Cohan v. Medical Imaging Consultants, 297 Neb. 111

Background

In 2009 Mary Cohan reported breast lumps and underwent a screening mammogram read as normal; in 2010 cancer was diagnosed (7.1 cm tumor, 19/24 positive lymph nodes).
Plaintiffs (Mary and husband Terry) sued radiologist/group and clinicians, alleging negligent failure to detect cancer in 2009, causing delay that worsened prognosis, increased recurrence risk, and produced pain, suffering, and loss of consortium.
Plaintiffs presented expert testimony: a breast radiologist that the 2009 film showed an abnormality; an OB/GYN that earlier diagnosis would likely have found the cancer earlier; and an oncologist who testified about tumor progression and quantified recurrence risk (≈30% if found in 2009 vs ≈75% in 2010).
Defendants moved for a directed verdict at the close of plaintiffs’ case; the district court granted it, finding negligence was for the jury but that plaintiffs proved only a “loss of chance” (which Nebraska has not adopted) and thus failed to prove compensable causation/damages.
On appeal, the Nebraska Supreme Court declined to adopt the loss-of-chance doctrine but held that Mary had presented sufficient evidence of causation and compensable damages (emotional distress, pain, altered treatment), reversing as to Mary and remanding for a new trial; the judgment for Terry (loss of consortium) was affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nebraska should adopt the loss-of-chance doctrine (or Restatement §323)	Loss-of-chance should be recognized so diminished probability of a better outcome is compensable	Loss-of-chance lowers causation to mere possibility, invites speculation, and is inconsistent with Nebraska standards/statutes	Court declined to adopt loss-of-chance or §323; Nebraska continues to require traditional proximate-cause standard
Whether plaintiffs proved proximate causation and damages as required for medical malpractice (Mary)	Experts showed deviation from standard, tumor progression, and increased recurrence risk; Mary testified to pain and anxiety from delayed diagnosis	Defendants said only a lost chance of lower recurrence rate was shown, insufficient under Nebraska law	Court held plaintiffs presented sufficient evidence on causation and compensable damages for Mary; directed verdict was erroneous and Mary’s claim remanded for trial
Whether directed verdict on Terry’s loss-of-consortium claim was proper	Terry contended consortium damages flow from Mary’s injury	Defendants argued Terry presented no probative evidence specific to his damages	Court affirmed directed verdict for defendants as to Terry: insufficient evidence supporting his claim
Whether admission of Dr. Naughton’s testimony (recurrence risk/prognosis) was erroneous	Testimony relevant to show earlier detection leads to better prognosis and supports causation/damages	Defendants argued it improperly relied on loss-of-chance theory and post-diagnosis prognosis instead of condition at trial	Court held district court did not abuse discretion in admitting the testimony for limited purpose (linking early detection to better prognosis); on remand evidentiary rulings must conform to this opinion

Key Cases Cited

Scheele v. Rains, 292 Neb. 974 (Neb. 2016) (standard of review for directed verdicts and treating contested facts in favor of nonmovant)
Rankin v. Stetson, 275 Neb. 775 (Neb. 2008) (Nebraska has not recognized loss-of-chance doctrine)
Matsuyama v. Birnbaum, 452 Mass. 1 (Mass. 2008) (adopting loss-of-chance concept in medical malpractice where negligence diminished chance of survival)
Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993) (criticizing loss-of-chance as reducing causation to possibility and encouraging speculation)
Steineke v. Share Health Plan of Neb., 246 Neb. 374 (Neb. 1994) (dissent discussed loss-of-chance; court did not adopt doctrine)
David v. DeLeon, 250 Neb. 109 (Neb. 1996) (explaining plaintiff must prove proximate cause before jury may apportion damages)