Cohan v. Medical Imaging Consultants
297 Neb. 111
| Neb. | 2017Background
- In 2009 Mary Cohan underwent a screening mammogram read as normal; in 2010 an abnormality was found and a 7.1 cm breast cancer with metastasis to 19 of 24 lymph nodes was diagnosed.
- Plaintiffs Mary and Terry Cohan sued radiologist Dr. Faulk/Medical Imaging Consultants and others for negligence, alleging a delayed 2009 diagnosis caused worse physical injury, greater recurrence risk, emotional distress, shortened life expectancy, and loss of consortium.
- Plaintiffs presented experts who testified (1) the 2009 mammogram showed an abnormality that should have been acted upon, (2) the tumor was smaller in 2009 and lymph node involvement would likely have been less, and (3) earlier detection would have reduced Mary’s 10‑year recurrence risk (approx. 30% if detected in 2009 vs. 75% in 2010).
- At the close of plaintiffs’ case, defendants moved for directed verdicts; the trial court found negligence was for the jury but granted directed verdicts because plaintiffs’ harms were based on a “loss of chance” theory, which it concluded Nebraska did not recognize.
- The Nebraska Supreme Court (1) declined to adopt the loss‑of‑chance doctrine or Restatement §323 approach, (2) held plaintiffs had presented sufficient evidence of causation and damages on Mary’s claim to survive a directed verdict, and (3) affirmed the directed verdict as to Terry’s loss‑of‑consortium claim and remanded for a new trial on Mary’s claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska should adopt the loss‑of‑chance doctrine | Cohan: loss of a chance to avoid worse outcome (increased recurrence risk) is compensable; expert evidence on increased recurrence suffices | Defendants: Nebraska should not relax causation; loss‑of‑chance permits speculation and reduces causation to mere possibility | Court declined to adopt loss‑of‑chance or Restatement §323; Nebraska retains traditional proximate causation standard |
| Whether plaintiffs proved proximate cause and damages to submit Mary’s claim to a jury | Cohan: expert testimony showed negligence caused tumor growth and increased lymph node involvement, producing compensable physical and emotional harms | Defendants: plaintiffs proved only an increased statistical risk (loss of chance), insufficient to show causation/damages | Court held plaintiffs produced sufficient evidence of negligence, causation, and emotional/physical damages for Mary to survive directed verdict; reversed and remanded for new trial |
| Whether Terry’s loss‑of‑consortium claim had sufficient proof of damages | Terry: consortium damages flow from Mary’s harms | Defendants: Terry presented no probative evidence specific to his claim | Court affirmed directed verdict for defendants as to Terry; plaintiff failed to present sufficient evidence |
| Admissibility of testimony about recurrence risk and prognosis (Dr. Naughton) | Plaintiffs: expert may testify that earlier detection improves prognosis and affects damages | Defendants: testimony is only relevant to disfavored loss‑of‑chance theory or to Mary’s condition at trial | Court held trial court did not abuse discretion admitting the testimony for the limited purpose of showing earlier detection would likely improve prognosis; cautioned trial court to consider rulings on remand in light of this opinion |
Key Cases Cited
- Scheele v. Rains, 292 Neb. 974 (statement of directed verdict standard and appellate review)
- Rankin v. Stetson, 275 Neb. 775 (Nebraska noted it has not recognized loss‑of‑chance)
- Matsuyama v. Birnbaum, 452 Mass. 1 (Massachusetts adopting loss‑of‑chance—loss of chance of survival is compensable)
- Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex.) (criticizing loss‑of‑chance as reducing causation to mere possibility)
- David v. DeLeon, 250 Neb. 109 (Nebraska instruction on recovering full compensation for damages proximately resulting from defendant’s act)