Cohan v. Medical Imaging Consultants, 297 Neb. 111

Background

In 2008–2010 Mary Cohan had breast imaging; a 2009 screening read as normal but a 2010 study showed a 7.1 cm cancer with metastasis to 19 of 24 lymph nodes. Plaintiffs allege negligence in 2009 that delayed diagnosis by ~1 year.
Plaintiffs sued radiologist (Medical Imaging Consultants, P.C., and Dr. Faulk) and Mary’s OB/GYN practice/providers for malpractice, claiming increased tumor size, greater nodal spread, worsened prognosis, pain and suffering, and increased risk of recurrence.
Plaintiffs presented three expert depositions: a breast radiologist (Appleton) who opined the 2009 image showed an abnormality, an OB/GYN (Gatewood) who said earlier diagnosis would likely have found the cancer in 2009, and an oncologist (Naughton) who quantified recurrence risk shifting from ~30% (if found in 2009) to ~75% (as found in 2010).
At the close of plaintiffs’ case, the district court granted defendants’ motions for directed verdict: it found sufficient evidence of negligence but concluded plaintiffs offered only a loss-of-chance theory (which Nebraska had not adopted) as to Mary’s ultimate harm and no probative evidence as to Terry’s consortium claim.
On appeal the Nebraska Supreme Court declines to adopt the loss-of-chance doctrine or Restatement § 323 but holds that, under traditional proximate-cause principles and giving plaintiffs every favorable inference, there was sufficient evidence of causation and damages to send Mary’s claim to a jury; Terry’s claim is affirmed as dismissed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nebraska should adopt the loss-of-chance doctrine	Cohans: Nebraska should adopt loss-of-chance so diminished probability of a better outcome (e.g., lower recurrence risk) is compensable	Appellees: Loss-of-chance relaxes causation to mere possibility and invites speculative awards	Court: Declines to adopt loss-of-chance or Restatement § 323; retains traditional causation standard
Whether plaintiffs proved causation and damages for Mary sufficient to avoid directed verdict	Cohans: Expert testimony established deviation from standard and that delay increased tumor size, nodal spread, and recurrence risk, causing emotional and physical harm	Appellees: Evidence shows only increased risk (loss of chance), not proved actual proximate cause of ultimate harm	Court: Reverses directed verdict as to Mary — evidence allowed reasonable inference of causation and compensable damages (pain, suffering, anxiety) for jury to decide
Whether Terry presented probative evidence of loss of consortium damages	Terry: Loss of consortium arises from wife's worsened condition	Defendants: No probative testimony quantifying or linking damages to defendants' conduct	Court: Affirms directed verdict dismissing Terry’s claim for lack of proof
Admissibility of Dr. Naughton’s testimony quantifying recurrence risk	Plaintiffs: Naughton’s testimony is relevant to prognosis and to show earlier detection would likely have improved outcome	Defendants: Testimony impermissibly relies on loss-of-chance theory and on prognosis beyond plaintiff’s condition at trial	Court: Did not abuse discretion in admitting Naughton’s testimony for limited purpose (showing early detection likely leads to better prognosis); on retrial court must reconsider evidentiary objections in light of opinion

Key Cases Cited

Scheele v. Rains, 292 Neb. 974 (statement of directed verdict standard and appellate review)
Rankin v. Stetson, 275 Neb. 775 (Nebraska previously stated loss-of-chance not recognized)
Matsuyama v. Birnbaum, 452 Mass. 1 (Mass. SJC adopting loss-of-chance theory for survival/prognosis diminution)
Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993) (criticizing loss-of-chance as reducing causation to possibility)
David v. DeLeon, 250 Neb. 109 (explaining damages include aggravation by preexisting conditions but plaintiff must first prove proximate cause)