Cohan v. Medical Imaging Consultants
297 Neb. 111
| Neb. | 2017Background
- In 2009 Mary Cohan had a screening mammogram read as normal by Dr. Faulk (Medical Imaging Consultants); in 2010 a mammogram found a 7.1 cm breast cancer with metastasis to 19 of 24 lymph nodes.
- Plaintiffs (Mary and husband Terry) sued physicians and a PA for medical malpractice, alleging negligent failure to diagnose in 2009 that caused a yearlong delay and worsened prognosis, pain and suffering, shortened life expectancy, and loss of consortium.
- Plaintiffs presented expert testimony that the 2009 tumor was present (approx. 3.5 cm, ~3 nodes) and that earlier detection would likely have produced a better prognosis and lower risk of distant recurrence (30% if found in 2009 vs. 75% in 2010).
- At close of plaintiffs’ case, the district court granted defendants’ motion for directed verdict dismissing the complaint with prejudice, reasoning Nebraska does not recognize the loss-of-chance doctrine and plaintiffs’ proof amounted only to loss of chance of lower non-recurrence rate.
- On appeal the Nebraska Supreme Court declined to adopt the loss-of-chance doctrine, held that Mary presented sufficient evidence of negligence, causation, and damages (emotional distress/pain and suffering) to submit to a jury, reversed as to Mary, affirmed as to Terry, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska should adopt the loss-of-chance doctrine | Plaintiffs: adopt loss-of-chance or Restatement §323 to recover diminution in chance of better outcome | Defendants: loss-of-chance improperly relaxes causation to mere possibility and would expand liability | Court: declined to adopt loss-of-chance or Restatement §323; Nebraska does not recognize it |
| Whether plaintiffs proved causation and damages under traditional malpractice standard | Plaintiffs: experts showed deviation from standard, tumor progression, increased nodes, worsened prognosis and resulting pain/anxiety | Defendants: proof only shows increased risk (loss of chance), not proximate cause of compensable injury | Court: Mary presented sufficient evidence of negligence, causation, and emotional/physical damages to go to jury; directed verdict was erroneous as to Mary |
| Whether Terry proved loss of consortium damages | Terry: relied on Mary’s testimony and effects on marriage | Defendants: insufficient evidence specific to Terry’s claim | Court: affirmed directed verdict for defendants as to Terry—insufficient evidence for his claim |
| Admissibility of expert testimony re: recurrence risk and prognosis (Dr. Naughton) | Plaintiffs: testimony relevant to show that earlier detection would likely improve prognosis | Defendants: testimony improperly concerns loss-of-chance and focuses on future risk not plaintiff’s condition at trial | Court: trial court did not abuse discretion—testimony admissible to show early detection leads to better prognosis, but on retrial courts should reevaluate objections in light of this opinion |
Key Cases Cited
- Scheele v. Rains, 292 Neb. 974 (recognizing standard for reviewing directed verdicts)
- Rankin v. Stetson, 275 Neb. 775 (stating Nebraska has not recognized loss-of-chance doctrine)
- Matsuyama v. Birnbaum, 452 Mass. 1 (discussing loss-of-chance as compensable injury)
- Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex.) (criticizing loss-of-chance for reducing causation to possibility)
- David v. DeLeon, 250 Neb. 109 (explaining damages for aggravation of preexisting conditions and need to prove proximate cause)
- Steineke v. Share Health Plan of Neb., 246 Neb. 374 (dissent discussed loss-of-chance but not controlling)