"Two-Disease Rule" Results in Dismissal of Med/Mal Action

Obtained dismissal of a medical malpractice action in its entirety based on the "Two-Disease Rule." The case involved clear liability for lost breast biopsy samples by a hospital nurse. The complaint did not state that the plaintiff had breast cancer, and this remained the case during oral argument on preliminary objections. The plaintiff sought damages for the anxiety she suffered when she learned that her pathology samples were missing and for her "fear of cancer diagnosis." Her husband sought recovery for negligent infliction of emotional distress for being present with his wife when she learned the samples were lost and for observing her anxiety in not knowing whether she had breast cancer. The plaintiffs demanded $2.5 million to settle the case at the outset. The judge properly held that the "Two-Disease Rule," originally stemming from asbestos litigation, was applicable in medical malpractice cases and that the depression and anxiety she and her husband suffered prior to a cancer diagnosis is not recoverable.