State Supreme Court Enters Mixed Decision in Medical Malpractice Lawsuit on the Issue of Loss of Chance Doctrine

Mary and Terry Cohan filed a medical malpractice lawsuit against Medical Imaging Consultants claiming that the company and its medical providers were negligent in the treatment that caused Mary’s breast cancer to progress undiagnosed for one year. It was alleged that the delay in diagnosis led to her suffering damages from a shortened life expectancy and physical and mental suffering.

The medical defendants moved for a directed verdict at the end of the Cohan case at the jury trial on the basis that plaintiffs failed to make a prima facie case of causation and damages against the defendant. The elements of a medical negligence claim, like all negligence claims are: duty, breach of duty, causation and damages.

The district court judge granted the defendants’ motion, concluding that there was no sufficient proof of damage or causation other than the loss of chance of a lower rate of non-recurrence of cancer, which did not constitute a proper measure of damage at the time.

The state Supreme Court affirmed in part and reversed in part and remanded the case for a new trial, holding that (1) this court declines to adopt the loss of chance doctrine; but (2) the plaintiffs presented evidence that could have sustained a finding for Mary on the issue of damages under the traditional medical malpractice standard.

In Illinois, the loss of chance doctrine applies even if the plaintiff has a chance of recovery that is less than 50% of survival or recovery prior to the occurrence of a negligent act. That law derives from the Illinois Supreme Court case of Holton v. Memorial Hospital, 176 Ill.2d 95 (1997).

The Holton case stands for the proposition, at least in Illinois, that in cases claiming injury to an individual that arises because of medical malpractice, the application is made in which the patient is injured and the treatment is alleged to have (1) damaged or decreased the patient’s chance of survival or recovery; or (2) either lessened the effectiveness of a patient’s treatment or subjected the patient to an increased risk of harm.

The Cohans had asked the state Supreme Court to adopt the loss of chance doctrine that other states, including Illinois, have followed. However, the high court declined to adopt the doctrine. Accordingly, because the court found that Mary’s cause of action was provable under the traditional medical malpractice standard, the court reversed and remanded the case for a new trial so that a jury could determine whether Mary in fact could meet her burden of proving medical negligence that caused her permanent injuries.

Cohan v. Medical Imaging Consultants, Inc., No. 297 Neb. 111, Nebraska Supreme Court (July 7, 2017).

Kreisman Law Offices has been successfully handling delayed diagnosis of cancer cases, misdiagnosis of illness and disease lawsuits stemming from medical malpractice, birth injury lawsuits, brain injury lawsuits and hospital negligence cases for individuals, families and the loved ones who have been injured, harmed or died as a result of the carelessness and negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Elmwood Park, Maywood, Hoffman Estates, Morton Grove, Niles, Skokie, Schaumburg, Schiller Park, Tinley Park, Chicago (Logan Square, Hermosa, Lincoln Park, Near North Side, Near West Side, East Garfield Park, Bridgeport, McKinley Park, Hyde Park, South Chicago, Ashburn, Clearing, Chicago Lawn), Evanston, Wilmette, Harwood Heights, South Barrington, Blue Island, South Holland and Alsip, Ill.