Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED JULY 31, 2010
STATE OF MICHIGAN
SUPREME COURT
RAYMOND O’NEAL,
Plaintiff-Appellant,
v No. 138180
ST. JOHN HOSPITAL & MEDICAL
CENTER, RALPH DiLISIO M.D. and
EFSTATHIOS TAPAZOGLOU, M.D.,
Defendant-Appellees.
BEFORE THE ENTIRE BENCH
HATHAWAY, J.
This case addresses the burden of proof necessary to establish proximate causation
in a traditional medical malpractice action. At issue is whether the Court of Appeals
properly reversed the trial court’s denial of summary disposition. The trial court ruled
that plaintiff had established a question of fact on the issue of proximate causation
sufficient to withstand a motion for summary disposition. The Court of Appeals
reversed. It treated plaintiff’s claim as a loss-of-opportunity claim instead of a traditional
medical malpractice claim and held that plaintiff did not raise a genuine issue of fact, as
required by Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002),
because plaintiff could not prove that receiving the alleged appropriate treatment would
have decreased his risk of stroke by greater than 50 percentage points. We disagree with
the Court of Appeals’ analysis and conclusion.
We hold that the Court of Appeals erred by relying on Fulton and determining that
this is a loss-of-opportunity case controlled by both the first and second sentences
of MCL 600.2912a(2), and instead hold that this case presents a claim for traditional
medical malpractice controlled only by the first sentence of § 2912a(2). Further, we
conclude that plaintiff established a question of fact on the issue of proximate causation
because plaintiff’s experts opined that defendants’ negligence more probably than not
was the proximate cause of plaintiff’s injuries. Finally, we hold that Fulton did not
correctly set forth the burden of proof necessary to establish proximate causation for
traditional medical malpractice cases as set forth in § 2912a(2). Therefore, we overrule
Fulton to the extent that it has led courts to improperly designate what should be
traditional medical malpractice claims as loss-of-opportunity claims and has improperly
transformed the burden of proof in a traditional malpractice case from a proximate cause
to the proximate cause.
Accordingly, we reverse the judgment of the Court of Appeals and remand this
matter to the Court of Appeals for consideration of the issue not decided on appeal in that
court.
2
I. FACTS AND PROCEEDINGS
This case involves allegations of negligence in medical care. Plaintiff had an
illness known as sickle cell anemia. Plaintiff developed acute chest syndrome (ACS),
which is a known complication of sickle cell anemia. Plaintiff claims that his ACS was
misdiagnosed as pneumonia and as a consequence he did not receive the correct
treatment. Plaintiff’s experts opined that ACS requires treatment with an aggressive
blood transfusion or an exchange transfusion, either of which needs to be given on a
timely basis. While plaintiff ultimately received a transfusion, his experts opined that it
was given too late and as a consequence, plaintiff suffered a disabling stroke. Plaintiff
alleged that defendants’ failure to provide a timely transfusion violated the standard of
care and that defendants’ negligence was a proximate cause of his disabling stroke.
Plaintiff’s complaint pled a traditional malpractice claim and did not plead a claim for
lost opportunity.
In support of his position, plaintiff offered two expert hematologists who testified
that defendants’ violations of the standard of care more probably than not caused
plaintiff’s injuries. Plaintiff’s third hematology expert explained his opinion in statistical
terms and testified that a patient with ACS has a 10 to 20 percent chance of developing a
stroke. He further testified that with a timely exchange transfusion, the risk of stroke is
reduced to less than 5 to 10 percent.
Defendants brought a motion for summary disposition challenging the sufficiency
of plaintiff’s expert testimony on the issue of proximate causation. Even though
plaintiff’s complaint pled only traditional malpractice, defendants’ motion made no
3
distinction between the proof required for proximate causation in a traditional
malpractice claim and the burden required for a claim based on loss of opportunity.
Instead, defendants argued that plaintiff’s case was controlled by both the first and
second sentences of MCL 600.2912a(2), which requires that the plaintiff prove “that he
or she suffered an injury that more probably than not was proximately caused by the
negligence of the defendant or defendants” and that “the plaintiff cannot recover for loss
of an opportunity to survive or an opportunity to achieve a better result unless the
opportunity was greater than 50%.”
Defendants argued that a reduction in the risk of stroke from 10 to 20 percent to
less than 5 to 10 percent amounted to at best a 20 percentage point differential,1 which
would be insufficient to meet the burden of proof on proximate causation. Defendants
relied on Fulton to support their position that plaintiff must comply with this percentage
point differential theory. Plaintiff countered that defendants’ statistical portrayal of these
numbers was mathematically inaccurate because his experts’ testimony supported a
finding that his injuries were more probably than not proximately caused by defendants’
negligence. The trial court agreed with plaintiff. The trial court denied defendants’
1
The Court of Appeals reasoned: “This number is the difference between the
highest chance plaintiff had of developing a stroke without proper treatment (i.e., 20
percent) and the lowest chance of developing a stroke with proper treatment (i.e., less
than five percent, or in the light most favorable to plaintiff, zero percent)”. O’Neal v St
John Hosp & Med Ctr, unpublished opinion per curiam of the Court of Appeals, issued
November 4, 2008 (Docket Nos. 277317 and 277318), p 5 n 7.
4
motion, ruling that plaintiff had presented sufficient testimony to establish a question of
fact on proximate causation.
The Court of Appeals based its decision entirely on Fulton and reversed the trial
court in an unpublished opinion per curiam, holding that this case presented a claim for a
loss of opportunity and that plaintiff had not met his burden of proof under MCL
600.2912a(2).2 The Court of Appeals reasoned that plaintiff was bound by the Fulton
analysis and that a percentage point differential applied to this case.3 The Court opined:
In asserting that defendants’ negligence resulted in a stroke, plaintiff
essentially argues that had defendants ordered a transfusion sooner, plaintiff
would have avoided a stroke. Thus, to say defendants’ failure to apply
proper treatment caused the stroke is to say that this failure deprived
plaintiff a greater opportunity to avoid the stroke. Consequently, plaintiff’s
claim amounts to one of lost opportunity to achieve a better result, and §
2912a(2) is applicable.
In Fulton, this Court set forth the formula by which to calculate
whether the opportunity to achieve a better result was greater than 50
percent – specifically, the Court must “subtract[] the plaintiff's opportunity
to survive after the defendant’s alleged malpractice from the initial
opportunity to survive without the malpractice.” Ensink [v Mecosta Co Gen
Hosp, 262 Mich App 518, 531; 687 NW2d 143 (2004)], supra at 531.[4]
We granted leave to review this matter, asking the parties to brief:
(1) whether the requirements set forth in the second sentence of
MCL 600.2912a(2) apply in this case; (2) if not, whether the plaintiff
presented sufficient evidence to create a genuine issue of fact with regard to
whether the defendants’ conduct proximately caused his injury or (3) if so,
whether Fulton v William Beaumont Hosp, 253 Mich App 70 (2002), was
2
Id. at 4.
3
Id. at 4-5.
4
Id. at 4.
5
correctly decided, or whether a different approach is required to correctly
implement the second sentence of § 2912a(2).[5]
II. STANDARD OF REVIEW
This case involves review of a trial court’s decision on a motion for summary
disposition which this Court reviews de novo.6 The issue also involves questions of
statutory interpretation. Statutory interpretation is a question of law, which this Court
also reviews de novo.7
III. ANALYSIS
At issue is whether the Court of Appeals properly reversed the trial court’s denial
of summary disposition on the issue of proximate causation. In order to answer this
question we must review MCL 600.2912a.
MCL 600.2912a provides:
(1) Subject to subsection (2), in an action alleging malpractice, the
plaintiff has the burden of proving that in light of the state of the art
existing at the time of the alleged malpractice:
(a) The defendant, if a general practitioner, failed to provide the
plaintiff the recognized standard of acceptable professional practice or care
in the community in which the defendant practices or in a similar
community, and that as a proximate result of the defendant failing to
provide that standard, the plaintiff suffered an injury.
5
O’Neal v St John Hosp & Med Ctr, 485 Mich 901 (2009).
6
Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000).
7
In re Investigation of March 1999 Riots in East Lansing), 463 Mich 378, 383;
617 NW2d 310 (2000).
6
(b) The defendant, if a specialist, failed to provide the recognized
standard of practice or care within that specialty as reasonably applied in
light of the facilities available in the community or other facilities
reasonably available under the circumstances, and as a proximate result of
the defendant failing to provide that standard, the plaintiff suffered an
injury.
(2) In an action alleging medical malpractice, the plaintiff has the
burden of proving that he or she suffered an injury that more probably than
not was proximately caused by the negligence of the defendant or
defendants. In an action alleging medical malpractice, the plaintiff cannot
recover for loss of an opportunity to survive or an opportunity to achieve a
better result unless the opportunity was greater than 50%.
This statute, which governs the burden of proof in medical malpractice cases, was
originally added to the Revised Judicature Act in 1977. It has been amended on several
occasions, with the most recent amendment in 1993 adding subsection (2), which is at
issue in this case. Subsection (2) contains two sentences. It is undisputed that the first
sentence, which repeats the burden of proof as articulated in subsections (1)(a) and (b),
merely reiterates the longstanding rule requiring a plaintiff to prove “that he or she
suffered an injury that more probably than not was proximately caused by the negligence
of the defendant or defendants.” MCL 600.2912a(2).
