Cohan v. Medical Imaging Consultants

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2017 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
M ary Cohan and Terry Cohan, individually
and as wife and husband, appellants and
cross-appellees, v.Medical Imaging
Consultants, P.C., et al., appellees
and cross-appellants.
___ N.W.2d ___
Filed July 7, 2017. No. S-16-145.
1. Directed Verdict: Evidence: Appeal and Error. A directed verdict is
proper only when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be decided
as a matter of law. In reviewing that determination, an appellate court
gives the nonmoving party the benefit of every controverted fact and all
reasonable inferences from the evidence.
2. Physician and Patient: Negligence. Nebraska does not recognize the
loss-of-chance doctrine.
3. Malpractice: Physician and Patient: Proof: Proximate Cause. In
a malpractice action involving professional negligence, the burden of
proof is upon the plaintiff to demonstrate the generally recognized
medical standard of care, that there was a deviation from that standard
by the defendant, and that the deviation was a proximate cause of the
plaintiff’s alleged injuries.
4. Malpractice: Physicians and Surgeons: Proximate Cause: Damages.
In the medical malpractice context, the element of proximate causation
requires proof that the physician’s deviation from the standard of care
caused or contributed to the injury or damage to the plaintiff.
5. Directed Verdict. If there is any evidence which will sustain a finding
for the party against whom a motion for directed verdict is made, the
case may not be decided as a matter of law.
6. Damages. The amount of damages for pain, suffering, and emotional
distress inherently eludes exact valuation.
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Nebraska Supreme Court A dvance Sheets
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COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
7. ____. The amount of damages for pain, suffering and emotional distress
is a matter left largely to the discretion of the fact finder, which saw the
witnesses and heard the evidence.
8. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
9. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in
receiving or excluding an expert’s testimony which is otherwise relevant
will be reversed only when there has been an abuse of discretion.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Affirmed in part, and in part reversed and
remanded for a new trial.
Richard J. Rensch and Sean P. Rensch, of Rensch & Rensch
Law, P.C., L.L.O., for appellants.
David D. Ernst and Kellie Chesire Olson, of Pansing, Hogan,
Ernst & Bachman, L.L.P., for appellees Medical Imaging
Consultants, P.C., and Robert M. Faulk, M.D.
William R. Settles and Kate Geyer Johnson, of Lamson,
Dugan & Murray, L.L.P., for appellees Bellevue Obstetrics
and Gynecology Associates, P.C., et al.
H eavican, C.J., Wright, M iller-Lerman, Cassel, Stacy,
and K elch, JJ.
K elch, J.
I. INTRODUCTION
Mary Cohan and Terry Cohan brought a medical malprac-
tice action against Medical Imaging Consultants, P.C.; Robert
Faulk, M.D.; Bellevue Obstetrics and Gynecology Associates,
P.C.; Michael Woods, M.D.; and Michelle Berlin, a physi-
cian’s assistant (collectively Appellees). They alleged that
Appellees’ negligent treatment caused Mary’s breast cancer
to progress undiagnosed for 1 year and that her delayed
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COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
treatment caused physical and mental suffering, a shortened
life expectancy, loss of consortium for Terry, and an increased
risk of recurrence, entitling the Cohans to damages. After
the Cohans presented their case in chief to a jury, the district
court for Douglas County granted Appellees’ motion for a
directed verdict and dismissed the Cohans’ complaint with
prejudice. The Cohans now appeal and ask us to adopt the
loss-of-chance doctrine. Appellees cross-appeal, alleging that
the district court erred in allowing certain expert testimony.
We decline to adopt the loss-of-chance doctrine. However,
we conclude that, as to Mary’s cause of action, the Cohans
have met their burden under the traditional medical malprac-
tice standard. We therefore affirm in part and in part reverse,
and remand for a new trial, wherein the district court may
address the evidentiary issues raised on cross-appeal, in light
of this opinion.
II. BACKGROUND
In accordance with our standard of review, the following
facts give the nonmoving party the benefit of every contro-
verted fact and all reasonable inferences from the evidence.1
On August 8, 2008, Mary underwent a diagnostic examina-
tion at a hospital in Papillion, Nebraska, after reporting that
she felt some small lumps in her left breast. The diagnostic
examination, which consisted of a mammogram with additional
imaging and ultrasound, showed no abnormalities.
The following year, on October 12, 2009, Mary attended
her annual physical examination with Berlin, a physician’s
assistant for Dr. Woods at Bellevue Obstetrics and Gynecology
Associates. Mary told Berlin that Mary had lumps in her left
breast and that she was concerned about the appearance of
her left nipple. Shortly after this appointment, on October
21, Mary underwent a screening mammogram with Medical
1
See Scheele v. Rains, 292 Neb. 974, 874 N.W.2d 867 (2016).
