Cohan v. Med. Imaging Consultants, P.C.

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Docket Number

No. S-16-145

Attorney(S)

Richard J. Rensch and Sean P. Rensch, of Rensch & Rensch Law, P.C., L.L.O., Omaha, for appellants. David D. Ernst, Omaha, 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, Omaha, and Kate Geyer Johnson, of Lamson, Dugan & Murray, L.L.P., for appellees Bellevue Obstetrics and Gynecology Associates, P.C., et al.

Judges

Per Curiam.

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Smart Summary

Factual and Procedural Background

This opinion addresses the appellees' motions for rehearing concerning the court's prior opinion in Cohan v. Medical Imaging Consultants. The case involves appellants Mary and Terry Cohan against appellees Medical Imaging Consultants, P.C., and others. The court modifies its original opinion related to the admission of expert testimony and denies the motions for rehearing.

Legal Issues Presented

Whether the district court erred in admitting Dr. Naughton's testimony concerning prognosis and loss of chance theory.
Whether Nebraska recognizes a theory of recovery based on loss of chance.

Arguments of the Parties

Appellees' Arguments

Dr. Naughton's testimony should be stricken because only Mary's prognosis at the time of trial is relevant.
Nebraska law does not recognize a cause of action based on loss of chance.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cohan v. Medical Imaging Consultants, 297 Neb. 111, 900 N.W.2d 732 (2017)	Original opinion addressing the issues in this case including expert testimony and loss of chance theory.	The court modifies the original opinion by clarifying the relevance of Dr. Naughton's testimony and denies the motions for rehearing.

Court's Reasoning and Analysis

The court considered the appellees' motions for rehearing and found no basis to overturn its prior ruling. It clarified that the district court properly admitted Dr. Naughton's testimony for the limited purpose of establishing that early discovery of cancer leads to a better prognosis. The court interpreted "prognosis" as relating to the risk of recurrence and the probability of an improved outcome, thereby supporting the relevance of the testimony despite appellees' contention that only the prognosis at the time of trial was pertinent. The court did not accept the appellees' argument that Nebraska law does not recognize loss of chance recovery but limited the testimony's use to prognosis rather than loss of chance as a theory of recovery.

Holding and Implications

Former opinion modified; motions for rehearing overruled.

The court's decision denies the appellees' request to reconsider the admission of expert testimony, thereby affirming the district court's evidentiary ruling. This decision maintains the evidentiary standard applied in the original opinion without establishing new precedent beyond the clarification provided. The direct effect is that Dr. Naughton's testimony remains admissible for the limited purpose described, impacting the evidentiary posture of the case going forward.

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Mary COHAN and Terry Cohan, indi v. dually and as wife and husband, appellants and cross-appellees,

Per Curiam.

Richard J. Rensch and Sean P. Rensch, of Rensch & Rensch Law, P.C., L.L.O., Omaha, for appellants.

David D. Ernst, Omaha, 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, Omaha, 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.

SUPPLEMENTAL OPINION

Per Curiam.We consider the appellees' motions for rehearing concerning our opinion in Cohan v. Medical Imaging Consultants . We overrule the motions, but we modify the original opinion as follows:

Cohan v. Medical Imaging Consultants, 297 Neb. 111, 900 N.W.2d 732 (2017).

In the section of the opinion designated "3. CROSS-APPEALS BY APPELLEES ," we add a sentence at the end of the first paragraph, such that the paragraph reads as follows:

Id. at 129-130, 900 N.W.2d at 744–45.
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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 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. We understand the district court to have used "prognosis" to refer to the risk of recurrence and the probability of an improved outcome.

The remainder of the opinion shall remain unmodified.

FORMER OPINION MODIFIED. MOTIONS FOR REHEARING OVERRULED.

Funke, J., not participating.