The second sentence of § 2912a(2) addresses a subcategory of injuries in medical
malpractice litigation governed by the loss-of-opportunity doctrine. The Legislature did
not define the phrase “loss of an opportunity to survive or an opportunity to achieve a
better result.” However, while not defined in the statute, the doctrine was initially
7
recognized and defined in Michigan in Falcon v Mem Hosp, 436 Mich 443; 462 NW2d
44 (1990).8
It is generally accepted that the 1993 amendment to § 2912a was adopted in a
direct reaction to Falcon, meaning that it repudiated Falcon’s reduced proximate
causation theory.9 Thus, it is generally accepted that in adopting this amendment, the
Legislature intended to limit medical malpractice claims to the pre-Falcon state of the
law: if it was more probable than not that the plaintiff would have died even with the best
of treatment, a claim for medical malpractice is precluded.10
We next turn to the correct interpretation of both sentences of § 2912a(2) and their
applicability to the case before us. In examining the first line of § 2912a(2), we are
guided by the principle that nothing in § 2912a(2) has changed the burden of proof for
traditional medical malpractice claims. The language of the first line of subsection (2) is
clear: “in an action alleging medical malpractice, the plaintiff has the burden of proving
that he or she suffered an injury that more probably than not was proximately caused by
8
Falcon held that in a wrongful death case a plaintiff could bring a claim for a
decedent’s loss of opportunity to survive even if he or she did not meet the traditional
proximate causation standard. Falcon reasoned that when the decedent suffered a
substantial reduction in the loss of opportunity to survive—in that case 37.5 percent—
even though the plaintiff could not maintain a traditional malpractice claim for the death
itself because the plaintiff could not establish causation, she could bring a claim for loss
of opportunity to survive. Falcon also stated that the doctrine applied to wrongful death
claims and left the question of whether the doctrine applied to lesser injuries to another
day. 436 Mich at 460-462, 469-470 (opinion by LEVIN, J.).
9
Stone v Willaimson, 482 Mich 144, 169; 753 NW2d 106 (2008).
10
Nothing in our opinion today alters or changes that premise.
8
the negligence of the defendant or defendants.” This language reiterates the language of
the previous subsections and merely restates the well-accepted, well-established historical
rule for proximate causation.11 As the meaning of this sentence is well-established, no
further statutory construction is necessary.
The proper interpretation of proximate causation in a negligence action is well-
settled in Michigan. In order to be a proximate cause, the negligent conduct must have
been a cause of the plaintiff’s injury and the plaintiff’s injury must have been a natural
and probable result of the negligent conduct. These two prongs are respectively
described as “cause-in-fact” and “legal causation.” See Skinner v Square D Co, 445
Mich 153, 162-163; 516 NW2d 475 (1994); Sutter v Biggs, 377 Mich 80; 139 NW2d 684
(1966); Glinski v Szylling, 358 Mich 182; 99 NW2d 637 (1959). While legal causation
relates to the foreseeability of the consequences of the defendant’s conduct, the cause-in-
fact prong “generally requires showing that ‘but for’ the defendant’s actions, the
plaintiff’s injury would not have occurred.” Skinner, 455 Mich at 163. It is equally well-
settled that proximate causation in a malpractice claim is treated no differently than in an
ordinary negligence claim, and it is well-established that there can be more than one
proximate cause contributing to an injury. Brisboy v Fibreboard Corp, 429 Mich 540;
418 NW2d 650 (1988); Barringer v Arnold, 358 Mich 594; 101 NW2d 365 (1960);
Gleason v Hanafin, 308 Mich 31; 13 NW2d 196 (1944). Finally, it is well-established
11
Kirby v Larson, 400 Mich 585, 600-607; 256 NW2d 400 (1977)(opinion by
WILLIAMS, J.).
9
that the proper standard for proximate causation in a negligence action is that the
negligence must be “a proximate cause” not “the proximate cause.” Kirby v Larson, 400
Mich 585; 256 NW2d 400 (1977). Thus, the burden of proof for proximate causation in
traditional medical malpractice cases is analyzed according to its historical common law
definitions and the analysis is the same as in any other ordinary negligence claim.
Nothing in this opinion changes or alters these well-settled principles.12
We next consider whether the Court of Appeals erred by relying on Fulton and
applying the second sentence of § 2912a(2) to the present case. The second sentence of
§ 2912a(2) provides “In an action alleging medical malpractice, the plaintiff cannot
recover for loss of an opportunity to survive or an opportunity to achieve a better result
unless the opportunity was greater than 50%.” Since the statute was amended in 1993,
litigants and the courts have debated the meaning of this second sentence.13 While the
12
This is true despite the contrary statements in Justice YOUNG’s dissent. The
comments of the dissent amount to nothing more than another intemperate outburst of
inappropriate accusations and illogical assertions. While the dissent decries confusion,
the only apparent confusion in this matter lies in the dissent itself, which lacks sound
analytical reasoning and even a basic understanding of the law of proximate causation.
The dissent, if followed to its logical conclusion, would allow recourse for the negligent
actions of medical providers only in those instances in which one provider’s conduct is at
issue and only when no pre-existing medical condition exists. Such an interpretation is
not supported by any case law or the statute itself.
13
The opinions in Stone illustrate this point. The debate has centered on such
questions as whether the Legislature intended this sentence to restore the law to its pre-
Falcon state, meaning that loss-of-opportunity claims are not recognized at all, or
whether the Legislature’s choice of language reflected intent to recognize such claims but
limit their availability. Questions have also arisen about whether the last sentence of
§ 2912a(2) applies to all medical malpractice cases, including traditional ones, or only
those that are presented as loss-of-opportunity claims.
10
debate over the meaning of the second sentence demonstrates that significant questions
surround loss-of-opportunity cases, it is clear from the plain language of the statute that
the second sentence is intended to apply to loss-of-opportunity cases. Today we address
whether the second sentence of § 2912a(2) also applies to traditional malpractice cases
and we unequivocally hold that it does not. Because the Court of Appeals in this case
relied on Fulton, which erroneously applied the second sentence to a traditional
malpractice case, we review Fulton and determine what, if any, continuing validity it has.
Fulton involved a claim for the failure to timely diagnose cervical cancer. The
plaintiff, the personal representative of the decedent’s estate, alleged that if decedent’s
cancer had been diagnosed during her pregnancy, she would have had treatment options
available that could have saved her life. The theory was that the decedent was not
diagnosed until her cancer was untreatable and, as a consequence, she died. The
plaintiff’s expert’s testimony on proximate causation was described by the Court of
Appeals as follows:
Defendants moved for summary disposition under MCR
2.116(C)(10), arguing that plaintiff could not show that their negligence
was the cause of Fulton's death. In response, plaintiff submitted an
affidavit from Dr. Taylor, opining that if Fulton's cancer had been
diagnosed while she was pregnant and if she had been treated after her child
was delivered, she would have had an eighty-five percent chance to survive.
Dr. Taylor opined that when Fulton was actually diagnosed with cancer, her
opportunity to survive had decreased to sixty to sixty-five percent.
Therefore, according to Dr. Taylor, Fulton's opportunity to survive the
cancer decreased by twenty to twenty-five percent because of defendants'
malpractice. In reply, defendants argued that Dr. Taylor's affidavit was
improper because it contradicted his deposition testimony and that, in any
11
event, this affidavit was not enough to create a question of fact under MCL
600.2912a(2).[14]
Fulton opined that because the decedent went from an 85 percent pre-malpractice
chance of survival to a 60-65 percent post-malpractice chance of survival, she “suffered a
loss of a twenty to twenty-five percent chance of survival.”15 Fulton determined that a
percentage point differential subtraction analysis was required by the statute. As
demonstrated by the Fulton analysis, the conclusion is reached by a simplistic subtraction
formula. Fulton subtracted the statistical likelihood of a better outcome without
treatment from the statistical likelihood of a better outcome with treatment to determine if
the resulting number is greater than 50.
Fulton’s simplistic subtraction formula is not an accurate way to determine
whether a defendant’s malpractice is a proximate cause of the injury. Fulton’s analysis
was erroneous because it misconstrued proximate causation as it applies to a traditional
malpractice case. Under the Fulton subtraction formula it is mathematically impossible
for there to be more than one proximate cause. Thus, in creating and applying this
simplistic formula, Fulton fundamentally altered plaintiff’s burden of proof. Fulton
transformed the burden of proof in traditional malpractice cases from a proximate cause
to the proximate cause because it allows for only one proximate cause in any case. This
proposition is in error because it has no basis in statute or common law and it is
inconsistent with the clear and unambiguous language of the first sentence of § 2912a(2).
14
Fulton, 253 Mich App at 74-75.
15
Id. at 82.
12
Moreover, as the Court of Appeals’ decision in this case illustrates, Fulton’s analysis is
being applied to all malpractice cases, even when they are pled only as traditional
malpractice cases.
The Court of Appeals analysis in the present case perpetuates the Fulton doctrine
and the confusion surrounding proximate causation in medical malpractice claims. Much
of the confusion stems from the inherent nature of medical malpractice: the plaintiff is
generally seeking treatment for a preexisting medical condition that is causing a problem
of some sort on its own, whereas in an ordinary negligence claim the plaintiff is generally
an otherwise uninjured person who is claiming that the entire injury was caused by the
incident.
In the present case, plaintiff was prepared to offer three expert witnesses to testify
on his behalf on the issue of proximate causation at the time of trial. Two of plaintiff’s
experts unequivocally opined, in a discovery deposition, that had the necessary treatment
been given, it was more probable than not that plaintiff would not have had a stroke.
Plaintiff’s first expert, Dr. Richard Stein, opined:
Q. I just have one question. Doctor, based on the extrapolation of
the peds data that you’ve described for us, within a reasonable degree of
medical certainty, and by that I mean with a greater than 50 percent
likelihood, if Dr Tapazoglou had met the standard of care as you defined it
today, would the stroke have been avoided?
A. To a reasonable degree of medical certainty, my opinion is yes,
and I have already stated the basis for that opinion.
13
After opining that an exchange transfusion was necessary to reduce plaintiff’s
hemoglobin S concentration to less than 30 percent, Dr. Luce, plaintiff’s second expert,
opined:
Q. With respect to Mr. O’Neal, if the hemoglobin S had been
reduced to less than 30 percent, do you have an opinion as to whether or not
he would have had the stroke anyhow?
A. I think it is probable that he would not have.
Q. When you say “probable,” are you prepared to say more
probably than not had Mr. O’Neal had his hemoglobin S reduced to less
than 30 percent he would not have had a stroke?
A. Correct.
The testimony of the third expert, Dr. Griffin Rodgers, was more specific in
expressing the statistics. The trial court summarized his testimony:
Dr. Griffin Rodgers, a hematologist, testified that a patient in sickle
cell crisis of acute chest syndrome has in the order of 10 or 20 percent
chance of developing a stroke. With a timely exchange transfusion, it
reduces the risk of stroke to less than 5 or 10 percent. Dr. Griffin’s
testimony demonstrates that Plaintiff had more than a 50 percent chance to
avoid a stroke.
