Cohan v. Medical Imaging Consultants
297 Neb. 111
| Neb. | 2017Background
- Mary Cohan underwent a screening mammogram in October 2009 read as normal; in October 2010 she was diagnosed with advanced breast cancer (7.1 cm tumor, 19/24 positive lymph nodes).
- Plaintiffs (Mary and husband Terry) sued radiologist Dr. Faulk/Medical Imaging Consultants and providers at Bellevue Ob-Gyn (including PA Michelle Berlin), alleging negligent failure to diagnose in 2009 caused delayed treatment, greater morbidity, shortened life expectancy, emotional distress, and loss of consortium.
- Plaintiffs presented expert testimony that the 2009 images showed an abnormality, that earlier diagnostic workup would likely have detected a smaller tumor (≈3.5 cm) with fewer positive nodes, and that delayed diagnosis increased Mary’s risk of distant recurrence.
- At the close of plaintiffs’ case, defendants moved for directed verdicts; the district court granted the motion, finding sufficient evidence of negligence but concluding plaintiffs proved only a loss of chance of lower recurrence risk, which Nebraska does not recognize.
- On appeal the Nebraska Supreme Court declined to adopt the loss-of-chance doctrine but held that plaintiffs had nonetheless presented sufficient evidence of proximate causation and damages for Mary to survive a directed verdict; Terry’s loss-of-consortium claim failed for lack of probative evidence.
- The Supreme Court affirmed in part (Terry) and reversed and remanded for a new trial as to Mary, and instructed the trial court to reconsider evidentiary rulings in light of the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nebraska should adopt the loss-of-chance doctrine | Cohans: loss of a chance (reduced chance of non‑recurrence) is compensable and trial-worthy | Appellees: loss‑of‑chance relaxes causation to mere possibility and should not be adopted | Court: Declines to adopt loss‑of‑chance or Restatement §323 approaches |
| Whether plaintiffs proved proximate causation and damages for Mary to avoid directed verdict | Cohans: expert proof showed deviation from standard, tumor progression, increased nodal disease, greater recurrence risk and emotional/physical damages | Appellees: evidence only showed a lost chance of lower recurrence risk, insufficient under Nebraska law | Court: Sufficient evidence of negligence, causation, and damages (anxiety, pain/suffering, treatment consequences) existed to require a jury; directed verdict for Mary reversed |
| Whether Terry presented sufficient evidence for loss of consortium | Terry: testified about trauma and ongoing marital impact | Appellees: no probative evidence specific to Terry’s damages | Court: Directed verdict as to Terry affirmed for lack of evidence |
| Admissibility of Dr. Naughton’s testimony on prognosis/recurrence | Plaintiffs: testimony relevant to show earlier diagnosis leads to better prognosis and to support damages | Appellees: testimony improperly focused on future risk/loss‑of‑chance and should be excluded | Court: Admission not an abuse of discretion when limited to showing earlier detection improves prognosis; trial court to re-evaluate on remand as needed |
Key Cases Cited
- Scheele v. Rains, 292 Neb. 974 (standard of review for directed verdict)
- Rankin v. Stetson, 275 Neb. 775 (Nebraska has not recognized loss-of-chance)
- Matsuyama v. Birnbaum, 452 Mass. 1 (court adopting loss‑of‑chance theory in malpractice context)
- Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397 (Tex. 1993) (criticizing loss‑of‑chance as permitting mere possibility causation)
- David v. DeLeon, 250 Neb. 109 (plaintiff entitled to full compensation for all proximate damages; burden to prove causation first)