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COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
Imaging Consultants. Dr. Faulk read the mammogram as nor-
mal, with no evidence of malignancy.
A year later, in October 2010, Mary’s annual mammo-
gram identified an abnormality in her left breast. Further
testing revealed a cancerous tumor. As a result, Mary under-
went chem­otherapy and radiation; a double mastectomy, dur-
ing which surgeons also removed axillary lymph nodes; and
reconstructive surgery. Upon removal, the cancerous tumor
measured 7.1 centimeters in diameter. Examination of the
lymph nodes showed that the tumor had metastasized, or
spread, to 19 of the 24 lymph nodes removed.
On December 4, 2015, the Cohans filed an amended com-
plaint against Appellees. They alleged that Appellees were
negligent in failing to detect abnormalities in Mary’s exami-
nations in 2009 that would have led to the discovery of
cancer prior to the discovery in 2010. They further alleged
that Mary was prevented from being afforded a better out-
come because of the yearlong delay in diagnosing the cancer
and that she further sustained damages from a shortened life
expectancy and physical and mental suffering. The Cohans
incorporated the same allegations into Terry’s cause of action
and averred that Terry has and will sustain damages due to a
loss of consortium.
Mary testified about the emotional trauma, anxiety, agony,
and distress she experienced when she received the cancer
diagnosis and had to decide whether to undergo surgical
removal of one or both breasts. For a time, she took Xanax,
an antianxiety medication, to help her cope. Mary testified
that she also had mental pain and anguish as a result of the
yearlong delay in diagnosis, and we set forth a portion of that
testimony in the analysis section below. Mary further testi-
fied that 5 years after her diagnosis, she talked to her surgeon
about the relative risk of recurrence and that that conversation
caused her more anxiety than she had already been suffering.
As of the time of trial, Mary had not experienced a recurrence
of cancer.
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COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
Mary testified about the pain, fatigue, and other negative
experiences incident to her surgery, chemotherapy, and radia-
tion treatments. She stated that at the time of trial, she still had
pain from the mastectomy. Mary described herself as “disfig-
ured” after the reconstructive surgery “turned out horrible” due
to the effects of radiation treatments. At the time of trial, she
had “huge scars” and no nipples, her breasts were “lopsided”
and “ugly,” and one breast was as “hard as a rock.” At the time
of trial, Mary was taking medication to prevent cancer from
recurring. She testified that this was stressful for her and that
the medication weakened her bones. Mary also testified that
she wore a compression sleeve on her left arm all day due to a
condition called lymphedema, which, she stated, developed as
a result of removing “quite a few lymph nodes.”
Terry testified that he and Mary were married on September
4, 1982. He stated that he had been with her throughout her
cancer diagnosis, treatment, and surgery. Terry described the
entire experience as “quite traumatic” for them both, par-
ticularly following the diagnosis, when they were both “very
upset, confused, [and] distraught.” At the time of trial, Mary’s
emotional reaction to the cancer was not as intense as it was
initially, but Mary still expressed concerns to Terry “[a]ll the
time.” Terry confirmed that Mary had used Xanax to help her
cope but that she was not using it at the time of trial.
In addition to Terry’s testimony, the Cohans presented
deposition testimony of three expert witnesses. Dr. Catherine
Appleton, a diagnostic radiologist with a subspecialty in breast
imaging, opined that the 2009 mammogram showed an abnor-
mality in Mary’s left breast, which Dr. Appleton believed to
be a cancerous tumor. In Dr. Appleton’s opinion, to comply
with the standard of care, Dr. Faulk should have taken fur-
ther action to diagnose Mary’s cancer following Mary’s 2009
appointment and mammogram. She testified that had Mary
undergone diagnostic imaging of her breast in 2009, more
likely than not, the breast cancer would have been found.
According to Dr. Appleton, the tumor grew in the interim
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COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
between the 2009 mammogram and the ultimate cancer diag-
nosis in 2010.
Dr. Appleton’s testimony indirectly addressed the issue of
breast conservation. Without prior evidence of Dr. Appleton’s
opinion about Mary’s eligibility for breast-conserving surgery,
the following colloquy occurred:
Q. And while you may have the opinion that [Mary]
might have been eligible to have breast conserving sur-
gery if her cancer had been diagnosed in 2009, that
decision is actually up to the patient, isn’t it, whether to
have a lumpectomy or a mastectomy or some other form
of treatment?