As this case demonstrates, the way causation is analyzed is important, especially
when reviewing statistical data. In this instance, do these facts represent at best a 20
percent chance to avoid an injury, as the Court of Appeals concluded, or do they establish
proximate causation as found by the trial court? To answer this question we must
determine whether we use a percentage point differential subtraction analysis (as used by
the Court of Appeals in applying the Fulton formula) or whether we follow the approach
taken by the trial court. In doing so we must follow the analysis that is most consistent
with our historical rules governing proximate causation and the plain language of
14
§ 2912a(2), which requires that a plaintiff prove that he or she suffered an injury that
more probably than not was proximately caused by the negligence of the defendant or
defendants, in the context of this case. While the use of mathematical statistics is not
required by the statute, and we do not impose such a requirement, we conclude that the
analysis used by plaintiff’s experts and the trial court represents the correct approach in
this instance because it accurately represents the historical view of proximate causation
as expressed in the first sentence of § 2912a(2) based on its application to these facts.
In this case, it is undisputed that with or without treatment plaintiff was more
probably than not going to avoid the stroke. In other words, even without treatment it
was more probable that plaintiff would not have a stroke. However, plaintiff did have a
stroke. If the Fulton 50 percentage point differential subtraction analysis is used, plaintiff
cannot proceed with a traditional claim because the failure to provide treatment was not
the cause of the injury expressed in percentage point differential terms. As previously
indicated, however, the problem is that a 50 percentage point differential subtraction
analysis necessarily means that there can only be one cause of an injury. This analysis is
not consistent with the historical test for proximate causation, which has always been that
the malpractice be a proximate cause rather than the proximate cause.
Applying a 50 percentage point differential subtraction analysis requires that we
change the traditional analysis of causation in medical malpractice cases to the one most
immediate, efficient, and direct cause of the injury. This, however, is the standard for
15
determining the proximate cause rather than a proximate cause. This approach is simply
not in keeping with our historical view of causation.16
The Fulton approach is incorrect because it requires a reliance on probabilities and
possibilities of things that have not yet occurred, rather than reliance on what has actually
occurred. Plaintiff in this case did have a stroke and was injured; his claim is for an
existing injury, not just the possibility of one. Plaintiff’s injury is no longer a statistical
probability, it is a reality. The focus, once he was injured, is on the connection between
defendants’ conduct and the injury. The relevant inquiry for proximate causation is
whether the negligent conduct was a cause of plaintiff’s injury and whether plaintiff’s
injury was a natural and probable result of the negligent conduct. If so, defendants’
conduct was a proximate cause, even though there may have been other causes. The
analysis for proximate causation is the same whether we are discussing medical
malpractice or ordinary negligence. Defendants’ conduct in this case meets this standard
when the defendants’ actual conduct, rather than plaintiff’s statistical probability of
achieving a better outcome, is the focus of the inquiry.
16
Common-law rules apply to medical malpractice actions unless specifically abrogated
by statute. See MCL 600.2912(1) which provides:
A civil action for malpractice may be maintained against any person
professing or holding himself out to be a member of a state licensed
profession. The rules of the common law applicable to actions against
members of a state licensed profession, for malpractice, are applicable
against any person who holds himself out to be a member of a state
licensed profession. [Emphasis added.]
16
In this instance, plaintiff suffered an injury that was more probably than not
proximately caused by the negligence of defendants. As the trial court properly found,
defendants’ negligent conduct increased plaintiff’s risk of stroke from less than 5 to 10
percent to 10 to 20 percent. When viewed in the light most favorable to plaintiff, the
change is from less than 5 percent to 20 percent. As the trial court analyzed, this
represents a change that is greater than 50 percent in this instance. The trial court’s
approach is in keeping with the historical analysis of proximate causation because it
involves a comparative analysis, not a simplistic subtraction formula. Determining what
is “more probable than not” is inherently a comparative analysis. The proper method of
determining whether defendant’s conduct more probably than not proximately caused the
injury involves a comparative analysis, which is dependent upon the facts and
circumstances and expert opinion in a given case.17
We conclude that Fulton’s simple subtraction analysis is wrong and
unsupportable. While § 2912a(2) does not mandate the use of statistics or require any
particular mathematical formula, the historic analysis of proximate cause must be
followed to wit: the analysis or formulation used cannot require that the cause must be
the proximate cause rather than a proximate cause.
No single formula can be dispositive for all cases. In this case if we were to use a
standard percentage decrease calculation (meaning that defendants were responsible for
17
Comparative analyses could include standard percentage increases, standard
percentage decreases, or other scientifically accepted statistical analyses offered by the
experts.
17
15 percentage points out of the 20 total percentage points of plaintiff’s risk of the bad
result, so that there is a 15/20 chance or 75 percent chance) defendant’s malpractice was a
proximate cause of the injury.18 Similarly, if the evidence is viewed as a standard
percentage increase calculation (meaning that defendant was responsible for 15
percentage points of increase over the 5 percentage points to begin with, thus causing a
300% (15/5) increase in plaintiff’s risk of harm,) defendant’s malpractice was a
proximate cause of the injury.19
It is also important to emphasize that not all traditional medical malpractice cases
can or will be expressed in statistical or percentage terms, nor is a plaintiff required to
express proximate causation in percentage terms. The plain language of the statute
requires that proximate causation in traditional malpractice cases be expressed by
showing that the defendant’s conduct was more probably than not a cause of the injury,
not by statistical or percentage terms.20
18
Moreover, either of the mathematical formulas used as an example (standard
statistical decrease or increase) may not be appropriate in all cases because either could
limit causation to one proximate cause in those cases involving the conduct of more than
one defendant.
19
I recognize that Justice CAVANAGH and I differ on whether an increased risk of
harm is a valid statistical method for determining proximate causation in a traditional
malpractice case. However, both Justice CAVANAGH and I agree that claims evaluated in
that manner may be brought; we only disagree about whether those claims proceed as
claims for traditional malpractice or claims for loss-of-opportunity.
20
We also recognize that different mathematical formulations can have varying
results and that the results must be viewed in the light most favorable to the nonmoving
party. For example, while percentage increases and percentage decreases would both be
valid methods to determine proximate causation, they can yield different results. In those
18
Given that Fulton used an incorrect mathematical formula and is being used to
transform the burden of proof in traditional malpractice cases, we must next decide if it
has any continuing validity. We find that it has none in the context of traditional medical
malpractice cases. In Stone, all seven justices of this Court recognized that Fulton’s
analysis was incorrect or should be found to no longer be good law, though their reasons
for doing so varied.21 While I was not a member of this Court when Stone was decided, I
also conclude that Fulton did not correctly set forth the burden of proof necessary to
establish proximate causation as set forth in § 2912a(2). As all justices of this Court have
concluded that Fulton’s analysis of § 2912a(2) is wrong, it is illogical to fail to overrule
Fulton, because by failing to do so, this Court fosters unnecessary confusion for litigants
and the lower courts. Accordingly, we overrule Fulton to the extent that it has led courts
to improperly designate what should be traditional medical malpractice claims as loss-of-
opportunity claims and has improperly transformed the burden of proof in a traditional
malpractice case from a proximate cause to the proximate cause.
We emphasize that we hold that the second sentence of § 2912a(2) applies only to
medical malpractice cases that plead loss of opportunity and not to those that plead
traditional medical malpractice; we do not address the scope, extent, or nature of loss-of-
opportunity claims as that issue is not before us. Significant questions surround such
instances, if either calculation demonstrates that the plaintiff suffered an injury that more
probably than not was proximately caused by the negligence of the defendant or
defendants, the plaintiff’s case may proceed.
21
Stone, 482 Mich at 164 (opinion by TAYLOR, C.J.).
19
claims.22 However, we decline to decide issues that are not necessary to the resolution of
the case before us.
IV. CONCLUSION
For all the foregoing reasons, we conclude that the Court of Appeals erred in the
present case by reversing the trial court’s denial of summary disposition. The case before
us presents a traditional malpractice claim. It does not present a claim for loss of
opportunity. In traditional malpractice cases, the plaintiff is required to prove that the
defendant’s negligence more probably than not caused the plaintiff’s injury. In this case,
the testimony of plaintiff’s expert witnesses supports plaintiff’s position on proximate
causation. While that testimony is not dispositive, it is sufficient to raise a question of
fact to defeat a motion for summary disposition, allowing the issue to be adjudicated on
the merits by the trier of fact. Finally, we overrule Fulton to the extent that it has led
courts to improperly designate what should be traditional medical malpractice claims as
loss-of-opportunity claims and has improperly transformed the burden of proof in a
traditional malpractice case from a proximate cause to the proximate cause.
22
Questions exist about the full scope and extent of loss-of-opportunity claims and
the extent of damages recoverable in those actions, which we do not decide today. For
example, a partial discussion of the scope of loss-of-opportunity claims was at issue in
Wickens v Oakwood Healthcare Sys, 465 Mich 53; 631 NW2d 686 (2001). While Justice
CAVANAGH and I do not fully agree in this case, I do agree with Justice CAVANAGH’s
partial dissent in Wickens that a living person may pursue a claim for loss of opportunity
under the circumstances presented in that case.
20
Accordingly, we reverse the judgment of the Court of Appeals and remand this
matter to the Court of Appeals for consideration of the issue not decided on appeal in that
court.
WEAVER, J., concurred with HATHAWAY, J.
21
STATE OF MICHIGAN
SUPREME COURT
RAYMOND O’NEAL,
Plaintiff-Appellant,
v No. 138180, 138181
ST. JOHN HOSPITAL & MEDICAL
CENTER, RALPH DiLISIO, M.D., and
EFSTATHIOS TAPAZOGLOU, M.D.,
Defendant-Appellees.
CAVANAGH, J. (concurring).
I concur in the result. I agree with the majority that the Court of Appeals’
judgment in this case should be reversed because the Court erred by treating this case as a
loss-of-opportunity case instead of a traditional medical malpractice case and, as a result,
erred by requiring plaintiff to meet the requirements in the second sentence of MCL
600.2912a(2). I further agree that Fulton v William Beaumont Hosp, 253 Mich App 70;
655 NW2d 569 (2002), should be overruled to the extent that courts have relied on it to
improperly transform what could be traditional medical malpractice claims into loss-of-
opportunity claims.1 I write separately to express my views on the issues presented.
