Cohan v. Medical Imaging Consultants
297 Neb. 111
| Neb. | 2017Background
- In 2008–2010 Mary Cohan underwent breast exams: a normal diagnostic exam in 2008, a screening mammogram read as normal in October 2009, and an abnormal mammogram in October 2010 that revealed a 7.1 cm tumor with metastasis to 19 of 24 lymph nodes.
- The Cohans sued Medical Imaging Consultants, Dr. Robert Faulk, Bellevue Obstetrics & Gynecology, Dr. Michael Woods, and PA Michelle Berlin for negligence in failing to detect the tumor in 2009, alleging delayed diagnosis caused worsened prognosis, increased recurrence risk, physical and emotional injuries, and loss of consortium.
- Plaintiffs presented expert testimony that the 2009 tumor was present (approx. 3.5 cm and a few positive nodes), that earlier detection would likely have limited tumor size and nodal spread, and that the risk of distant recurrence would have been materially lower if diagnosed in 2009.
- At the close of plaintiffs’ case, the district court granted defendants’ motion for a directed verdict, concluding negligence was shown but damages/causation were only shown in terms of a lost chance of a lower recurrence rate, which Nebraska did not recognize.
- On appeal the Nebraska Supreme Court declined to adopt the loss-of-chance doctrine but held that plaintiffs had nonetheless produced sufficient evidence of causation and damages (mental anguish, pain and suffering, worsened physical condition) as to Mary to survive a directed verdict; Terry’s loss-of-consortium claim failed for lack of proof.
- The case was affirmed in part, reversed in part, and remanded for a new trial on Mary’s claim; the court instructed the trial court to reconsider evidentiary rulings in light of the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska should adopt the loss-of-chance doctrine for medical malpractice | Cohans: Nebraska should recognize loss-of-chance (or Restatement §323) so that decreased probability of a better outcome is compensable | Appellees: Loss-of-chance improperly relaxes causation to a mere possibility and expands liability; Nebraska has not adopted it | Court declined to adopt loss-of-chance or Restatement §323 |
| Whether plaintiffs presented sufficient evidence of proximate causation and damages to survive a directed verdict on Mary’s claim | Cohans: expert testimony established breach, that delayed diagnosis caused tumor growth/nodal spread, increased recurrence risk, and caused pain/mental anguish | Appellees: Evidence only proved increased risk (a lost chance), which Nebraska does not recognize as recoverable harm | Court held plaintiffs presented sufficient evidence of causation and damages (physical and emotional) to avoid directed verdict as to Mary |
| Whether the directed verdict for Terry (loss of consortium) was proper | Terry: consortium damages follow from Mary’s worsened condition | Appellees: Terry presented no probative evidence of his own damages | Court affirmed directed verdict for defendants on Terry’s claim due to insufficient evidence |
| Admissibility of Dr. Naughton’s testimony on prognosis and recurrence risk | Cohans: testimony relevant to show early detection leads to better prognosis and to quantify risk change | Appellees: Testimony improperly tied to loss-of-chance theory and nonrelevant beyond Mary’s condition at trial | Court held the testimony admissible for limited purpose (demonstrating that earlier detection leads to better prognosis); cautioned trial court to reassess evidentiary rulings on remand |
Key Cases Cited
- Rankin v. Stetson, 275 Neb. 775 (Neb. 2008) (noting Nebraska has not recognized loss-of-chance doctrine)
- Matsuyama v. Birnbaum, 452 Mass. 1 (Mass. 2008) (endorsing loss-of-chance as compensable injury when negligence reduces 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 cautioning against speculative awards)
- Steineke v. Share Health Plan of Neb., 246 Neb. 374 (Neb. 1994) (dissent discussing loss-of-chance; court did not adopt doctrine)
- David v. DeLeon, 250 Neb. 109 (Neb. 1996) (explaining damages attributable to defendant require proof of proximate cause; preexisting conditions do not bar recovery for aggravated damages)