The Nebraska Supreme Court rejected the loss-of-chance doctrine in a Nebraska medical malpractice case where the plaintiff alleged that the failure to diagnose her breast cancer for one year increased the probability that she would suffer a recurrence of her breast cancer in the future.

The Nebraska Supreme Court stated in its July 7, 2017 opinion that in some instances, the application 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.

The plaintiffs (wife and husband) alleged in their Nebraska medical malpractice complaint that on August 8, 2008, the wife underwent a diagnostic examination at a hospital in 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.

On October 12, 2009, the plaintiff attended her annual physical examination with a physician’s assistant (“PA”) in her OB/GYN’s office. The plaintiff told the PA that she had lumps in her left breast and that she was concerned about the appearance of her left nipple. On October 21, 2009, the plaintiff underwent a screening mammogram. A doctor read the mammogram as normal, with no evidence of malignancy.

In October 2010, the plaintiff’s annual mammogram identified an abnormality in her left breast. Further testing revealed a cancerous tumor. As a result, the plaintiff underwent chemotherapy and radiation; a double mastectomy, during which surgeons also removed axillary lymph nodes; and reconstructive surgery. The cancerous tumor measured 7.1 centimeters in diameter. Examination of the lymph nodes showed that the tumor had metastasized to 19 of the 24 lymph nodes removed.

On December 4, 2015, the plaintiffs filed their amended Nebraska medical malpractice complaint in which they alleged that the medical malpractice defendants were negligent in failing to detect abnormalities in the plaintiff’s examinations in 2009 that would have led to the discovery of breast cancer prior to the discovery of cancer in 2010. They alleged that the plaintiff was prevented from being afforded a better outcome because of the year-long delay in diagnosing the cancer and that the plaintiff further sustained damages from a shortened life expectancy and physical and mental suffering.

The plaintiffs presented deposition testimony from one of their experts that had the plaintiff undergone diagnostic imaging of her breast in 2009, more likely than not, the breast cancer would have been found, and that the tumor grew in the interim between the 2009 mammogram and the ultimate cancer diagnosis in 2010. Another of the plaintiffs’ medical experts testified that had the plaintiff’s cancer been discovered in October 2009, her 10-year risk of recurrence would have been approximately 30 percent. The expert estimated that because the plaintiff 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.

The plaintiffs’ experts’ opinions were that the defendants were negligent in not locating the tumor in 2009 and that such negligence increased the plaintiff’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.

The defendants filed motions for directed verdict on the issues of proximate cause and damages. The trial court granted a directed verdict on the basis that the plaintiff had failed to offer sufficient proof of damages or causation other than a loss of chance of a lower rate of non-recurrence.

Loss Of Chance Doctrine

The Nebraska Supreme Court stated that the loss-of-chance doctrine is based upon the Restatement (Second) of Torts, which provides: “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.”

In the medical malpractice context, the loss of chance doctrine has been applied 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. Several U.S. states have adopted some version of the loss-of-chance doctrine in medical malpractice claims.

In Massachusetts, the 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.

In Texas, the real harm in any case is whether the patient ultimately suffers a recurrence or death: the lost chance cannot be proven unless and until the ultimate harm occurs (“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”).

Turning to the case it was deciding, the Nebraska Supreme Court stated, “Were we to apply the loss-of-chance doctrine in the instant case, with [the plaintiff] 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.” Here, the jury would be left to speculate on possible harm in the future, since there was no evidence of [the plaintiff’s] chance of survival even if the cancer returned. The [plaintiffs’] expert only opined regarding the chance of recurrence, which, at the time of trial, was 30 percent.”

The Nebraska Supreme Court stated: “although we are sympathetic to the [plaintiffs’] situation, adoption of the loss-of-chance doctrine in this case 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.”

The Nebraska Supreme Court held: “After considering the [plaintiffs’] arguments, we conclude that this court has not adopted the loss-of-chance doctrine, and we shall not adopt it at this time.”

Source Cohan v. Medical Imaging Consultants, 297 Neb. 111

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