1
Contrary to Justice YOUNG’s assertion, I overrule Fulton only to the extent that it
is implicated in this case. Regardless, I am sincerely baffled about what relevance Chief
Justice KELLY’s views on a former composition of this Court have to do with whether we
should overrule a Court of Appeals case.
This case raises the issue of what the proper burden of proof for proximate
causation is in medical malpractice cases in which the plaintiff had a preexisting risk of
the bad result that occurred, even absent the defendant’s alleged negligence. I agree with
the lead opinion that the second sentence of MCL 600.2912a(2) is inapplicable to this
case because it only applies to loss-of-opportunity claims and this case does not involve a
loss-of-opportunity claim. Instead, the key issue in this case is the proper interpretation
of the first sentence of MCL 600.2912a(2).
The first sentence of MCL 600.2912a(2) clearly provides that a plaintiff in any
medical malpractice case, including a traditional medical malpractice case, bears the
burden of showing that it is more probable than not that the plaintiff’s injury was
proximately caused by the defendant’s negligence. Under traditional malpractice law in
Michigan, proximate cause includes two prongs: (1) cause in fact and (2) legal, or
“proximate,” cause.2 See, e.g., Skinner v Square D Co, 445 Mich 153, 162-163; 516
NW2d 475 (1994). While legal causation relates to the foreseeability of the
consequences of the defendant’s conduct, the cause-in-fact prong “generally requires
showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have
occurred.” Id. at 163. The cause-in-fact prong is sometimes also stated as requiring that
“it is more likely than not that the conduct of the defendant was a cause in fact of the
result.” Weymers v Khera, 454 Mich 639, 648; 563 NW2d 647 (1997) (quotation marks
2
Because the statute incorporates words and phrases from the common law, it is
appropriate to consider common-law meanings of these phrases. See People v Wright,
432 Mich 84, 92; 437 NW2d 603 (1989).
2
and citations omitted). Thus, even in cases in which there is statistical evidence that the
plaintiff had a risk of the bad result occurring absent negligence,3 a plaintiff may still
meet the cause-in-fact prong of the proximate causation analysis if the plaintiff can show
that it is more probable than not that the defendant’s alleged negligence was a cause in
fact of the bad result occurring. I would hold that this threshold is met if the plaintiff can
show that the alleged negligence was responsible for a majority, or “more than fifty
percent,” of the risk of the bad result occurring. See MCL 600.2912a(2) and Falcon v
Mem Hosp, 436 Mich 443, 450; 462 NW2d 44 (1990).4
Under this approach, a court should consider the total risk of the bad result that the
plaintiff faced, including the risk caused by the alleged negligence. Then, the court
should consider how much of that risk was created by the negligence. If the negligence
was responsible for more than half of the total risk of the bad result and the plaintiff
suffered that bad result, then the cause-in-fact prong of the proximate cause analysis is
met because it is more probable than not that the defendant’s negligence was a cause in
3
I agree with the lead opinion, however, that not all traditional medical
malpractice cases need to be expressed in statistical or percentage terms in order to meet
the “more probable than not” standard.
4
If a plaintiff cannot meet the burden for a traditional medical malpractice claim, I
would hold that the plaintiff may still pursue a loss-of-opportunity claim if the plaintiff
can meet the requirements for those claims provided in MCL 600.2912a(2) and Falcon,
as explained in my opinion in Stone v Williamson, 482 Mich 144, 170-179; 753 NW2d
106 (2008).
3
fact of the bad result.5 This approach is consistent with the statutory language “more
probable than not” and with the historical approach to proximate causation.6
5
To give a nonmedical example, if I am rolling a die, there is ordinarily a 1 out of
6 chance that I will roll a number one. But if a defendant negligently changes two
additional sides of the die to number ones, then the die will have three number ones.
Now my chances of rolling a number one are 3 out of 6 (or 1/2). If I actually roll a
number one, there is a 2/3 (approximately 67 percent) chance that I rolled a number one
that was created by the defendant’s negligence. Therefore, there is a more than 50
percent chance that I rolled a number one because of the defendant’s negligence, i.e., it is
more probable than not that the defendant’s negligence was a cause in fact of the result.
Notably, this analysis will differ somewhat if the plaintiff’s increased risk of the bad
result is alleged to have been caused by multiple negligent actors, depending on the
timing and the interaction of the various causes.
6
Justice YOUNG haphazardly concludes that “the majority” is extending the
exception to the cause-in-fact prong created in Falcon to all medical malpractice claims.
I agree that Falcon created what was essentially an exception to this rule, but I fail to see,
and Justice YOUNG utterly fails to explain, how my approach in this case is an extension
of that rule to all traditional medical malpractice cases. Justice YOUNG himself explains
that “[i]n cases in which the plaintiff alleges that the defendant’s negligence more
probably than not caused the injury, the claim is one of simple medical malpractice [as
opposed to loss-of-opportunity].” (Quotation marks and citation omitted.)
Setting aside the numerous pages of Justice YOUNG’s opinion that consist only of
irrelevant, hyperbolic, or unsubstantiated commentary, he appears to raise only two
substantive concerns with my approach, and neither provides support for his conclusion
that it does not satisfy the cause-in-fact prong. First, he irrelevantly notes that, as I
concede in footnote 7, this approach is inconsistent with an example I used in Stone.
Second, he alleges that I should not have compared the low end of the possible range of
plaintiff’s risk of the bad result absent negligence to the high end of the range of
plaintiff’s risk with negligence. I think that my approach is perfectly consistent with our
charge to view the evidence in the light most favorable to the plaintiff, given that even
Justice YOUNG explains that the experts testified that plaintiff’s risk was somewhere
between the ranges the experts provided. But regardless, this criticism only challenges
which numbers to use and not the merits of the approach itself, and it would be possible,
as Justice YOUNG prefers, to instead compare the low ends of the ranges, or the high
ends, only to each other. For example, if the alleged negligence increased a plaintiff’s
risk of the bad result from 5 to 10 percent to 30 to 40 percent, then, regardless of which
numbers are compared, the negligence would have been responsible for a majority of the
4
In adopting this approach, I reject the view that a plaintiff must show that the
defendant’s negligence increased the plaintiff’s risk by more than 50 percentage points,
e.g., from 25 percent to 76 percent, or from 10 percent to 61 percent.7 As noted by the
lead opinion, this approach is inconsistent with the historical approach to proximate
causation. It is also inconsistent with the first sentence in MCL 600.2912a(2) because it
would preclude traditional medical malpractice claims in many cases in which the
defendant’s negligence was more probably than not a cause in fact of the bad result, such
as in a case in which the negligence increased the risk of a bad result from 5 percent to 45
percent.8 I also reject the lead opinion’s “percent-increase” test because it is similarly
inconsistent with a more-probable-than-not standard. The fact that a negligent act caused
plaintiff’s risk of the bad result, and, given that the bad result occurred, it would be more
probable than not that the negligence was a cause in fact of the bad result occurring.
Justice YOUNG fails to address why this logic is incorrect or levy a criticism that actually
supports his conclusion that my approach eviscerates the cause-in-fact requirement.
7
To the extent that I endorsed the percentage point approach by way of an
example in my opinion in Stone, I repudiate that position. See Stone, 482 Mich at 177
(opinion by CAVANAGH, J.), stating that a plaintiff whose chance of survival decreased
from 80 to 40 percent could not bring a traditional malpractice claim because it would not
amount to a 50 percent change.
8
In this example, the defendant was responsible for 40 percentage points of the
plaintiff’s risk, out of a total of 45 percentage points, meaning that there is a 40 out of 45
chance, or 40/45 (approximately 89 percent) chance, that the defendant’s negligence was
a cause in fact of the bad outcome. In contrast, under the percentage-point approach, the
plaintiff’s burden would not have been met because the increase in risk was 40
percentage points.
5
a 50 percent increase in the risk of a bad result does not demonstrate that it is more
probable than not that the negligence was a cause in fact of the bad result.9
In this case, plaintiff presented sufficient facts to establish the cause-in-fact prong
of the proximate cause analysis in a traditional medical malpractice claim. Viewing the
facts in the light most favorable to plaintiff, plaintiff’s expert testified that defendants’
alleged negligence increased plaintiff’s risk of the bad result, the stroke, from 5 percent to
20 percent. Defendant was thus responsible for 15 percentage points out of the total 20
percentage points of plaintiff’s risk of the bad result, meaning that there is a 15/20
chance, or 75 percent chance, that defendant’s alleged negligence was a cause in fact of
the bad result.10 Thus, plaintiff has presented evidence sufficient to support his allegation
9
For example, if a defendant’s negligence caused an increase in a plaintiff’s risk
of a bad result from 10 percent to 15 percent, this would be a 50 percent increase in risk.
But it is not more probable than not that the defendant’s negligence was a cause in fact
because the defendant would only have been responsible for five out of the total 15
percentage points of the plaintiff’s risk of the bad result, meaning that there is only a 5/15
chance, or an approximately 33 percent chance, that the negligence was a cause in fact of
the bad result. As I explain in footnote 3, however, the plaintiff could still pursue a loss-
of-opportunity claim.
10
Although this formulation is mathematically identical to Justice MARKMAN’s
approach, there are very important differences in how we view its utility. I favor
adopting it because it is consistent with the more-probable-than-not standard in the first
sentence of MCL 600.2912a(2) as applied to traditional medical malpractice claims in
which the plaintiff had a risk of the bad result even absent negligence. In contrast, Justice
MARKMAN believes it is required by the second sentence of MCL 600.2912a(2) and,
unlike myself, believes that all medical malpractice claims in which there was a risk of
the bad result occurring even absent negligence should be treated as loss-of-opportunity
claims, regardless of whether the plaintiff can meet the burden of proof for a traditional
medical malpractice claim. As explained in my concurring opinion in Stone, I continue
to think that Justice MARKMAN’s interpretation is inconsistent with the statute’s text and
6
that it is “more probable than not” that defendant’s negligence was a cause in fact of the
stroke occurring.
