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Should Nebraska Adopt the Loss of Chance Doctrine in Medical Malpractice Cases?

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The Nebraska Supreme Court took on this complicated question in Cohan v. Medical Imaging Consultants, (297 Neb. 111).

Mary Cohan and Terry Cohan (“Cohans”) brought a medical malpractice action against Medical Imaging Consultants (“MIC”). They alleged that negligent treatment caused Mary’s breast cancer to progress undiagnosed for one year and that her delayed 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 to a jury, the district court granted MIC’s motion for a directed verdict and dismissed the Cohans’ complaint with prejudice. The Cohans have appealed the directed verdict and ask us to adopt the loss-of-chance doctrine.

The loss-of-chance doctrine is applicable in some states, and it allows a plaintiff to obtain damages from a defendant for a heightened risk of death or injury—especially if the plaintiff relied on what the defendant did or did not do. Currently, it is not recognized under Nebraska law. The Cohans asked the Nebraska Supreme Court to take up the question of whether it should be.

After looking at the facts, the Court said that the Cohans would not really benefit from the adoption of the doctrine, as it is all too speculative for a jury to determine the compensability of something that could possibly happen in the future. The Court also pointed out that it 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. The Court rejected their request, saying it did not want to lower the established standard of causation.

While looking at the case, the Court also determined that the lower court was wrong in granting a directed verdict in favor of MIC. What the damages were and why the Cohans suffered them were questions of fact for a jury to determine. The Court said the district court erred in granting MIC’s motions for directed verdict. So, the directed verdict was reversed and the case was remanded.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.

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  1. Jc says:
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    Finally, a State Supreme Court that actually follows the law and does not try and make up new law. If the people of Nebraska want to change malpractice law and allow “Loss of a Chance” well, Nebraska has a legislature and that legislature is there to discuss and enact new laws.
    The Ohio Supreme Court arbitrarily enacted “Loss of a Chance” thru Judicial Fiat in 1996. I got sued under this goofball legal theory and after a decade of judicial confusion, the case against me was dismissed. I became so incensed at this injustice, that I have enlisted the Ohio State Medical Association and we have proposed H.B. 7 to get rid of “Loss of Chance” in Ohio.