Cohan v. Medical Imaging Consultants
297 Neb. 111
Neb.2017Background
- Mary Cohan had a normal mammogram read in Oct. 2009 after reporting lumps; in Oct. 2010 breast cancer was diagnosed (7.1 cm tumor, 19/24 lymph nodes positive).
- Plaintiffs (Mary and husband Terry) sued radiologist Dr. Faulk/Medical Imaging Consultants and providers at Bellevue OBGYN, alleging negligence in failing to detect the 2009 abnormality and that the delay caused worse disease, greater treatment, pain and shortened life expectancy.
- Plaintiffs presented expert testimony that (a) the 2009 mammogram showed an abnormality; (b) the tumor likely would have been smaller with fewer positive nodes if detected in 2009; and (c) delayed diagnosis increased the 10-year risk of distant recurrence (from ~30% in 2009 to ~75% in 2010).
- At the close of plaintiffs’ case, defendants moved for directed verdicts; the district court found negligence was shown but granted directed verdicts because Nebraska does not recognize the loss-of-chance doctrine and plaintiffs’ proof of causation/damages was insufficient.
- The Nebraska Supreme Court affirmed in part and reversed in part: it declined to adopt the loss-of-chance doctrine, held that Mary presented sufficient evidence of causation and damages to go to the jury, reversed as to Mary’s claim and remanded for a new trial, but affirmed as to Terry’s loss-of-consortium claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska should adopt the loss-of-chance doctrine for medical malpractice | Cohans: loss of chance (reduced probability of a better outcome) is a compensable injury; experts showed increased risk from defendants’ negligence | Defendants: loss-of-chance lowers causation to mere possibility, invites speculation, and conflicts with Nebraska law | Court: Declines to adopt loss-of-chance or Restatement §323; Nebraska requires traditional proximate-cause proof |
| Whether plaintiffs proved proximate cause and damages under existing Nebraska malpractice law | Cohans: experts established deviation from standard of care and that delay caused increased tumor size, node involvement, worse prognosis and emotional/physical damages | Defendants: proof only shows increased risk (loss of chance), not causation of present harm | Court: Evidence was sufficient on Mary’s claim to submit causation and damages to jury; directed verdict reversed for Mary |
| Whether directed verdict was proper for Terry’s loss-of-consortium claim | Terry: his testimony and Mary's harm support consortium damages | Defendants: insufficient evidence specific to Terry’s damages | Court: Directed verdict affirmed as to Terry—insufficient evidence of his damages |
| Admissibility of Dr. Naughton’s testimony on prognosis and recurrence risk (defendants’ cross-appeal) | Plaintiffs: testimony relevant to show earlier detection yields better prognosis; corroborates negligence consequences | Defendants: testimony improperly focused on risk/recurrence (loss-of-chance) and on condition not limited to time of trial | Court: Admission not an abuse of discretion when limited to showing that earlier discovery improves prognosis; on remand evidentiary rulings must reflect this opinion |
Key Cases Cited
- Scheele v. Rains, 292 Neb. 974 (statement of directed verdict standard and review)
- Rankin v. Stetson, 275 Neb. 775 (refused to recognize loss-of-chance doctrine)
- Matsuyama v. Birnbaum, 452 Mass. 1 (Massachusetts case recognizing loss-of-chance theory)
- 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 prove proximate cause before jury may assess full damages)
- Steineke v. Share Health Plan of Neb., 246 Neb. 374 (dissent noted prior case language on loss-of-chance but not controlling)