For the foregoing reasons, I concur with the lead opinion that the judgment of the
Court of Appeals should be reversed. I would remand the case to the Court of Appeals
for further proceedings.
KELLY, C.J., concurred with CAVANAGH, J.
Michigan law, including Falcon. Stone, 482 Mich at 179-184 (opinion by CAVANAGH,
J.).
7
STATE OF MICHIGAN
SUPREME COURT
RAYMOND O’NEAL,
Plaintiff-Appellant,
v No. 138180, 138181
ST. JOHN HOSPITAL & MEDICAL
CENTER, RALPH DiLISIO, M.D., and
EFSTATHIOS TAPAZOGLOU, M.D.,
Defendant-Appellees.
KELLY, C.J. (concurring).
I fully join Justice CAVANAGH’s concurring opinion. I write separately because in
his dissent (which Justice CORRIGAN joins), Justice YOUNG continues to quote and
misleadingly characterize a statement I made nearly two years ago off the bench. Post at
1 (YOUNG, J., dissenting). For my response, I refer the reader to my concurring opinion
in Univ of Mich Regents v Titan Ins Co, ___ Mich ___, ___; ___ NW2d ___ (2010)
(KELLY, C.J., concurring).
Marilyn Kelly
STATE OF MICHIGAN
SUPREME COURT
RAYMOND O’NEAL,
Plaintiff-Appellant,
v No. 138180
ST. JOHN HOSPITAL & MEDICAL
CENTER, RALPH DiLISIO M.D. and
EFSTATHIOS TAPAZOGLOU, M.D.,
Defendant-Appellees.
WEAVER, J., (concurring).
I concur fully with and sign Justice HATHAWAY’s opinion. I write separately to
note that by overruling the Court of Appeals’ decision in Fulton, we are not overruling
precedent from this Court. Justice YOUNG’s dissent, however, attempts to mislead the
public into thinking that this Court is overruling such precedent by introducing a
discussion of stare decisis into this case.
Justice YOUNG’S dissent lists 12 cases that have been overruled by this Court in
the past 18 months. While Justice YOUNG may feel aggrieved by this Court overruling
those 12 cases, amongst those cases were some of the most egregious examples of
judicial activism that did great harm to the people of Michigan. Those decisions were
made by the “majority of four,” including Justice YOUNG, under the guise of ideologies
such as “textualism” and “judicial traditionalism.”
As I stated in my concurrence in Univ of Mich Regents v Titan Ins Co, ___ Mich
___, ___ ; ___ NW2d ___ (2010), I agree with the sentiment recently expressed by Chief
Justice Roberts of the United States Supreme Court in his concurrence to the decision in
Citizens United v Fed Election Comm, 558 US ___, ___; 130 S Ct 876, 920; 175 L Ed 2d
753, 806 (2010), when he said that
stare decisis is neither an “inexorable command,” Lawrence v. Texas, 539
U. S. 558, 577 [123 S Ct 2472; 156 L Ed 2d 508] (2003), nor “a mechanical
formula of adherence to the latest decision,” Helvering v. Hallock, 309 U.
S. 106, 119 [60 S Ct 444; 84 L Ed 604] (1940) . . . . If it were, segregation
would be legal, minimum wage laws would be unconstitutional, and the
Government could wiretap ordinary criminal suspects without first
obtaining warrants. See Plessy v. Ferguson, 163 U. S. 537 [16 S Ct 1138;
41 L Ed 256] (1896), overruled by Brown v. Board of Education, 347 U. S.
483 [74 S Ct 686; 98 L Ed 873] (1954); Adkins v. Children's Hospital of D.
C., 261 U. S. 525 [43 S Ct 394; 67 L Ed 785] (1923), overruled by West
Coast Hotel Co v. Parrish, 300 U. S. 379 [57 S Ct 578; 81 L Ed 703]
(1937); Olmstead v. United States, 277 U. S. 438 [48 S Ct 564; 72 L Ed
944] (1928), overruled by Katz v. United States, 389 U. S. 347 [88 S Ct
507; 19 L Ed 2d 576] (1967).
Chief Justice Roberts further called stare decisis a “principle of policy” and said that it “is
not an end in itself.” Id. at ___; 130 S Ct at 920; 175 L Ed 2d at 807. He explained that
“[i]ts greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in
the unusual circumstance when fidelity to any particular precedent does more to damage
this constitutional ideal than to advance it, we must be more willing to depart from that
precedent.” Id at ___; 130 S Ct at 921; 175 L Ed 2d at 807. It appears that Justice
YOUNG does not agree with Chief Justice Roberts.
2
The consideration of stare decisis and whether to overrule wrongly decided
precedent always includes service to the rule of law through an application and exercise
of judicial restraint, common sense, and a sense of fairness—justice for all.1
Elizabeth A. Weaver
1
Justice YOUNG’s apparent contempt for the common law and common sense can
be seen in his 2004 article in the Texas Review of Law and Politics, where Justice
YOUNG stated:
Consequently, I want to focus my remarks here on the
embarrassment that the common law presents—or ought to present—to a
conscientious judicial traditionalist. . . .
To give a graphic illustration of my feelings on the subject, I tend to
think of the common law as a drunken, toothless ancient relative, sprawled
prominently and in a state of nature on a settee in the middle of one’s
genteel garden party. Grandpa’s presence is undoubtedly a cause of
mortification to the host. But since only the most ill-bred of guests would
be coarse enough to comment on Grandpa’s presence and condition, all
concerned simply try ignore him. [Young, A judicial traditionalist
confronts the common law, 8 Texas Rev L & Pol 299, 301-302 (2004).]
3
STATE OF MICHIGAN
SUPREME COURT
RAYMOND O’NEAL,
Plaintiff-Appellant,
v No. 138180, 138181
ST. JOHN HOSPITAL & MEDICAL
CENTER, RALPH DiLISIO, M.D., and
EFSTATHIOS TAPAZOGLOU, M.D.,
Defendants-Appellees.
MARKMAN, J. (concurring in the result only).
Unlike the majority, I conclude that this is a lost-opportunity case because it is
possible that the bad outcome here, i.e., suffering a stroke, would have occurred even if
plaintiff had received proper treatment. However, I concur in the result reached by the
majority because plaintiff has raised a genuine issue of material fact regarding whether he
suffered a greater than 50 percent loss of an opportunity under MCL 600.2912a.
Therefore, I agree with the majority that the judgment of the Court of Appeals should be
reversed and this case should be remanded to the Court of Appeals for it to consider
defendants’ remaining issue on appeal, i.e., the admissibility of the expert testimony
proffered by plaintiff. However, I strongly disagree with the analysis of the majority and
believe that it will lead to confusion and unnecessary litigation.
I. STATUTE AND CASELAW
MCL 600.2912a(2) provides:
In an action alleging medical malpractice, the plaintiff has the
burden of proving that he or she suffered an injury that more probably than
not was proximately caused by the negligence of the defendant or
defendants. In an action alleging medical malpractice, the plaintiff cannot
recover for loss of an opportunity to survive or an opportunity to achieve a
better result unless the opportunity was greater than 50%.[1]
In Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002), the Court
of Appeals held that a lost-opportunity plaintiff must prove that his loss was greater than
50 percentage points. That is, the difference between the plaintiff’s premalpractice
chance to achieve a better result and the plaintiff’s postmalpractice chance to achieve a
better result must be greater than 50 percentage points.2
In Stone v Williamson, 482 Mich 144; 753 NW2d 106 (2008), although all seven
justices concluded that Fulton was wrongly decided, this Court could not overrule Fulton
because, while four justices concluded that Fulton was a lost-opportunity case, six
justices concluded that Stone was not a lost-opportunity case. See Stone, 482 Mich at
164 n 14 (opinion by TAYLOR, C.J.) (“[B]ecause a majority of justices hold that this is
not a lost-opportunity case, the issue of the correctness of Fulton, cannot be reached, and
1
For a discussion of the common law that existed before the enactment of this
statutory provision, see my concurring opinion in Stone v Williamson, 482 Mich 144; 753
NW2d 106 (2008) (MARKMAN, J., concurring).
2
As I did in Stone, I use the term “premalpractice chance” to refer to the plaintiff’s
chance to survive or achieve a better result with proper treatment, and the term
“postmalpractice chance” to refer to the plaintiff’s chance to survive or achieve a better
result without proper treatment.
2
Fulton’s approach remains undisturbed as the method of analyzing lost-opportunity
cases.”).3 In Stone, Chief Justice TAYLOR and Justices CORRIGAN and YOUNG concluded
that the loss-of-an-opportunity provision is “unenforceable.” Stone, 482 Mich at 147
(opinion by TAYLOR, C.J.). They concluded that if the plaintiff’s premalpractice
opportunity to achieve a better result was greater than 50 percent, the plaintiff could bring
a traditional medical-malpractice action. However, if the plaintiff’s premalpractice
opportunity to achieve a better result was 50 percent or less, the plaintiff could not bring
a traditional medical-malpractice action or a lost-opportunity action because lost-
opportunity actions are no longer allowed under the language of the statute.
Justices CAVANAGH, KELLY, and WEAVER concluded in Stone that if the
percentage point difference between the plaintiff’s premalpractice opportunity to achieve
a better result and his postmalpractice opportunity to achieve a better result was greater
than 50 percentage points, the plaintiff could bring a traditional medical-malpractice
action. However, if the percentage point difference was 50 points or less, the plaintiff
could only bring a lost-opportunity action and would have to prove that his
premalpractice opportunity to achieve a better result was greater than 50 percent.
3
Because a majority of justices now believes that neither Fulton nor the instant
case are lost-opportunity cases, Fulton is now apparently overruled at least with regard to
the determination concerning whether a case is a traditional medical-malpractice action
or a lost-opportunity action. However, because a majority of the justices conclude that
the instant case is not a lost-opportunity case, Fulton’s method of analyzing lost-
opportunity cases is unaffected by the decision in this case.