A. Well, to the extent that a surgeon can offer breast
conservation therapy, there is a discussion between the
surgeon and the patient. Some patients will not be offered
breast conservation therapy. But on the other side of the
coin, some patients who could get a lumpectomy choose
to have a mastectomy. So it can go one way, but there
are times when a patient just simply will not be offered
breast conservation due to the extent of [the] disease. So
it’s not simply up to the patient.
....
Q. Even if [Mary] was diagnosed with breast cancer
in 2009 or even in 2008, and even she was — even if it
would have been a stage 2 cancer at that time and she
might have been eligible for a lumpectomy operation if
she wanted to choose that option, she still was going to
have to have some sort of operation on her breast, true?
A. Yes. That would be convention, yes.
A 2010 MRI report received into evidence stated that the
condition of Mary’s left breast “would likely contraindicate
nipple sparing procedures.”
The Cohans presented the deposition testimony of Dr. Paul
Gatewood, an obstetrician-gynecologist, who stated that Berlin
had deviated from the standard of care in 2009. When asked
whether he an opinion about what Mary’s outcome would
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Nebraska Supreme Court A dvance Sheets
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COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
have been had Berlin acted within the standard of care, Dr.
Gatewood testified that the cancer would have been discovered
in 2009. He observed that early diagnosis is the key to survival
of any cancer, particularly breast cancer. He explained that the
natural progression of a tumor is to grow until it is treated. Dr.
Gatewood opined that had Mary’s cancer been discovered a
year earlier, the tumor likely would have been smaller and the
lymph node involvement less extensive.
The Cohans also presented the deposition testimony of
oncologist Dr. Michael Naughton, who explained the pro-
gression of the cancer and the risk of recurrence. Before
Dr. Naughton’s trial deposition testimony was presented to
the jury, the district court overruled Appellees’ motions to
strike portions pertaining to risk of recurrence and loss-of-
chance damages. The district court reasoned that the testi-
mony was allowed by Rankin v. Stetson,2 as “evidence that
early intervention would more likely than not have led to an
improved outcome.”
Dr. Naughton estimated that in 2009, Mary’s cancer likely
involved a 3.5 centimeter tumor and up to 3 lymph nodes,
in contrast with the 7.1 centimeter tumor and 19 cancerous
lymph nodes discovered in 2010. He testified that Mary’s
tumor was moderately aggressive and that a tumor generally
becomes more aggressive rather than less aggressive over
time. Further, he testified that a tumor often develops the
ability to spread at some point in its life cycle. Dr. Naughton
stated that the smaller the cancerous tumor and the fewer
lymph nodes involved at the time of diagnosis, the better the
prognosis for the patient; whereas, the larger the tumor and
the more lymph nodes infiltrated, the greater the risk of recur-
rence. He affirmed that risk of recurrence generally meant
cancer manifesting itself distantly, past the nodes.
Dr. Naughton testified that the risk of recurrence “essen-
tially starts at day zero from diagnosis and is continuous at a
2
Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008).
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COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
relatively stable level for the first ten years from diagnosis.”
He further explained that “roughly half the estimated recur-
rences happen in the first five years” and that the risk of recur-
rence is reduced when there has been no recurrence during the
first five years following diagnosis. However, according to
medical records, Mary’s surgeon advised her that “we see more
recurrences of hormone driven cancers in the second five years
rather than the first.”
Dr. Naughton testified that the risk of recurrence was
based on population data and could not be extrapolated to
an individual level and that he could not predict whether a
specific person would fall into the group that experiences a
recurrence. According to Dr. Naughton, risk of recurrence
data is used to counsel individual patients about risk and to
“classify women in a risk group so we can do clinical trials so
we can study how different risk groups behave and respond
to therapy.”
Based on population data, Dr. Naughton testified that
considering the type of cancer discovered in 2010, Mary’s
10-year risk of recurrence “distantly is at least 75 percent.”
Dr. Naughton acknowledged that Mary’s medical records as
recently as 2014 showed no recurrence of cancer since her
initial diagnosis in 2010 and that it was his understanding that
Mary had experienced no recurrence. He testified that, conse-
quently, her prognosis as to her rate of recurrence was better at
the time of his 2015 deposition than it was when she was first
diagnosed 5 years earlier, in 2010. He estimated that because
Mary had “lived through approximately half of her risk,” her
10-year recurrence risk moving forward from the time of trial
was “as low as 35 percent.”
