Nebraska Supreme Court Orders New Trial After Radiologist Missed Growing Breast Tumor for a Year

In October 2009, Mary Cohan attended her annual physical and told her physician's assistant she had lumps in her left breast and was concerned about her left nipple. Shortly after, she underwent a screening mammogram at Medical Imaging Consultants in Omaha. Radiologist Dr. Robert Faulk read the film as normal, with no evidence of malignancy.

A year later, in October 2010, a follow-up mammogram flagged an abnormality. Additional testing confirmed a cancerous tumor measuring 7.1 centimeters in her left breast, with the cancer having spread to 19 of her 24 sampled lymph nodes. Mary underwent chemotherapy, radiation, a double mastectomy, and reconstructive surgery.

Richard J. Rensch and Sean P. Rensch filed suit on behalf of Mary and her husband Terry against Medical Imaging Consultants, Dr. Faulk, Bellevue Obstetrics and Gynecology Associates, Dr. Michael Woods, and physician's assistant Michelle Berlin. The Cohans' experts testified that the 2009 mammogram showed abnormalities that should have triggered further workup. A second expert estimated the tumor would have measured only 3.5 centimeters in 2009 and reached just three lymph nodes had it been caught then, and that the delayed diagnosis pushed Mary's 10-year recurrence risk from roughly 30 percent to at least 75 percent.

At the close of the Cohans' case, Douglas County District Court granted directed verdicts for all defendants, finding the evidence legally insufficient to go to a jury. The court rejected the case under Nebraska's traditional causation standard, declining to apply the loss-of-chance doctrine the plaintiffs had also argued.

The Nebraska Supreme Court agreed that the loss-of-chance doctrine did not apply in Nebraska, but found the trial court had gone too far in pulling Mary's claim from the jury entirely. In a July 7, 2017 opinion, the court held that the Cohans had presented sufficient evidence of negligence and damages under the traditional standard to warrant jury consideration. The court reversed the directed verdict on Mary's claim and remanded for a new trial. It affirmed the directed verdict on Terry's loss-of-consortium claim for lack of sufficient supporting evidence.

The case is reported at 297 Neb. 111, 900 N.W.2d 732 (2017).