3
Finally, in Stone, I concluded that a lost-opportunity case is “one in which it is at
least possible that the bad outcome would have occurred even if the patient had received
proper treatment.” Id. at 186 (MARKMAN, J., concurring).4 I further concluded that in
order for a lost-opportunity plaintiff to prevail, he must prove that his lost opportunity
was greater than 50 percent. And,
[i]n order to determine whether the “lost opportunity” was greater than 50
percent, the postmalpractice chance of obtaining a better result must be
subtracted from the premalpractice chance, the postmalpractice chance
must then be subtracted from 100, the former number must be divided by
the latter number, and then this quotient must be multiplied by 100 to
obtain a percentage. [Id.]
“If this percentage is greater than 50, the plaintiff may be able to prevail; if this
percentage is 50 or less, then the plaintiff cannot prevail.” Id.
II. PROBLEMS WITH FULTON
As I observed in Stone, the first problem with Fulton is that it requires a loss of
more than 50 percentage points, while MCL 600.2912a(2) requires a loss of more than 50
percent.
The Court of Appeals in Fulton . . . concluded that because the
plaintiff’s premalpractice chance of survival was 85 percent and her
postmalpractice chance of survival was 60 percent to 65 percent, her “lost
opportunity” was 20 percent to 25 percent and, thus, because the plaintiff’s
“lost opportunity” was not greater than 50 percent, she could not recover
under MCL 600.2912a(2). However, Fulton did not offer any explanation
as to why it merely subtracted the postmalpractice chance from the
premalpractice chance to determine the “lost opportunity.” This might have
4
“By contrast, if there is no question that the proper treatment would have resulted
in a good outcome, then the patient who has suffered a bad outcome has a traditional
medical-malpractice action.” Stone, 482 Mich at 186 (MARKMAN, J., concurring).
4
been the correct method of determining the “lost opportunity” if MCL
600.2912a(2) required that such a loss be “greater than 50 percentage
points.” However, MCL 600.2912a(2) requires that the “lost opportunity”
be “greater than 50%.” There is a significant distinction between 50
percentage points and 50 percent. As Dr. Roy Waddell, a board-certified
orthopedic surgeon in Grand Rapids, has explained: “A decrease in survival
rate from 50 percent to 10 percent is a 40-percentage-point decrease, but it
is an 80 percent decrease.” Waddell, A doctor’s view of “opportunity to
survive”: Fulton’s assumptions and math are wrong, 86 Mich B J 32, 33
(March 2007) (emphasis in original). Similarly, a reduction in wages from
$5 an hour to $1 an hour is not a 4 percent reduction in wages; rather, it is
an 80 percent reduction in wages. [Id. at 196 (emphasis in the original).]
As I also observed in my concurring opinion in Stone, Justice CAVANAGH made this same
mistake in his concurring opinion in Stone:
Like the Court of Appeals in Fulton, Justice CAVANAGH offers no
explanation as to why he repeatedly calculates the “lost opportunity” in
terms of the percentage points lost rather than the actual percentage lost
when MCL 600.2912a(2) clearly states that the “lost opportunity” must be
“greater than 50%,” not greater than 50 percentage points. These statistical
concepts are utterly distinct. [Id. at 196 n 11.]
I am pleased that Justice CAVANAGH and the other justices who signed his opinion in
Stone (Chief Justice KELLY and Justice WEAVER) now apparently recognize this
analytical error, and that they now “repudiate” that position. Thus, a majority of the
justices of this Court now agree that MCL 600.2912a(2) requires us to determine whether
the lost opportunity is “greater than 50%,” not whether the lost opportunity is greater than
50 percentage points.
The other problem with Fulton, that Justice CAVANAGH and his colleagues in the
majority also now apparently recognize, is that “it does not differentiate between those
patients who would have survived regardless of whether they received proper or improper
5
treatment and those patients who needed the proper treatment in order to survive.” Id. at
197.5 As I observed in Stone:
Such a differentiation is necessary because only those in the latter
group have truly suffered a “lost opportunity” as a result of the improper
treatment. That is, if a patient would have survived regardless of whether
he received proper or improper treatment, the improper treatment cannot be
said to have caused him to lose an opportunity to survive. On the other
hand, if the patient would have survived only if he had received the proper
treatment, the improper treatment can be said to have caused him to lose an
opportunity to survive. MCL 600.2912a(2) requires us to determine
whether the patient more likely than not fell into the latter category rather
than the former category, because the statute only allows a plaintiff to
recover for a “loss of an opportunity” that was “greater than 50%” and that
was “caused by the negligence of the defendant . . . .” Dr. Waddell’s
calculation does just that:
(Premalpractice chance) - (Postmalpractice chance)
100-(Postmalpractice chance)
5
Although the majority describes their formula in considerably different terms
than I did in Stone, the same result is produced under either formula. That is, regardless
of whether the formula is described as I do [(premalpractice chance of better result) -
(postmalpractice chance of better result)]/[100 - (postmalpractice chance of better
result)], or, as the majority now does [(postmalpractice chance of worse result) -
(premalpractice chance of worse result)]/[(postmalpractice chance of worse result)], the
same figure is obtained. Given Justice CAVANAGH’s forceful criticisms of my formula in
Stone, it is encouraging that we are now in agreement on this critical point. See, e.g.,
Stone, 482 Mich at 183-184 (CAVANAGH, J., dissenting) (“the Waddell formula [which I
adopted in Stone and to which I continue to adhere] is blatantly inconsistent with the
language of MCL 600.2912a(2)”; “[i]t is inconceivable that Justice MARKMAN can read
the [statute] and conclude that it should be translated into this formula”; “[t]he approach
taken by Justice MARKMAN and Dr. Waddell requires [the statute] to be rewritten”; “the
Waddell approach leads to such anomalous results that it cannot possibly reflect the
intention of the Legislature”). While Justice CAVANAGH is correct that he employs the
formula to determine whether plaintiff’s cause of action is a traditional medical-
malpractice action or a lost-opportunity action, and I use it to determine whether plaintiff
has satisfied the greater-than-50-percent requirement, we agree nonetheless that the
number produced by the formula represents the opportunity that the plaintiff lost as a
result of the defendant’s negligence.
6
The quotient resulting from this numerator and denominator is then
multiplied by 100 to obtain a percentage. This number must be “greater
than 50%” in order to satisfy the requirement of the second sentence of
MCL 600.2912a(2). For instance, if the patient’s premalpractice chance to
achieve a better result was 80 percent and, as a result of the defendant’s
malpractice, the patient’s postmalpractice chance is reduced to 20 percent,
the patient has suffered a 75 percent loss of an opportunity to survive.[6]
What the Waddell formula essentially does is test the sufficiency of
the expert testimony, which is typically presented in the form of two
statistics: the likelihood that a patient would have had a good outcome with
proper treatment (the “[premalpractice chance]”) and the likelihood that a
patient would have had a good outcome with negligent treatment (the
“[postmalpractice chance]”). The Waddell formula allows a court analyzing
this data to determine whether the plaintiff, when the patient has
experienced a bad outcome, has created a question of material fact
concerning whether proper treatment more likely than not would have made
a difference. The formula does this by identifying the universe of patients
who would have had a bad outcome (the denominator) and the subset of
those patients who could have been favorably treated (the numerator).
It is easiest to start with the formula’s denominator. This
denominator consists of the universe of all patients who would have had a
bad outcome, for whatever reason. This group includes two subsets of
patients: those who would have had a bad outcome because they received
negligent treatment, and those who would have had a bad outcome despite
receiving proper treatment. The formula identifies this group by
subtracting from 100 the percentage of patients who would have had a good
outcome even without proper treatment; in other words, it subtracts the
“[postmalpractice chance]” from 100. In this way, a court can take the
expert’s statistics and identify those patients who were not treated properly
and who experienced a bad outcome. A patient who is the subject of a
medical-malpractice action is a member of this group. But we cannot
determine whether the patient is a member of this group because he or she
was denied the proper treatment or because he or she would have suffered a
bad outcome even with proper treatment.
One more calculation must then be made in order to answer the
dispositive question posed by the statute: whether it is more likely than not
that the patient would have benefited from proper treatment or, put another
6
[(80 - 20)/(100 -20)] x 100 = 75%.
7
way, whether the “opportunity to survive or . . . to achieve a better result”
was “greater than 50%.” MCL 600.2912a(2). A court has to determine
what percentage of those patients with a bad outcome (those patients in the
denominator) would have benefited from treatment. This brings us to the
Waddell formula’s numerator. The numerator consists of those patients
who would have had a bad outcome only if they had been negligently
treated. It is calculated by subtracting the “[postmalpractice chance]” from
the “[premalpractice chance],” thus identifying those patients who required
treatment to avoid a bad outcome.
Once the numerator and denominator have been calculated,
comparison of these two numbers by their quotient allows a court to
reasonably determine whether improper treatment more likely than not
made a difference in the patient’s outcome. If the number of patients who
would have had a bad outcome only if they had been negligently treated
(the numerator) comprises more than half of the number of patients who
would have had a bad outcome overall (the denominator), then the plaintiff
has established that proper treatment more likely than not would have made
a difference. In other words, when this has been shown, the plaintiff has
created a question of material fact concerning whether the “opportunity”--
the benefit that would have been realized by a group of patients from the
treatment that was not given to this specific patient-- was greater than 50
percent. Such a plaintiff has presented adequate expert testimony to
establish a “lost opportunity” cause of action within the meaning of the
statute.
As Dr. Waddell has explained:
“[T]he intent of the law is to disallow damages unless it can be
shown that proper treatment creates a better than even (“greater than
50%”) chance of survival of the patients who would have died without
treatment. In other words, if appropriate treatment cannot save at least half
of the patients who otherwise would have died, then you do not have
sufficient evidence to show that the negligence made the difference in the
adverse outcome (death). Conversely, if good treatment can save more
than half of the patients who otherwise would have died, then you have
adequate evidence that the poor treatment or negligence was likely to blame
for the bad outcome. This is exactly what this definition of opportunity
measures.” [Waddell, 86 Mich B J at 33 (emphasis in original).]
MCL 600.2912a(2) only allows a plaintiff to recover for a “loss of an
opportunity” that was “greater than 50%” and that was “caused by the
negligence of the defendant . . . .” Use of Dr. Waddell’s formula, which
generates the actual percentage lost rather than the number of percentage
8
points lost, and excludes those who would have achieved a good result
regardless of the malpractice, best ensures, in my judgment, that these
statutory requirements are satisfied. That is, this calculation would impose
liability, in accordance with MCL 600.2912a(2), in those instances in
which the medical care received more likely than not affected whether the
patient survived. [Id. at 197-202.]