Dr. Naughton also testified that had Mary’s cancer been
discovered in October 2009, her 10-year risk of recurrence
would have been approximately 30 percent. He estimated that
because Mary had lived through 6 years, or 60 percent, of that
10-year period, her residual risk of recurrence at the time of
trial was 12 percent.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
At the close of the Cohans’ case in chief, Appellees
moved for a directed verdict on the basis that the Cohans
failed to make a prima facie case of causation and dam-
ages against them. The district court granted the motion and
stated:
As far as the directed verdict on causation and damages
are concerned . . . I’m satisfied that there is sufficient
evidence of negligence that that issue would go before
the jury.
I’m further satisfied that there is no probative evidence
of damage [to Terry]. There’s no testimony with regard to
[Terry’s] claim.
And with regard to [Mary’s] claim, I am satisfied
that there is no sufficient proof of damage or causa-
tion other than the loss of chance of a . . . lower rate of
non-­recurrence. And under the law of Nebraska at the
present time that does not constitute a proper measure
of damage.
For that reason I must sustain the motions for directed
verdict filed by [Appellees] in this matter.
The Cohans now appeal this ruling.
Appellees cross-appeal, challenging the district court’s rul-
ing on their motions to strike testimony by Dr. Naughton.
III. ASSIGNMENTS OF ERROR
On direct appeal, the Cohans assign that the district court
erred in (1) granting Appellees’ motions for directed verdict
on the issues of proximate cause and damages and (2) dis-
missing the Cohans’ first amended complaint on the basis
that Mary failed to offer sufficient proof of damages or
causation other than a “‘loss of chance of a lower rate of
non-recurrence.’”
On cross-appeal, Appellees essentially assign that the district
court erred in denying their motions to strike Dr. Naughton’s
testimony.
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COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 111
IV. STANDARD OF REVIEW
[1] A directed verdict is proper only when reasonable
minds cannot differ and can draw but one conclusion from
the evidence, that is, when an issue should be decided as a
matter of law. In reviewing that determination, we give the
nonmoving party the benefit of every controverted fact and all
reasonable inferences from the evidence.3
V. ANALYSIS
1. M ary’s Claim
The Cohans approach this appeal from two different per-
spectives. They claim that they have met the traditional bur-
den of proof for a medical malpractice claim but that if
not, we should adopt the loss-of-chance doctrine and/or the
Restatement (Second) of Torts.4
First, they point to their experts’ opinions that Appellees
were negligent in not locating the tumor in 2009 and that such
negligence increased Mary’s risk of distant metastatic recur-
rence, which was 30 percent if the tumor had been discovered
in 2009, but rose to 75 percent by the time the tumor was
discovered 1 year later. Based upon this testimony, the Cohans
argue that the district court should not have granted a directed
verdict, thus precluding consideration by a jury, because suffi-
cient prima facie evidence had been presented showing (1) that
there was a deviation from the standard of care by Appellees
and (2) that the deviation was a proximate cause of Mary’s
injuries. However, the Cohans’ arguments in regard to Mary’s
chances of survival are valid only if Nebraska adopts the loss-
of-chance doctrine, a doctrine which, as discussed in more
detail below, we have not adopted to date.
(a) Loss-of-Chance Doctrine
The loss-of-chance doctrine is based upon the Restatement
(Second) of Torts, which provides:
3
Scheele v. Rains, supra note 1.
4
See Restatement (Second) of Torts § 323 (1965).
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COHAN v. MEDICAL IMAGING CONSULTANTS
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One who undertakes, gratuitously or for consideration,
to render services to another which he should recognize
as necessary for the protection of the other’s person or
things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to
perform his undertaking, if
(a) his failure to exercise such care increases the risk
of such harm, or
(b) the harm is suffered because of the other’s reliance
upon the undertaking.5
One of the early discussions in regard to the loss-of-chance
doctrine was a 1981 law journal article,6 which reasoned:
Causation refers to the cause and effect relationship that
must be established between tortious conduct and a loss
before liability for that loss may be imposed. Causation
questions relate to the fact of a loss or of its source.
Valuation is the process of identifying and measuring the
loss that was caused by the tortious conduct. . . .
....
[The courts’] failure to distinguish between the func-
tions of causation and valuation, or to identify and value
rationally the true interests lost, has created a serious
gap in the remedial structure. Courts have had difficulty
perceiving that a chance of avoiding some adverse result
or of achieving some favorable result is a compensable
interest in its own right. In some respects the notion of
chance has been subsumed into the final result. When this
occurs, the loss of a chance of avoiding some adverse
result or achieving some favorable result either is com-
pletely redressed or is denied, depending on the likeli-
hood, destroyed by the defendant’s tortious conduct, of
avoiding or achieving the particular result.
5
Id. at 135.
