Petriello v. Kalman
In Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990), the Court permitted a plaintiff to recover against her physician for a future risk that his negligent treatment of her would cause her injury. Specifically, the plaintiff demonstrated that the defendant physician performed a surgical procedure on her in a negligent manner, caused her to suffer injury and caused her to suffer a risk, from between 8 to 16 percent, that additional injuries would develop in the future as a result of the injuries he caused. Id., 381.
The court permitted recovery on that future risk of harm even though the plaintiff did not demonstrate that it was more likely than not that such harm would occur. 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 injury is likely to occur." Id., 397-98.
"The probability percentage for the occurrence of a particular harm, the risk of which has been created by the tortfeasor, can be applied to the damages that would be justified if that harm should be realized." Id., 397.
The court reasoned that this rule's application warranted recovery in Petriello because the plaintiff already had proven that the increased risk of the injury's occurrence, of between 8 to 16 percent, was more likely than not caused by the defendant's negligence. The court stated that, this being the case, "there was no legitimate reason why the plaintiff should not receive present compensation based upon the likelihood of the risk becoming a reality." Id., 396.
The court further stated 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. . . . It was fairer to instruct the jury to compensate the plaintiff for the increased risk of a bowel obstruction based upon the likelihood of its occurrence rather than to ignore that risk entirely. The medical evidence in this case concerning the probability of such a future consequence provided a sufficient basis for estimating that likelihood and compensating the plaintiff for it." Id.