVED PLEADED A LEGALLY COGNIZABLE INJURY?
¶17 Pursuant to our discussion above, Ms. Medved is
entitled to seek damages relating to a possible recurrence of
cancer if she has simultaneously pleaded a legally cognizable
injury. A legally cognizable injury occurs when “‘the injured
person knew or should have known that [s]he had sustained an
injury and that the injury was caused by negligent action.’”
Seale v. Gowans, 923 P.2d 1361, 1363 (Utah 1996) (quoting Foil v.
Ballinger, 601 P.2d 144, 148 (Utah 1979)); see also Collins v.
Wilson, 1999 UT 56, ¶ 19, 984 P.2d 960 (“[D]iscovery of legal
injury, therefore, encompasses both awareness of physical injury
and knowledge that the injury is or may be attributable to
negligence.” (internal quotations omitted)).

7 No. 20040492
¶18 We conclude that the court of appeals erred in holding
that Ms. Medved did not plead a legally cognizable injury. The
complaint alleges that Ms. Medved suffered a present legal injury
by having to undergo more extensive cancer treatment than she
would have undergone had her cancer been timely diagnosed. This
treatment included a mastectomy, chemotherapy, and radiation.
The damages associated with having to undergo such treatments
clearly constitute a legally cognizable injury. Because
Ms. Medved has alleged such an injury, she is entitled to plead a
cause of action for future damages as well.
CONCLUSION
¶19 We hold that Ms. Medved is entitled to seek damages
associated with the possible future recurrence of her cancer
because she simultaneously pleaded a legally cognizable injury.
Because many may have relied on an erroneous interpretation of
our prior opinion in Seale, our holding in this matter is to be
applied only prospectively.
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¶20 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.