 6
Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury
Torts Involving Preexisting Conditions and Future Consequences, 90 Yale
L.J. 1353, 1353-54 (1981).
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COHAN v. MEDICAL IMAGING CONSULTANTS
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. . . [T]he loss of a chance of achieving a favorable
outcome or of avoiding an adverse consequence should
be compensable and should be valued appropriately,
rather than treated as an all-or-nothing proposition.
Courts have taken this loss-of-chance discussion and applied
it to medical malpractice actions by requiring a plaintiff to
prove by a preponderance of the evidence that the medical
provider’s negligence caused the plaintiff’s injury, where the
injury consists of the diminished likelihood of achieving a
more favorable medical outcome.7 However, they have adopted
different permutations of the loss-of-chance doctrine.
One version, commonly termed the “relaxed causation”
approach, simply loosens the traditional standard of evi-
dentiary sufficiency, permitting the causation issue to
be resolved by the fact finder even though there is no
evidence of a reasonable probability that the defendant’s
negligence caused the patient’s death or other ultimate
harm. . . .
Under the relaxed causation approach, the patient’s
ultimate death or injury, and not the lost chance itself,
continues to be treated as the relevant harm when deter-
mining proximate cause. Hence, even while the lost
chance may be less than even, full damages are awarded
in the same manner as if the plaintiff had established cau-
sation under traditional principles. . . .
....
. . . Other states, typically relying on the Second
Restatement of Torts § 323(a), allow the case to be sub-
mitted based on evidence that the defendant’s negligence
increased the risk of the ultimate harm. . . .
....
. . . Under this approach, damages are limited solely to
the value of the lost chance.8
7
See, e.g., Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E.2d 819 (2008).
8
Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397, 401-02 (Tex.
1993) (citations omitted).
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The Cohans note that several states have adopted some
v­ersion of the loss-of-chance doctrine.9 In particular, the
Cohans cite to Matsuyama v. Birnbaum,10 a Massachusetts
case which involved the death of the patient. There, the
court held:
“[I]njury” need not mean a patient’s death. Although
there are few certainties in medicine or in life, prog-
ress in medical science now makes it possible, at least
with regard to certain medical conditions, to estimate a
patient’s probability of survival to a reasonable degree of
medical certainty. . . That probability of survival is part
of the patient’s condition. When a physician’s negligence
diminishes or destroys a patient’s chance of survival,
the patient has suffered real injury. The patient has lost
something of great value: a chance to survive, to be
cured, or otherwise to achieve a more favorable medi-
cal outcome.11
9
See, Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688
P.2d 605 (1984); Ferrell v. Rosenbaum, 691 A.2d 641 (D.C. 1997); Holton
v. Memorial Hosp., 176 Ill. 2d 95, 679 N.E.2d 1202, 223 Ill. Dec. 429
(1997); Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000); DeBurkarte
v. Louvar, 393 N.W.2d 131 (Iowa 1986); Delaney v. Cade, 255 Kan. 199,
873 P.2d 175 (1994); Hastings v. Baton Rouge Gen. Hosp., 498 So. 2d
713 (La. 1986); Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo.
1992); Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824 (1985); Perez
v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991); Evers v.
Dollinger, 95 N.J. 399, 471 A.2d 405 (1984); Alberts v. Schultz, 126 N.M.
807, 975 P.2d 1279 (1999); Roberts v. Permanente Med. Group, 76 Ohio
St. 3d 483, 668 N.E.2d 480 (1996); McKellips v. Saint Francis Hosp., Inc.,
741 P.2d 467 (Okla. 1987); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280
(1978); Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000) (abrogated by
statute as stated in Smith v. Bubak, 643 F.3d 1137 (8th Cir. 2011)); Brown
v. Koulizakis, 229 Va. 524, 331 S.E.2d 440 (1985); Herskovits v. Group
Health, 99 Wash. 2d 609, 664 P.2d 474 (1983); Thornton v. CAMC, Etc.,
172 W. Va. 360, 305 S.E.2d 316 (1983); Ehlinger v. Sipes, 155 Wis. 2d 1,
454 N.W.2d 754 (1990); McMackin v. JCHC, 88 P.3d 491 (Wyo. 2004).
10
Matsuyama v. Birnbaum, supra note 7.
11
Id. at 16, 890 N.E.2d at 832 (citations omitted).
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COHAN v. MEDICAL IMAGING CONSULTANTS
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In countering these arguments, the Texas Supreme Court in
Kramer v. Lewisville Memorial Hosp.12 noted that the real harm
in any case is whether the patient ultimately suffers a recur-
rence or death. The court in Kramer went on to state:
Unless courts are going to compensate patients who “beat
the odds” and make full recovery, the lost chance cannot
be proven unless and until the ultimate harm occurs. .
