Cohan v. Medical Imaging Consultants
297 Neb. 111
| Neb. | 2017Background
- Mary Cohan had a normal mammogram read by Medical Imaging Consultants/Dr. Faulk in October 2009 after reporting lumps; in October 2010 cancer was diagnosed (7.1 cm tumor, 19/24 nodes positive).
- Cohans sued multiple providers alleging negligence in failing to detect cancer in 2009, causing delayed diagnosis, worsened prognosis, pain and suffering, and loss of consortium for Terry.
- Experts for the Cohans testified the 2009 mammogram showed an abnormality, that the tumor likely was smaller in 2009 (≈3.5 cm, ~3 nodes) and that delayed diagnosis increased risk of distant recurrence (≈30% if found in 2009 vs ≈75% when found in 2010).
- At close of the Cohans’ case, defendants moved for directed verdicts; the district court granted directed verdicts, reasoning Nebraska does not recognize the loss-of-chance doctrine and Mary’s evidence only proved a lost chance of lower recurrence risk.
- The Supreme Court declined to adopt the loss-of-chance doctrine but held that on traditional malpractice principles Mary had produced sufficient evidence of negligence, causation, and damages (emotional distress, pain) to avoid a directed verdict; Terry’s claim failed for lack of proof.
- The case was affirmed in part (Terry) and reversed and remanded for a new trial as to Mary; trial court evidentiary rulings on expert testimony should be reconsidered in light of the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska should adopt loss-of-chance doctrine | Cohans: Nebraska should adopt loss-of-chance so lost probability of better outcome is compensable | Defs: Loss-of-chance relaxes causation to mere possibility and would expand liability improperly | Court: Declined to adopt loss-of-chance or Restatement §323 approaches; Nebraska does not recognize loss-of-chance |
| Whether plaintiff presented sufficient causation under traditional malpractice law | Cohans: Expert testimony showed deviation from standard of care that caused tumor growth and increased recurrence risk, satisfying proximate cause | Defs: Evidence only shows lost chance of lower recurrence risk, not proximate cause of present injury | Court: Under traditional standard, Mary presented sufficient evidence of negligence, causation, and damages to proceed to a jury |
| Whether a directed verdict was proper for Mary and Terry | Cohans: directed verdict improper because disputed facts and expert opinions should go to jury | Defs: Directed verdict appropriate—insufficient proof of causation/damages (esp. Terry) | Court: Directed verdict reversed for Mary (erroneous); affirmed for Terry (insufficient evidence) |
| Admissibility of Dr. Naughton’s testimony re: recurrence risk | Cohans: Testimony relevant to show earlier detection yields better prognosis and to prove damages | Defs: Testimony improperly based on lost-chance theory and not limited to condition at trial | Court: Testimony admissible for limited purpose (early discovery leads to better prognosis); trial court should reassess evidentiary rulings on remand |
Key Cases Cited
- Scheele v. Rains, 292 Neb. 974 (Neb. 2016) (standard for reviewing directed verdicts and giving nonmoving party benefit of controverted facts)
- Rankin v. Stetson, 275 Neb. 775 (Neb. 2008) (Nebraska has not recognized loss-of-chance doctrine)
- Matsuyama v. Birnbaum, 452 Mass. 1 (Mass. 2008) (adopts loss-of-chance approach allowing recovery for diminished chance of survival)
- Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993) (criticizes loss-of-chance as lowering causation to possibility and warns of speculative awards)
- David v. DeLeon, 250 Neb. 109 (Neb. 1996) (plaintiff entitled to full compensation for damages proximately resulting from defendant’s act; jury must find proximate cause)
- Hamilton v. Bares, 267 Neb. 816 (Neb. 2004) (elements required in medical malpractice actions)