Bromme

Defendant was decedent Joan Bromme’s physician from 1979 until her death in 1984. In June 1980, Bromme complained of abdominal pain, but defendant did not diagnose its cause. Following her renewed complaints in September 1981, it was determined that Bromme had colon cancer. After Bromme’s death, her husband (plaintiff) brought this wrongful death action against defendant.

Evidence at trial suggested that before June 1981 it was medically probable the cancer, if detected, could have been treated successfully. After that time, successful treatment became medically improbable, i.e., the chance of success was less than 50 percent. At the close of plaintiff’s case-in-chief, the trial court granted defendant’s motion for partial nonsuit which precluded the jury from considering any alleged negligent acts by defendant after June 1981. The trial court reasoned “this is a [wrongful] death case” and “[i]t’s more probable that after June of [1981] the cancer killed her than anything the doctor failed to do.” The jury returned a verdict for defendant on the allegations of negligence through June 1981.

On appeal, plaintiff claims the trial court erred in granting the partial nonsuit…