MARY COHAN AND TERRY COHAN, INDIVIDUALLY AND AS WIFE AND HUSBAND, APPELLANTS AND CROSS-APPELLEES,
MEDICAL IMAGING CONSULTANTS, PC, ET AL., APPELLEES AND CROSS-APPELLANTS.
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.
Physician and Patient: Negligence. Nebraska
does not recognize the loss-of-chance doctrine.
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.
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.
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.
Damages. The amount of damages for pain,
suffering, and emotional distress inherently eludes exact
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.
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
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.
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.
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
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.
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
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.
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.
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.
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
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.
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."
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.
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.
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.
MRI report received into evidence stated that the condition
of Mary's left breast "would likely contraindicate
nipple sparing procedures."
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.
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,  as "evidence
that early intervention would more likely than not have led
to an improved outcome."
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.
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."
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."
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."
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.
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
As far as the directed verdict on causation and damages are
concerned . . . I'm satisfied that there is sufficient
evidence of negligence that that ...