Cohan v. Medical Imaging Consultants
900 N.W.2d 732
| Neb. | 2017Background
- In Oct 2009 Mary Cohan had a screening mammogram read as normal; in Oct 2010 breast cancer was diagnosed (7.1 cm tumor, 19/24 positive lymph nodes). Plaintiffs allege negligent failure to detect the tumor in 2009 caused a yearlong delay in diagnosis and worsened outcomes.
- Plaintiffs presented expert testimony that the 2009 tumor was likely ~3.5 cm with ~3 positive nodes and that earlier detection would likely have produced a better prognosis and lower recurrence risk.
- Dr. Naughton (oncologist) testified about population recurrence risks: ~30% 10-year risk if diagnosed in 2009 versus ~75% if diagnosed in 2010; he also framed residual risk at trial.
- The district court granted defendants’ motions for directed verdict after plaintiffs’ case-in-chief, ruling negligence could go to the jury but that plaintiffs had only proof of a "loss of chance" (which Nebraska had not recognized) and no adequate proof of proximate causation/damages.
- On appeal plaintiffs asked Nebraska Supreme Court to adopt the loss-of-chance doctrine or otherwise find the evidence sufficient; defendants cross-appealed the admission of Dr. Naughton’s testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska should adopt the loss-of-chance doctrine | Loss-of-chance should be recognized so reduced chance of better outcome is compensable | Loss-of-chance impermissibly relaxes causation to mere possibility and would expand liability | Court declined to adopt loss-of-chance or Restatement §323; Nebraska does not recognize it |
| Whether plaintiffs proved causation and damages for Mary under traditional malpractice standard | Expert proof showed deviation from standard, tumor growth and increased node involvement, and resulting anxiety/pain — jury should decide causation/damages | Evidence only established increased risk (loss of chance), not proved ultimate harm causation | Court held plaintiffs presented sufficient evidence of causation/damages (emotional and physical) to avoid directed verdict as to Mary; reversed and remanded for new trial |
| Whether Terry (spousal loss-of-consortium) presented sufficient evidence | Consortium damages flow from Mary’s harm | Terry presented no separate factual proof of his damages | Directed verdict for defendants as to Terry affirmed |
| Admissibility of Dr. Naughton’s testimony about prognosis/recurrence | Testimony relevant to show earlier detection leads to better prognosis and to corroborate causation/damages | Testimony improperly tied to loss-of-chance theory and irrelevant to plaintiff’s condition at trial | Admission not an abuse of discretion; testimony relevant for limited purpose (but must be reconsidered on retrial in light of this opinion) |
Key Cases Cited
- Scheele v. Rains, 292 Neb. 974 (Neb. 2016) (standard of review for directed verdicts and giving nonmoving party benefit of inferences)
- Rankin v. Stetson, 275 Neb. 775 (Neb. 2008) (Nebraska has not recognized loss-of-chance doctrine)
- Matsuyama v. Birnbaum, 452 Mass. 1 (Mass. 2008) (adopting loss-of-chance approach where negligence diminishes chance of survival)
- Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993) (criticizing loss-of-chance as reducing causation to mere possibility and refusing to adopt it)
- David v. DeLeon, 250 Neb. 109 (Neb. 1996) (plaintiff must first prove proximate cause before jury may apportion damages)