Cohan v. Medical Imaging Consultants, 297 Neb. 111

Background

In 2008–2010 Mary Cohan had breast complaints and mammograms; a 2009 screening read as normal but a 2010 exam revealed a 7.1 cm cancer with metastasis to 19/24 lymph nodes.
Plaintiffs (Mary and husband Terry) sued imaging/radiology providers and the OB/GYN practice/PA, alleging negligent failure to detect cancer in 2009 caused delayed treatment, greater morbidity, increased recurrence risk, shortened life expectancy, pain and suffering, and loss of consortium.
Plaintiffs presented expert testimony that the 2009 tumor was likely ~3.5 cm with ~3 positive nodes, that earlier diagnosis would more likely than not have found the cancer in 2009, and that 10‑year distant recurrence risk would have been ~30% in 2009 versus ~75% in 2010.
At the close of plaintiffs’ case, defendants moved for directed verdicts; the district court granted directed verdicts dismissing both claims, ruling Nebraska does not recognize the loss‑of‑chance doctrine and that plaintiffs offered only loss‑of‑chance evidence for causation/damages.
On appeal, the Nebraska Supreme Court declined to adopt the loss‑of‑chance doctrine but held plaintiffs presented sufficient evidence under traditional proximate‑cause rules to submit Mary’s damages claim (emotional distress, pain/suffering, worsened prognosis) to a jury; Terry’s consortium claim failed for lack of evidence.
The Court affirmed reversal as to Terry, reversed the directed verdict as to Mary, and remanded for a new trial; it also upheld the trial court’s limited admission of Dr. Naughton’s testimony for the purpose of showing that earlier detection improves prognosis.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nebraska should adopt the loss‑of‑chance doctrine	Cohans: Nebraska should recognize loss‑of‑chance so diminished probability of a better outcome is compensable	Appellees: Loss‑of‑chance would lower causation standard to mere possibility and expand liability	Court: Declines to adopt loss‑of‑chance or Restatement §323; Nebraska requires traditional proximate‑cause proof
Whether plaintiffs proved causation and damages for Mary sufficient to avoid directed verdict	Cohans: Expert testimony showed negligent failure to detect in 2009 caused tumor growth, more nodal spread, worse prognosis and emotional/physical injuries	Defendants: Evidence only established loss‑of‑chance (not recognized) and speculative future harm	Court: Giving plaintiff every inference, evidence was sufficient on causation/damages for Mary to go to jury; directed verdict for Mary reversed
Whether Terry presented sufficient loss of consortium damages	Terry: Loss of consortium shares in Mary’s injuries and emotional harms	Defendants: No specific evidence quantifying Terry’s damages or causal link to defendants’ negligence	Court: Directed verdict for Terry affirmed—insufficient evidence of his damages
Admissibility of Dr. Naughton’s testimony about recurrence risk and prognosis	Plaintiffs: Testimony relevant to show earlier detection leads to better prognosis and corroborates causation/damages	Defendants: Testimony impermissibly put forward loss‑of‑chance theory and focused on risks not current condition	Court: Trial court did not abuse discretion; testimony admissible for the limited purpose of showing earlier discovery likely yields improved prognosis, though evidence solely supporting loss‑of‑chance would be improper on retrial

Key Cases Cited

Scheele v. Rains, 292 Neb. 974 (discussing directed‑verdict review standard)
Rankin v. Stetson, 275 Neb. 775 (stating Nebraska has not recognized loss‑of‑chance)
Matsuyama v. Birnbaum, 452 Mass. 1 (Massachusetts decision recognizing loss‑of‑chance concept)
Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993) (criticizing loss‑of‑chance as reducing causation to mere possibility)
David v. DeLeon, 250 Neb. 109 (explaining plaintiff must first prove proximate cause before jurors may apportion damages)