Cohan v. Medical Imaging Consultants
297 Neb. 111
| Neb. | 2017Background
- In 2009 Mary Cohan had a screening mammogram read as normal; in October 2010 breast cancer was diagnosed (7.1 cm tumor, 19/24 nodes positive). Plaintiffs allege the 2009 exam and related care negligently missed the cancer, causing a yearlong diagnostic delay.
- Plaintiffs (Mary and husband Terry) sued radiologist Dr. Faulk/Medical Imaging Consultants and providers at Bellevue Obstetrics & Gynecology (including PA Michelle Berlin), alleging deviation from the standard of care that proximately caused worsened disease, increased risk of recurrence, physical and emotional injury, and loss of consortium.
- Experts for plaintiffs testified the 2009 tumor was likely ~3.5 cm with ~3 nodes involved, that earlier diagnosis would likely have produced a better prognosis, and that risk of distant recurrence would have been ~30% in 2009 versus ~75% by 2010; Mary had not experienced recurrence at trial.
- At the close of plaintiffs’ case the district court granted defendants’ directed verdict motion, concluding plaintiffs proved negligence but failed to prove proximate cause/damages except for a loss-of-chance theory, which Nebraska does not recognize; the complaint was dismissed with prejudice as to both plaintiffs.
- On appeal Nebraska Supreme Court declined to adopt the loss-of-chance doctrine but held plaintiffs presented sufficient evidence of causation and emotional/physical damages for Mary to survive a directed verdict; Mary’s claim was reversed and remanded for new trial; Terry’s loss-of-consortium claim was affirmed (directed verdict proper).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska should adopt the loss-of-chance doctrine in medical malpractice | Cohans: courts should compensate lost chance of improved outcome/increased survival when negligence diminishes that chance | Defendants: adopting the doctrine relaxes causation to mere possibility, invites speculation, and conflicts with existing standards/legislation | Court declined to adopt loss-of-chance or Restatement §323; Nebraska does not recognize loss-of-chance |
| Whether plaintiffs presented sufficient causation and damages evidence to avoid directed verdict on Mary’s claim | Cohans: expert testimony showed deviation from standard of care that proximately caused tumor progression, more extensive nodal disease, worse prognosis, and emotional/physical harm | Defendants: plaintiffs only proved an increased risk (a lost chance) and no proof of actual causation or compensable damages under Nebraska law | Court: evidence (growth from ~3.5 cm to 7.1 cm, increased nodes, testimonial evidence of anxiety/pain) was sufficient to submit Mary’s claims to a jury; directed verdict reversed for Mary |
| Whether directed verdict for Terry (loss of consortium) was proper | Terry: harms to marital relationship shown by testimony of trauma and ongoing effects | Defendants: insufficient evidence specific to Terry’s damages | Court: Terry failed to present sufficient evidence; directed verdict for defendants as to Terry affirmed |
| Admissibility of Dr. Naughton’s testimony about prognosis and recurrence risk | Cohans: testimony relevant to show earlier diagnosis would have improved prognosis and supports damages | Defendants: testimony improperly focused on loss-of-chance and future risk not limited to condition at trial; should be excluded | Court: trial court did not abuse discretion; testimony was admissible for limited purpose (establishing earlier detection leads to better prognosis), but on retrial evidentiary rulings must conform to this opinion |
Key Cases Cited
- Scheele v. Rains, 292 Neb. 974 (discusses standard of review for directed verdicts and giving nonmoving party benefit of inferences)
- Rankin v. Stetson, 275 Neb. 775 (holds Nebraska has not recognized the loss-of-chance doctrine)
- Matsuyama v. Birnbaum, 452 Mass. 1 (Massachusetts case recognizing loss-of-chance as compensable injury)
- Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993) (criticizes loss-of-chance as reducing causation to possibility)
- David v. DeLeon, 250 Neb. 109 (statement that plaintiff may recover full compensation for damages proximately resulting from defendant’s act; jury must first find proximate cause)