III. APPLICATION
In the instant case, plaintiff alleged that defendants failed to timely and properly
treat his acute chest syndrome, a serious complication of sickle-cell disease, and that, as a
result, he suffered a stroke. More specifically, plaintiff alleged that defendants should
have performed an exchange blood transfusion in which the patient’s abnormal blood is
taken out and replaced with normal blood, rather than a simple blood transfusion in
which normal blood is simply added to the patient’s abnormal blood.7 Plaintiff’s expert
witness testified that there was a 10 to 20 percent chance of stroke without proper
treatment, but that with proper treatment there would have been only a 5 to 10 percent
chance of stroke. In other words, with proper treatment plaintiff had a 90 to 95 or more
percent chance of not suffering a stroke, and without proper treatment he had an 80 to 90
percent chance of not suffering a stroke. That is, plaintiff’s premalpractice chance to
achieve a better result was, at best, 95 percent, and his postmalpractice chance was, at
worst, 80 percent. Pursuant to the Waddell calculation, plaintiff lost a 75 percent
opportunity to achieve a better result:
7
An exchange blood transfusion was not performed until after plaintiff suffered a
stroke. As a result of the stroke, plaintiff suffers from partial paralysis of his left leg and
complete loss of function of his left hand and arm.
9
95 - 80 x 100 = 75%
100 - 80
Therefore, plaintiff has raised a genuine issue of material fact regarding whether he
suffered a greater than 50 percent loss of an opportunity under MCL 600.2912a(2). For
these reasons, I agree with the majority that the judgment of the Court of Appeals should
be reversed and this case should be remanded to the Court of Appeals for it to consider
defendants’ remaining issue on appeal, i.e., the admissibility of the expert witness
testimony proffered by plaintiff.
IV. MAJORITY’S ANALYSIS
Although I agree with the majority that the Court of Appeals should be reversed, I
strongly disagree with its analysis.
A. LOST OPPORTUNITY VS. TRADITIONAL MEDICAL MALPRACTICE
1. GREATER-THAN-50-PERCENT REQUIREMENT
On the one hand, the majority concludes that whether the plaintiff’s lost
opportunity is greater than 50 percent determines whether the plaintiff’s action is a lost-
opportunity action or a traditional medical-malpractice action. I find this conclusion to
be completely illogical. Either the defendant’s negligence has caused the plaintiff to
suffer the injury, or it has caused the plaintiff to suffer a loss of an opportunity to achieve
a better result-- the better result being not to suffer the injury. How substantial the
plaintiff’s lost opportunity is determines whether he satisfies the “greater than 50%”
requirement of MCL 600.2912a(2), not whether the plaintiff’s action constitutes a lost-
opportunity action in the first place. As I stated in Stone:
10
In order to satisfy traditional medical-malpractice action
requirements, there must be no question that the proper treatment would
have resulted in a good outcome (at least with regard to the specific injury
suffered by the patient), because if there is any chance that a patient who
received proper treatment might nevertheless have suffered the specific bad
outcome ultimately suffered by the patient, it cannot be proved that the
improper treatment caused the bad outcome. If there is any chance that the
proper treatment could have resulted in the bad outcome, the chances of a
good outcome with proper treatment and the chances of a good outcome
with improper treatment must be compared. That is, under those
circumstances, although the plaintiff cannot prove that the defendant’s
malpractice caused the bad outcome because the bad outcome might have
occurred even with proper treatment, the plaintiff may be able to prove that
the defendant’s malpractice increased the patient’s chances of obtaining a
bad outcome and, thus, caused him or her to suffer a “lost opportunity” to
achieve a better result. This is the only coherent concept of a “lost
opportunity” cause of action under MCL 600.2912a(2). [Stone, 482 Mich
at 271 (MARKMAN, J., concurring).]
Because it is possible that the bad outcome in this case, i.e., suffering a stroke, might
have occurred even if plaintiff had received proper treatment, the instant case constitutes
a lost-opportunity action.
2. PLAINTIFF’S PLEADINGS
On the other hand, the lead opinion concludes that “the second sentence of
§ 2912a(2) applies only to medical malpractice cases that plead loss of opportunity, and
not to those that plead traditional medical malpractice . . . .” That is, the lead opinion
concludes that whether the plaintiff’s action constitutes a lost-opportunity action or a
traditional medical-malpractice action is a function of whether the plaintiff has used the
magic words “lost opportunity” in his pleading. If he did not, the action is a traditional
medical-malpractice action and the plaintiff need not concern himself with satisfying the
greater-than-50-percent requirement of MCL 600.2912a(2). However, if the plaintiff did
11
use the words “lost opportunity” in his pleading, the action is a lost-opportunity action
and the plaintiff must satisfy the greater-than-50-percent requirement of MCL
600.2912a(2). Besides being utterly inconsistent with the majority’s own conclusion that
a lost opportunity greater than 50 percent determines whether the plaintiff’s action
constitutes a lost-opportunity action or a traditional medical-malpractice action, it is also
inconsistent with the well-established principle that Michigan courts are “not bound by a
party’s choice of label for its action [because this would] put form over substance . . . .”
St. Paul Fire & Marine Ins Co v Littky, 60 Mich App 375, 378-379; 230 NW2d 440
(1975). Instead, as we explained in Maiden v Rozwood, 461 Mich 109, 135; 597 NW2d
817 (1999), “the gravamen of plaintiff's action is determined by considering the entire
claim.” (Emphasis added.)
Thus, just as whether a plaintiff labels an action as an ordinary negligence action
does not control whether that action is, in fact, an ordinary negligence action or a
medical-malpractice action, see Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich
411; 684 NW2d 864 (2004), whether a plaintiff labels an action as a traditional medical-
malpractice action or a lost-opportunity action cannot control whether the plaintiff’s
action is, in fact, a traditional medical-malpractice action or a lost-opportunity action.
This established principle ensures that the governing law, and not the label the parties
attach to that law, controls the outcome of an action. As the United States Supreme Court
has observed, any other approach would allow a party to avoid the requirements of a
legislative mandate simply by artful pleading. See Allis-Chalmers Corp v Lueck, 471 US
202, 211; 105 S Ct 1904; 85 L Ed 2d 206 (1985). Yet this is exactly what the lead
12
opinion would allow a plaintiff to do in relation to the requirements of MCL
600.2912a(2). Apparently, according to the justices joining the lead opinion, all a
plaintiff need do to avoid the “greater than 50%” requirement in MCL 600.2912a(2) is to
omit the words “lost opportunity” in his complaint. Thus, no artfulness is even required
to nullify this particular statute under their theory.
Indeed, in light of the lead opinion, the discussions in the various opinions in this
case concerning appropriate formulas for determining loss of opportunity seem pointless.
For what plaintiff, and what competent plaintiff’s attorney, would ever plead a lost-
opportunity claim if it could be so easily avoided? Simply put, under the lead opinion’s
rule, would the lost-opportunity doctrine enacted by the Legislature even continue to
exist as a viable legal doctrine in this state? Would a court have any power to apply the
actual law, or would it be required to participate in a charade of the plaintiff’s (and the
lead opinion’s) making? As an example, could a public official plaintiff avoid having to
prove actual malice in a defamation case by simply leaving the words “public official”
out of his pleading? Could a plaintiff suing a public entity entitled to governmental
immunity avoid such immunity by simply omitting that the defendant is a public entity
from his pleading? Could an independent contractor transmute himself into an employee
by simply asserting such in his pleading?
B. WHICHEVER FORMULA BEST SERVES THE PLAINTIFF
The lead opinion offers no explanation, and I can think of none, to support its
alternative “standard percentage increase calculation” formula, other than the fact the
justices signing the lead opinion believe that it somehow indicates that plaintiff has
13
suffered a 300 percent loss of an opportunity! However, none of this really seems to
matter to the justices signing the lead opinion because in the end they conclude that MCL
600.2912a(2) does not require “any particular mathematical formula,” and that if “either
calculation,” or, indeed, some other yet-to-be-discovered calculation, demonstrates a
greater than 50 percent lost opportunity, the plaintiff’s case may proceed, because “the
results must be viewed in the light most favorable to the non-moving party.” This is
simply nonsensical. Although it is true that evidence is to be viewed in a light most
favorable to the non-moving party, Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d
151 (2003), which, as in this case, will almost invariably be the plaintiff, this is the first I
have heard of a judicially created rule that we are to construe an unambiguous law in a
light most favorable to one side or the other. Needless to say, and for reasons that are
apparent, the lead opinion does not bother to cite any authority in support of such a rule.
Is there some logical reason for this rule other than an apparent desire by the lead justices
to place a finger on the scales of justice on behalf of the plaintiff class? Is this rule
limited to lost-opportunity cases or is it equally applicable to all medical-malpractice
actions? Why is such a rule appropriate in a lost-opportunity case, but not in other realms
of the civil law? When is such a default interpretation of the law warranted, and when is
it not? If the law does not require “any particular formula,” why does the lead opinion
devote such attention to identifying the two formulas that it does identify? Why not just
devise a third formula under which the plaintiff will always prevail? Could it possibly be
14
that the lead justices may be confusing their own personal political philosophies with the
dictates of the actual law that they pledged to uphold?8
V. CONCLUSION
As I summarized in Stone:
A “lost opportunity” action is one in which it is possible that the bad
outcome would have occurred even if the patient had received proper
treatment. On the other hand, if there is no question that the proper
treatment would have resulted in a good outcome and the patient has
suffered a bad outcome, the plaintiff possesses a traditional medical-
malpractice action. In order for a traditional medical-malpractice plaintiff
to prevail, the plaintiff must prove that the bad outcome was more probably
than not caused by the defendant’s malpractice. In order for a “lost
opportunity” plaintiff to prevail, the plaintiff must prove that the “lost
opportunity” to achieve a better result was more probably than not caused
by the defendant’s malpractice and that the “lost opportunity” was greater
than 50 percent. In order to determine whether the “lost opportunity” was
greater than 50 percent, the postmalpractice chance of obtaining a better
result must be subtracted from the premalpractice chance; the
postmalpractice chance must then be subtracted from 100; the former
number must be divided by the latter number; and then this quotient must
be multiplied by 100 to obtain a percentage. The calculation can be
summarized as follows:
8
The lead opinion indicates that the justices signing that opinion now support
“Justice CAVANAGH’s dissent in Wickens [v Oakwood Healthcare Sys, 465 Mich 53; 631
NW2d 686 (2001)] that a living person may pursue a claim for loss of opportunity under
the circumstances presented in that case.” What this gratuitous observation has to do
with the instant case, I have not a clue. Do the justices signing the lead opinion also
support Justice CAVANAGH’s dissent in People v Gardner, 482 Mich 41; 753 NW2d 78
(2008), or any one of his other random dissents? Given that three justices previously
supported Justices CAVANAGH’s dissent (Chief Justice KELLY, and Justices CAVANAGH
and WEAVER), by indicating that she now supports Wickens, Justice HATHAWAY seems
to be signaling that there is now majority support in favor of such dissent. Unfortunately,
this type of behavior seems to have become the new majority’s modus operandi--
unnecessarily sowing uncertainty, doubt and confusion into the law by gratuitously
questioning prior cases decided by the former majority. For more discussion on this, see
my dissent in McCormick v Carrier, __ Mich __; __ NW2d __ (2010).