. . Hence, legal responsibility under the loss of chance
doctrine is in reality assigned based on the mere pos-
sibility that a tortfeasor’s negligence was a cause of the
ultimate harm.13
Although we find this reasoning persuasive, we acknowledge
that the loss-of-chance doctrine has a level of attractiveness in
protecting patients who are struggling with a serious medical
situation, but, as we discuss later, the doctrine also comes with
inherent drawbacks.
Were we to apply the loss-of-chance doctrine in the instant
case, with Mary not having a recurrence as of the time of trial,
the damages would represent the “mere possibility” that the
tort-feasors’ negligence caused ultimate harm, a harm which
may never occur. Even a court which adopted a version of the
loss-of-chance doctrine recognized that some versions of that
doctrine allow “a jury to speculate on causation because expert
testimony that a physician’s negligence probably caused the
total damages is not required.”14 Here, the jury would be left
to speculate on possible harm in the future, since there was
no evidence of Mary’s chance of survival even if the cancer
returned. The Cohans’ expert only opined regarding the chance
of recurrence, which, at the time of trial, was 30 percent.
In addition, although we are sympathetic to the Cohans’
situation, adoption of the loss-of-chance doctrine in this case
12
Kramer v. Lewisville Memorial Hosp., supra note 8.
13
Id. at 405 (citation omitted) (emphasis in original).
14
DeBurkarte v. Louvar, supra note 9, 393 N.W.2d at 137 (emphasis in
original).
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would create unwarranted liability in other cases and other
medical contexts. It would, for example, reduce the standard
of causation to a mere possibility rather than a preponderance
of the evidence and allow for lawsuits in which the patient
involved had only a slight chance of survival even prior to
the medical professional’s negligent conduct. Although no
profession should avoid the consequences of negligent con-
duct, we choose not to lower the well-established standard
of causation.
Lastly, as noted by the court in Kramer, how does an appel-
late court avoid the application of the loss-of-chance doctrine
in other areas of the law, beyond medical malpractice? For
example, does an unsuccessful litigant have a cause of action
where an attorney’s failure to object to evidence which negli-
gently reduced the chance of success by some degree? After
reviewing the several arguments for and against, we decline
to adopt either the loss-of-chance doctrine or § 323 of the
Restatement (Second) of Torts.
[2] Finally, the Cohans argue that this court has already
adopted the loss-of-chance doctrine in Nebraska. They point
to Steineke v. Share Health Plan of Neb.,15 where the dissent-
ing opinion argued that in Washington v. American Community
Stores Corp.,16 this court had “wittingly or unwittingly, wisely
or unwisely, . . . recognized loss of chance as an element
of tort damages.” But the dissent also stated, “Perhaps the
majority opinion has, knowingly or otherwise, silently over-
ruled Washington.”17 Although past dissenting justices have
expressed a desire to consider the loss-of-chance doctrine,
we do not find this language controlling, especially, in view
15
Steineke v. Share Health Plan of Neb., 246 Neb. 374, 381, 518 N.W.2d
904, 909 (1994) (Caporale, J., dissenting; Lanphier, J., joins).
16
Washington v. American Community Stores Corp., 196 Neb. 624, 244
N.W.2d 286 (1976).
17
Steineke v. Share Health Plan of Neb., supra note 15, 246 Neb. at 381, 518
N.W.2d at 909 (Caporale, J., dissenting; Lanphier, J., joins).
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of the more recent case of Rankin v. Stetson,18 where we spe-
cifically stated, “We agree that an opinion framed in terms of
loss of chance would not sustain [the plaintiff’s] burden of
establishing that the defendants proximately caused her injury.
We also note that Nebraska has not recognized the loss-of-
chance doctrine.”
To further support their contention that we have already
adopted the loss-of-chance doctrine, the Cohans point to our
previous approval of NJI2d Civ. 4.09, suggesting that “‘[i]f
you cannot separate damages caused by the pre-existing con-
ditions from those caused by the accident, then the defendant
is liable for all of those damages.’”19 In David v. DeLeon,20
we stated:
“‘In an action for damages for personal injuries caused
by a wrongful act or omission, the injured person is enti-
tled to recover full compensation for all damage proxi-
mately resulting from the defendant’s act, even though
his injuries may have been aggravated by reason of his
pre-­existing physical or mental condition, rendered more
difficult to cure by reason of his state of health, or more
serious, because of a latent disease, than they would have
been had he been in robust health. . . .’”
