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COHAN v. MEDICAL IMAGING CONSULTANTS

Cite as 297 Neb. 111

Mary 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/08/2017 01:11 AM CDT
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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, 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.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

and Kelch, JJ.

Kelch, J.

I. INTRODUCTION

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, 

P.C.; 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 
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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.

II. BACKGROUND

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 

1 See Scheele v. Rains, 292 Neb. 974, 874 N.W.2d 867 (2016).
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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.
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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 
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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 
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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-ofchance 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 

2 Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008).
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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.
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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 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 causation 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 ruling 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) dismissing 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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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. Mary’s Claim

The Cohans approach this appeal from two different perspectives. They claim that they have met the traditional burden 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 recurrence, 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 sufficient 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 lossof-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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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 functions 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 completely redressed or is denied, depending on the likelihood, 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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. . . [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 evidentiary 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 determining 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 causation under traditional principles. . . .

. . . .

. . . Other states, typically relying on the Second 

Restatement of Torts § 323(a), allow the case to be submitted 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, progress 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 medical 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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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 recurrence 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 possibility 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 conduct, we choose not to lower the well-established standard 

of causation.

Lastly, as noted by the court in Kramer, how does an appellate 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 negligently 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 dissenting 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 overruled 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 specifically 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-ofchance 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 conditions 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 entitled to recover full compensation for all damage proximately 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 apportioning 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 application of the loss-of-chance doctrine, with its relaxed burden 

of proof, could prove contradictory to the Nebraska HospitalMedical 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 sufficient 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 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.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 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.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 reasonable 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 centimeters 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 procedures”; 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 happened 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 discovering 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 confirmed the evidence presented by Mary, he failed to present 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-Appeals by Appellees

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 relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute 

an abuse of that discretion.31 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.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 recurrence 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 wrongful 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 damages, 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 negligent conduct.

We conclude that Appellees’ cross-appeals lack merit. 

However, upon retrial, the district court shall rule on the parties’ 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.

 Affirmed 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).