dissenting.
In the first instance, I disagree with the majority’s statement that this court has not recognized loss of chance as an element of damages in either tort or contract.
In Washington v. American Community Stores Corp., 196 Neb. 624, 244 N.W.2d 286 (1976), a 24-year-old parole officer involved in a collision brought a personal injury action, claiming that his injuries prevented him from pursuing a wrestling career. While he had successfully competed in wrestling competitions at the high school and college levels and was characterized as a prime candidate for the U.S. Olympic team, there was no evidence that he would have been an Olympic wrestler or that he had been promised a job as a wrestling coach. This court nonetheless rejected the defendant’s argument that the claim of damages was speculative and conjectural, as it rested on uncertain future possibilities and uncertain future happenings, and permitted the plaintiff to recover for the loss of earning capacity as a professional wrestler or coach.
Thus, it seems to me that wittingly or unwittingly, wisely or unwisely, this court has recognized loss of chance as an element of tort damages. Perhaps the majority opinion has, knowingly or otherwise, silently overruled Washington.
In any event, as I view it, this case does not turn on the loss of a chance to bear children. Share Health Plan of Nebraska, Inc., was obligated under its contract “to arrange to provide” Nancy Steineke “medical, surgical and hospital services and benefits,” including “care for a Medical Emergency furnished by or under the order of a PLAN PHYSICIAN,” which order could be “made retroactively if justified by the Medical Emergency.” The contract defined medical emergency as
the sudden onset of an illness or an accidental bodily injury subject to the following additional requirements.
(a) The condition so treated must have required treatment of such immediate nature that the patient’s life or health might have been jeopardized had he been taken to a PLAN PHYSICIAN.
(b) The patient must have been in shock, or have been unconscious or incapable of rational, independent *382judgment concerning the medical treatment or services rendered.
Steineke alleged that Share Health Plan breached its contract when its representative refused to authorize the medical services at Archbishop Bergan Mercy Hospital when Share Health Plan knew or should have known that such services were covered as a medical emergency. Furthermore, Steineke alleged that as a direct and proximate result, she sustained mental and physical pain and suffering and lost as well the ability to conceive and bear children in the future.
Although those allegations sound in contract, as the majority concludes, they also imply that Share Health Plan failed to act reasonably under the circumstances, thereby also stating a cause of action in tort. Lawyers Title Ins. Corp. v. Hoffman, 245 Neb. 507, 513 N.W.2d 521 (1994) (negligent failure to fulfill common-law duty to perform agreed-upon activity with care, skill, reasonable expediency, and faithfulness may be a tort as well as breach of contract).
The record reveals that at the time of the ultrasonic examination at Bergan Mercy, there was no free fluid in Steineke’s “perineal cavity.” However, by the time surgery was performed at the University of Nebraska Medical Center, there was blood in her abdomen. In the opinion of Dr. Robert Luby, the “implantation side of [Steineke’s fallopian] tube” started bleeding between the time of the ultrasonic test at Bergan Mercy and the surgery at the medical center.
At this point in the proceedings and under the present state of the record, it must be inferred that the bleeding might have jeopardized Steineke’s health or life and thus brought her condition within the definition of a medical emergency. See Barta v. Kindschuh, ante p. 208, 518 N.W.2d 98 (1994) (on appellate review, party against whom summary judgment granted given benefit of all reasonable inferences deducible from evidence).
While it appears that the majority takes some comfort from the fact that Steineke consented to the surgery performed at the medical center, the fact is that whatever import the consent form she signed might have as between the medical center and her, it has none as between Share Health Plan and her. Thus, *383under the circumstances, I would hold Share Health Plan liable for all the consequences of its inappropriate insistence that Steineke be transferred to the medical center, including tort damages.
In Wickline v. State, 192 Cal. App. 3d 1630, 228 Cal. Rptr. 661 (1986), republished239 Cal. Rptr. 810, a Medi-Cal recipient sued the State of California for negligent discontinuance of her Medi-Cal eligibility. The plaintiff’s physician sought to extend her hospitalization to 8 days. However, a Medi-Cal utilization reviewer authorized only 4 days. Upon returning home, the plaintiff suffered complications that later required amputation of her leg. Although the state was not held liable due to the physician’s failure to file another request for extension of hospital stay, the court left the door open for claims against third-party payors who make medically inappropriate decisions.
The patient who requires treatment and who is harmed when care which should have been provided is not provided should recover for the injuries suffered from all those responsible for the deprivation of such care, including, when appropriate, health care payors. Third party payors of health care services can be held legally accountable when medically inappropriate decisions result from defects in the design or implementation of cost containment mechanisms____
Wickline, 192 Cal. App. 3d at 1645, 239 Cal. Rptr. at 819.
Private third-party payors are potentially liable as well. In Wilson v. Blue Cross of Southern Cal., 222 Cal. App. 3d 660, 271 Cal. Rptr. 876 (1990), a private insurer refused to authorize hospitalization for a patient suffering from depression, chemical dependency, and anorexia. The patient subsequently committed suicide. The California Court of Appeal reversed the trial court’s summary judgment in favor of the defendants and held that there was substantial evidence that the insurer’s decision not to approve hospitalization was a substantial factor in bringing about the patient’s demise.
Accordingly, I would reverse the judgment of the district court and remand the cause for further proceedings.
Lanphier, J., joins in this dissent.