Cohan v. Medical Imaging Consultants
297 Neb. 111
| Neb. | 2017Background
- Mary Cohan had a 2009 screening mammogram read as normal; an October 2010 mammogram revealed a 7.1 cm breast tumor with metastasis to 19 of 24 lymph nodes.
- Plaintiffs (Mary and husband Terry) sued radiologist/clinic and treating providers, alleging negligent failure to diagnose in 2009 caused delayed treatment, increased morbidity, shortened life expectancy, emotional distress, and loss of consortium.
- Plaintiffs presented expert testimony that the tumor likely was present and smaller in 2009 (≈3.5 cm, ~3 nodes) and that earlier detection would likely have improved prognosis and lowered 10‑year recurrence risk from ~75% (diagnosed 2010) to ~30% (diagnosed 2009).
- The district court granted defendants’ motion for directed verdict after plaintiffs’ case-in-chief, concluding negligence was shown but damages/causation were limited to a loss‑of‑chance of reduced recurrence risk — a theory Nebraska had not adopted — and dismissed the complaint with prejudice.
- On appeal the Nebraska Supreme Court declined to adopt the loss‑of‑chance doctrine but held that, under Nebraska’s traditional malpractice standard, plaintiffs presented sufficient evidence of causation and damages for Mary to go to a jury; Terry’s loss‑of‑consortium claim failed for lack of proof.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska should adopt the loss‑of‑chance doctrine | Cohans: adopt loss‑of‑chance or Restatement §323 to recover value of reduced chance of a better outcome (e.g., lower recurrence risk) | Appellees: loss‑of‑chance lowers causation standard to mere possibility and invites speculation; Nebraska should retain traditional proximate‑cause rule | Court declined to adopt loss‑of‑chance or Restatement §323; Nebraska does not recognize loss‑of‑chance |
| Whether plaintiffs proved causation and damages under traditional malpractice standard | Cohans: expert testimony showed deviation from standard, tumor growth and increased nodal involvement due to delay, and resulting pain, suffering, and increased recurrence risk | Defendants: plaintiffs failed to prove proximate cause of present damages beyond a lost chance of lower recurrence risk | Court: evidence sufficed for Mary—negligence, tumor growth, increased nodal disease, and emotional/physical harms—so directed verdict on Mary was erroneous; remand for new trial on merits |
| Whether directed verdict for Terry’s loss‑of‑consortium claim was proper | Terry: claims of emotional harm and consortium damages tied to Mary’s delayed diagnosis | Defendants: insufficient specific evidence for Terry’s damages | Court: affirmed directed verdict for defendants as to Terry—insufficient evidence for his claim |
| Admissibility of expert testimony re: prognosis and recurrence risk (Dr. Naughton) | Plaintiffs: testimony on how earlier detection improves prognosis and quantifies recurrence risk is relevant to causation and damages | Defendants: testimony improperly addresses loss‑of‑chance and life expectancy not limited to plaintiff’s condition at trial | Court: did not abuse discretion admitting testimony for limited purpose of showing earlier discovery leads to better prognosis; trial court to reconsider evidentiary rulings on remand in light of opinion |
Key Cases Cited
- Scheele v. Rains, 292 Neb. 974 (standard for directed verdict review in Nebraska)
- Rankin v. Stetson, 275 Neb. 775 (Nebraska previously stated it has not recognized loss‑of‑chance)
- Matsuyama v. Birnbaum, 452 Mass. 1 (Mass. SJC adopting loss‑of‑chance concept in medical malpractice)
- Kramer v. Lewisville Mem. Hosp., 858 S.W.2d 397 (Tex.) (critique of loss‑of‑chance as reducing causation to possibility)
- Steineke v. Share Health Plan of Neb., 246 Neb. 374 (discussion in dissent about loss‑of‑chance recognition)
- David v. DeLeon, 250 Neb. 109 (principle that plaintiff must first prove proximate cause before jury may apportion damages)