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Cohan v. Medical Imaging Consultants, PC

Supreme Court of Nebraska

July 7, 2017


          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.

          [297 Neb. 112] 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 determinations 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, PC, 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, PC, 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, PC, et al.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          Kelch, J.


         Mary Cohan and Terry Cohan brought a medical malpractice action against Medical Imaging Consultants, P.C.; Robert Faulk, M.D.; Bellevue Obstetrics and Gynecology Associates, PC; Michael Woods, M.D.; and Michelle Berlin, a physician'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 [297 Neb. 113] 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 malpractice 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.


         In accordance with our standard of review, the following facts give the nonmoving party the benefit of every controverted fact and all reasonable inferences from the evidence.[1]

         On August 8, 2008, Mary underwent a diagnostic examination 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 [297 Neb. 114] Imaging Consultants. Dr. Faulk read the mammogram as normal, with no evidence of malignancy.

         A year later, in October 2010, Mary's annual mammogram identified an abnormality in her left breast. Further testing revealed a cancerous tumor. As a result, Mary underwent chemotherapy and radiation; a double mastectomy, during 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 complaint against Appellees. They alleged that Appellees were negligent in failing to detect abnormalities in Mary's examinations 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 outcome 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 testified 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.

          [297 Neb. 115] Mary testified about the pain, fatigue, and other negative experiences incident to her surgery, chemotherapy, and radiation treatments. She stated that at the time of trial, she still had pain from the mastectomy. Mary described herself as "disfigured" 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, particularly 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 abnormality 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 further 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 [297 Neb. 116] between the 2009 mammogram and the ultimate cancer diagnosis 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 surgery 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 [297 Neb. 117] 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 progression 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 testimony 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 recurrence. He affirmed that risk of recurrence generally meant cancer manifesting itself distantly, past the nodes.

         Dr. Naughton testified that the risk of recurrence "essentially starts at day zero from diagnosis and is continuous at a [297 Neb. 118] relatively stable level for the first ten years from diagnosis." He further explained that "roughly half the estimated recurrences happen in the first five years" and that the risk of recurrence 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, consequently, 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.

          [297 Neb. 119] 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 damages 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 ...

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