Cohan v. Medical Imaging Consultants, 297 Neb. 111

Background

Mary Cohan had reported breast lumps in 2008–2009 and underwent mammography readings by Medical Imaging Consultants and Dr. Faulk in 2009 that were read as normal.
In October 2010 a subsequent mammogram identified a 7.1 cm breast cancer that had metastasized to 19 of 24 lymph nodes; Mary underwent extensive treatment (chemo, radiation, double mastectomy, reconstruction) and suffered ongoing physical and mental injury.
The Cohans sued defendants (radiologist, imaging practice, OB‑GYN practice, PA) alleging negligent failure to detect the tumor in 2009, causing a yearlong delay in diagnosis and worse outcome (greater tumor size, more node involvement, increased recurrence risk, pain/suffering, shortened life expectancy, and loss of consortium).
Plaintiffs presented expert testimony that the 2009 tumor was present (approx. 3.5 cm and fewer nodes) and that earlier detection would have improved prognosis and reduced recurrence risk (experts gave population‑based recurrence probabilities). Mary testified to anxiety, pain, and other damages.
At close of plaintiffs’ case, the trial court granted defendants’ motions for directed verdict, concluding negligence issues could go to a jury but that plaintiffs had not proved causation or damages except a loss‑of‑chance of lower non‑recurrence—an approach Nebraska does not recognize; trial court dismissed with prejudice.
On appeal the Nebraska Supreme Court declined to adopt the loss‑of‑chance doctrine but held that plaintiffs had presented sufficient evidence of negligence, causation, and damages as to Mary’s claim to survive a directed verdict; Terry’s consortium claim failed for lack of proof. The case was reversed in part and remanded for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nebraska should adopt the loss‑of‑chance doctrine	Cohans: loss of a chance to achieve a better outcome (reduced recurrence risk) is compensable and experts showed risk increased from ~30% to ~75%	Defendants: loss‑of‑chance relaxes causation to mere possibility, invites speculation and unwarranted liability	Court refused to adopt loss‑of‑chance or Restatement §323; Nebraska does not recognize the doctrine
Whether plaintiffs met traditional malpractice causation and damages standard	Cohans: experts showed deviation from standard, tumor progressed, and delay proximately caused increased harm and emotional distress	Defendants: plaintiffs failed to prove proximate cause and damages apart from loss‑of‑chance theory	Court held plaintiffs presented enough evidence on Mary’s causation and damages (anxiety, physical harm, worse prognosis) to send to jury; directed verdict for Mary reversed
Whether directed verdict was proper for Terry’s loss of consortium claim	Terry: consortium damages flow from Mary’s injuries	Defendants: insufficient evidence specific to Terry	Court affirmed directed verdict for defendants as to Terry — insufficient proof for his claim
Admissibility of Dr. Naughton’s expert testimony about recurrence risk	Cohans: testimony relevant to show earlier detection gives better prognosis and to quantify damages	Defendants: testimony improperly focused on loss‑of‑chance and future risk not Mary’s condition at trial	Court held trial court did not abuse discretion in admitting Naughton for limited purpose (early discovery → better prognosis); on remand evidentiary rulings to be reconsidered in light of opinion

Key Cases Cited

Scheele v. Rains, 292 Neb. 974 (standard for reviewing directed verdicts)
Rankin v. Stetson, 275 Neb. 775 (Nebraska refusal to recognize loss‑of‑chance)
Matsuyama v. Birnbaum, 452 Mass. 1 (Mass. SJC adopting loss‑of‑chance approach recognizing diminished survival probability as injury)
Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993) (criticizing loss‑of‑chance for reducing causation to possibility)
David v. DeLeon, 250 Neb. 109 (principle that plaintiff must first prove proximate cause before jury may apportion damages)