However, we also stated, “We find that this instruction was
the correct statement of the law and that it did not misstate
the burden of proof: the instruction does not permit a jury to
assess damages in any amount unless the plaintiff first proves
proximate cause.”21 Our statement in David is consistent with
the principle that the Cohans had the initial burden to prove
causation of damages before a jury could proceed to appor-
tioning damages.
18
Rankin v. Stetson, supra note 2, 275 Neb. at 787, 749 N.W.2d at 469.
19
See David v. DeLeon, 250 Neb. 109, 113, 547 N.W.2d 726, 729 (1996).
See, also, NJI2d 4.09, comment.
20
David v. DeLeon, supra note 19, 250 Neb. at 114, 547 N.W.2d at 729,
quoting 22 Am. Jur. 2d Damages § 122 (1965).
21
Id. at 114, 547 N.W.2d at 730 (emphasis supplied).
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Furthermore, we note that in some instances, the applica-
tion of the loss-of-chance doctrine, with its relaxed burden
of proof, could prove contradictory to the Nebraska Hospital-
Medical Liability Act, under which the claimant may recover
damages only for those losses that are the direct and proximate
result of the defendant’s wrongful actions, as established by a
preponderance of the evidence.22
After considering the Cohans’ arguments, we conclude that
this court has not adopted the loss-of-chance doctrine, and we
shall not adopt it at this time.
(b) Present Standard for Medical
Malpractice Action
Next, the Cohans argue that the district court should not
have granted a directed verdict, because they presented suf-
ficient prima facie evidence showing causation and damages
under our present standard for a medical malpractice action.
[3,4] Currently, in Nebraska, in a malpractice action involv-
ing professional negligence, the burden of proof is upon the
plaintiff to demonstrate the generally recognized medical stan-
dard of care, that there was a deviation from that standard by
the defendant, and that the deviation was a proximate cause
of the plaintiff’s alleged injuries.23 In the medical malpractice
context, the element of proximate causation requires proof
that the physician’s deviation from the standard of care caused
or contributed to the injury or damage to the plaintiff.24 The
Cohans contend they have met these standards through their
evidence and that as result, the jury, as trier of the facts, should
resolve conflicts in the evidence and determine the weight
and credibility to be given to the testimony of witnesses.25
However, the jury here was forestalled from deliberating on
22
See Neb. Rev. Stat. § 44-2819 (Reissue 2010).
23
Hamilton v. Bares, 267 Neb. 816, 678 N.W.2d 74 (2004).
24
Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008).
25
See Jones v. Meyer, 256 Neb. 947, 594 N.W.2d 610 (1999).
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the evidence by the directed verdict, the propriety of which we
now consider on appeal.
[5] A directed verdict is proper only when reasonable minds
cannot differ and can draw but one conclusion from the evi-
dence, that is, when an issue should be decided as a matter of
law. In reviewing that determination, we give the nonmoving
party the benefit of every controverted fact and all reasonable
inferences from the evidence.26 If there is any evidence which
will sustain a finding for the party against whom the motion is
made, the case may not be decided as a matter of law.27 But at
the same time, we do not allow juries to engage in speculation
or conjecture in determining damages.28
The question becomes whether, giving Mary the benefit
of every controverted fact and all reasonable inferences from
the evidence, there was any evidence upon which the jury
could have based a finding in her favor. Here, the reason-
able inferences from the evidence reflect that Appellees were
negligent in not diagnosing Mary’s cancer in 2009; that, as
a result, the tumor grew from approximately 3.5 centime-
ters in 2009 to 7.1 centimeters in 2010; that the number of
lymph nodes affected increased from approximately 3 to 19;
that the 2010 MRI report stated that the condition of Mary’s
left breast “would likely contraindicate nipple sparing pro-
cedures”; and that Mary experienced anxiety following her
diagnosis. Lastly, Mary further testified regarding pain and
suffering as follows:
Q. . . . Well, have you felt — have you felt bad, any
mental pain or anguish as a result of what you feel hap-
pened to you as a result of having a delay in the diagnosis
of your cancer?
....
26
Scheele v. Rains, supra note 1.
27
See McWhirt v. Heavey, 250 Neb. 536, 550 N.W.2d 327 (1996).
28
See Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807
(2006).
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[Mary]: Yes, I feel a lot of anxiety about that. A lot.
Because the reality is it wasn’t caught in an early stage. It
was an advanced stage. And I suffer from extreme anxiety
and stress and depression from not knowing if I’m going
to live. I don’t know if I’m going to make it. Time will
tell. But I don’t know.
[6,7] By this testimony, Mary stated that she had incurred
mental pain or anguish as a result of the delayed cancer
diagnosis. Whether Mary’s damages for anxiety were directly
related to the delay in diagnosis or a consequence of discov-
ering the cancer would have been a question of fact for the
jury to determine. Although no specific dollar amounts were
attached to her emotional injuries, the amount of damages for
pain, suffering, and emotional distress inherently eludes exact
valuation.29 It is a matter left largely to the discretion of the
fact finder, which saw the witnesses and heard the evidence.30
Considering the jury’s role as the fact finder and the evidence
as a whole, we conclude that the Cohans presented evidence
that could have sustained a finding for Mary on the issue of
damages. Thus, the district court erred in granting Appellees’
motions for directed verdict.
2. Terry’s Claim
Terry claims the district court also erred in granting a
directed verdict on his claim. However, although Terry con-
firmed the evidence presented by Mary, he failed to pre­
sent sufficient evidence supporting his own cause of action.
Therefore, the district court did not err in granting a directed
verdict on his claim.
3. Cross-A ppeals by A ppellees
Appellees’ cross-appeals assign as error the admission
of Dr. Naughton’s testimony. Appellees moved to strike Dr.
Naughton’s testimony because they claimed that only Mary’s
29
Roth v. Wiese, 271 Neb. 750, 716 N.W.2d 419 (2006).
30
Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
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prognosis at the time of trial was relevant and that Nebraska
did not recognize a theory of recovery based upon loss of
chance. The district court, in overruling the motions to strike,
found that Dr. Naughton’s opinion was relevant for the limited
purpose of establishing that early discovery of cancer leads to
a better prognosis.
[8,9] A trial court has the discretion to determine the rel-
evancy and admissibility of evidence, and such determina-
tions will not be disturbed on appeal unless they constitute
an abuse of that discretion.31 A trial court’s ruling in receiv-
ing or excluding an expert’s testimony which is otherwise
relevant will be reversed only when there has been an abuse
of discretion.32
Appellees first argue that the district court should not have
allowed testimony concerning damages which was based upon
a life expectancy or likelihood of recurrence but did not reflect
Mary’s condition at the time of trial. This argument stems
from Dr. Naughton’s testimony that Mary’s risk of recur-
rence had fallen to 30 percent at the time of trial. Basically,
Appellees request that damages be limited to Mary’s condition
at the time of trial. We decline to adopt this theory.
In Nebraska, proven damages which are proximately caused
by a breach of duty are recoverable. We have said that “‘[i]n
an action for damages for personal injuries caused by a wrong-
ful act or omission, the injured person is entitled to recover
full compensation for all damage proximately resulting from
the defendant’s act . . . .’”33 And we have also found the term
“personal injury” to be broad in scope.34
Accordingly, the district court did not err in refusing to
limit Dr. Naughton’s testimony to Mary’s condition solely
at the time of trial. Of course, a party can present evidence
31
Gallner v. Larson, 291 Neb. 205, 865 N.W.2d 95 (2015).
32
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
33
McCall v. Weeks, 183 Neb. 743, 750, 164 N.W.2d 206, 210 (1969).
34
See Gallion v. O’Connor, 242 Neb. 259, 494 N.W.2d 532 (1993).
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reflecting an injured party’s current condition for any relevant
purpose such as to mitigate damages. But the amount of dam-
ages, proximately caused, is an issue for the trier of fact to
assess and weigh.35
Next, Appellees argue that Dr. Naughton’s testimony
should have been excluded because it pertained only to the
loss-of-chance doctrine. We have determined that Nebraska
does not recognize the loss-of-chance doctrine. Therefore, any
evidence offered solely for that purpose would be in error.
But the district court did not err in finding Dr. Naughton’s
testimony relevant for the limited purpose of establishing
that early discovery of cancer leads to a better prognosis.
And within the parameters of the district court’s ruling, Dr.
Naughton’s testimony corroborated other evidence of negli-
gent conduct.
We conclude that Appellees’ cross-appeals lack merit.
However, upon retrial, the district court shall rule on the par-
ties’ motions and objections with due consideration of our
holding on the loss-of-chance doctrine.
VI. CONCLUSION
For the aforementioned reasons, as to Mary’s cause of
action, we conclude that the district court erred in granting
Appellees’ motions for directed verdict and we reverse the
matter for a new trial. However, we affirm the directed verdict
granted as to Terry’s cause of action. We further find no merit
in Appellees’ cross-appeals.
A ffirmed in part, and in part reversed
and remanded for a new trial.
Funke, J., not participating.
35
See Union Ins. Co. v. Bailey, 234 Neb. 257, 450 N.W.2d 661 (1990)
(question of amount of damages to be awarded is solely one for fact
finder).