15
(Premalpractice chance) - (Postmalpractice chance)
100 - (Postmalpractice chance)
If this percentage is greater than 50, the plaintiff may be able to prevail; if
this percentage is 50 or less, then the plaintiff cannot prevail. [Stone, 482
Mich at 218-219 (MARKMAN, J., concurring).][9]
As discussed earlier, because it is possible that the bad outcome in this case, i.e.,
suffering a stroke, would have occurred even if plaintiff had received proper treatment,
the instant case is, in fact, a lost-opportunity action, and because plaintiff has raised a
genuine issue of material fact regarding whether he suffered a greater than 50 percent loss
of an opportunity under MCL 600.2912a, I agree with the majority that the judgment of
the Court of Appeals should be reversed and this case should be remanded to the Court of
Appeals for it to consider defendants’ remaining issue on appeal, i.e., the admissibility of
the expert witness testimony proffered by plaintiff.
However, I emphatically disagree with the majority’s incoherent analysis and the
implications of such analysis. The majority effectively transforms a lost-opportunity
action into a traditional medical-malpractice action, for no other apparent reason than to
afford plaintiffs with larger potential recoveries. Instead of limiting a plaintiff’s recovery
9
However, the present status of the law seems to be, pursuant to the lead opinion
and Justice CAVANAGH’s concurring opinion, that if the plaintiff’s lost opportunity is
greater than 50 percent (the calculation of which is anyone’s guess in view of the
different tests of these two opinions), the plaintiff can bring a traditional medical-
malpractice action, but, if the plaintiff’s lost opportunity is not greater than 50 percent,
then the plaintiff can only bring a lost-opportunity action. And, pursuant to Fulton, a
lost-opportunity plaintiff must prove that the difference between his premalpractice
chance of achieving a better result and his postmalpractice chance of achieving a better
result is greater than 50 percentage points. Neither of these conclusions is, to say the
least, consistent with my own reading of the statute.
16
to the opportunity that he or she may have lost as a result of the defendant’s negligence,
the majority now expands the plaintiff’s recovery to include potentially all damages
related to his medical condition, even though the plaintiff may well have suffered the
condition even had he received perfect medical treatment. Thus, having already
undermined the Legislature’s attempt at medical-malpractice reform, see e.g., Bush v
Shabahang, 484 Mich 156; 772 NW2d 272 (2009); Potter v McLeary, 484 Mich 397; 774
NW2d 1 (2009); and ADM File No. 2009-13, 485 Mich __, __ (order entered February
16, 2010), the majority now embarks upon transforming medical-malpractice law in
exactly the opposite direction of that sought by the Legislature. At the same time, the
differing formulas, and non-formulas, adopted by the majority, as well as the internal
inconsistencies in its analysis, will only produce more confusion in an already confused
area of the law, and more litigation in an already heavily litigated area of the law. The
clearest principle of law that can be gleaned from the lead opinion is also the least
principled of its asserted principles-- the adoption of whichever formula best serves the
plaintiff. Not much more than this “principle” really needs to be understood concerning
the essence of the lead opinion’s analysis.
CORRIGAN, J., concurred with MARKMAN, J., with respect to parts IV(A)(2) and
(B) only.
17
STATE OF MICHIGAN
SUPREME COURT
RAYMOND O’NEAL,
Plaintiff-Appellant,
v No. 138180, 138181
ST. JOHN HOSPITAL & MEDICAL
CENTER, RALPH DiLISIO, M.D., and
EFSTATHIOS TAPAZOGLOU, M.D.,
Defendants-Appellees.
CORRIGAN, J. (dissenting).
I fully join Justice YOUNG’s dissenting opinion. I also join part IV(A)(2) and part
IV(B) of Justice MARKMAN’s opinion concurring in the result only.
Maura D. Corrigan
STATE OF MICHIGAN
SUPREME COURT
RAYMOND O’NEAL,
Plaintiff-Appellant,
v Nos. 138180, 138181
ST. JOHN HOSPITAL & MEDICAL
CENTER, RALPH DiLISIO, M.D., and
EFSTATHIOS TAPAZOGLOU, M.D.,
Defendant-Appellees.
YOUNG, J. (dissenting).
Our new Chief Justice established the “agenda” for the newly reconstituted Court
in her recent comments captured by the press:
We the new majority [Chief Justice KELLY and Justices
CAVANAGH, WEAVER, and HATHAWAY] will get the ship off the shoals
and back on course, and we will undo a great deal of the damage that
the Republican-dominated court has done. Not only will we not neglect
our duties, we will not sleep on the bench.[1]
1
She Said, Detroit Free Press, December 10, 2008, p 2A. Chief Justice KELLY
objects that I “continue to quote and misleadingly characterize a statement [she] made
nearly two years ago off the bench.” Ante at ___ (KELLY, C.J., concurring). As my
dissenting opinion in Univ of Michigan Regents v Titan Ins Co, ___ Mich ___; ___
NW2d ___ (2010) (YOUNG, J., dissenting), explains at length, my characterization of her
statement is not misleading. Chief Justice KELLY’s remarks both set an agenda for
undoing the precedents of the previous 10 years and are especially mean-spirited in light
of the political attacks against former Chief Justice TAYLOR during the 2008 campaign.
There are many cases this term that can be said to exemplify the new majority's
commitment to “undo . . . the damage” of the prior majority, but this case certainly
qualifies as a first among equals. Here, not only do my colleagues in the “new majority”
destroy the doctrinal integrity of medical malpractice law, they do so in highly fractured
opinions that will require a Venn diagram for the bench and bar to construct the points at
which four of them agree on any governing principle of law. The new majority has thus
made it more difficult to determine what it has done today. Perhaps this is intended.
Chaos and confusion in the law only promote more litigation. The decisions the
new majority has issued today in this case will thus benefit only those who profit from
litigating medical malpractice cases. The rest of us desire to know what legal rules
control our rights and obligations, and we desire and deserve to know them before we
act. The citizens of this state are entitled to that kind of clarity in the decisions from the
state’s senior court, not the disorder this Court has sown today. Today’s decision returns
this Court to an era in which the bench and bar must decipher this Court’s split opinions
in order to figure out what principles of law they collectively articulate.2 It is no small
challenge to respond in dissent to the various opinions that shred our medical malpractice
laws.
2
See, e.g., Smith v Dep’t of Pub Health, 428 Mich 540; 410 NW2d 749 (1987), for
a model case in the same chaotic vein as today’s split decisions. It exemplifies the era to
which this Court returns in this case.
2
Despite the Legislature’s codification of the traditional obligation to prove that
alleged malpractice “more probably than not” caused a plaintiff’s injury,3 20 years ago, in
Falcon v Mem Hosp, this Court waded into the realm of policy-making and judicially
created the lost opportunity doctrine as an exception to the traditional and statutorily
codified causation standard of proof.4 Even after the Legislature subsequently recognized
the lost opportunity doctrine,5 it also expressly retained the traditional requirement that
“[i]n an action alleging medical malpractice, the plaintiff has the burden of proving that
he or she suffered an injury that more probably than not was proximately caused by the
negligence of the defendant or defendants.”6
Until today, this Court has always made clear that when a traditional medical
malpractice claim was at issue, the more-probable-than-not standard of causation applied
and required the plaintiff to “‘exclude other reasonable hypotheses with a fair amount of
certainty.’”7 However, as the Court did in Falcon, today the majority makes a radical
transformation of medical malpractice law and again jettisons traditional causation
doctrine by equating causation of the injury with risk of the injury. But, unlike in
Falcon, the new majority here does not recognize merely an exception to the traditional
3
1977 PA 272.
4
Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990).
5
See MCL 600.2912a, as amended by 1993 PA 78.
6
MCL 600.2912a(2).
7
Skinner v Square D Co, 445 Mich 153, 166; 516 NW2d 475 (1994) (citation
omitted).
3
malpractice requirement of “but for” causation, it essentially eliminates the traditional
rule entirely by importing that exception into all malpractice cases. In declaring this case
to be a “traditional” medical malpractice claim, the new majority applies the relaxed
causation rules that previously had applied only to lost opportunity claims. After today,
therefore, all malpractice claims will be treated under relaxed causation principles
previously applied only to lost opportunity claims. This is a tectonic shift in our law, for
which there is no basis but the preference of the justices in the new majority to foster
more legal chaos that will promote litigation in this area of the law. This shift is
significant because a traditional medical malpractice injury creates liability for the entire
injury, while a lost opportunity claim creates liability only for that portion of the
increased risk of injury attributable to a defendant.8 Make no mistake: Although Justice
CAVANAGH feigns that he is unaware of the significant change in the law being made in
this case, the reduced burden of persuasion and the broader scope of damages permitted
is the reason the new majority now applies lost opportunity causation principles to all
medical malpractice claims.9
Rather than attempting to give meaning to the words of the statute at issue in this
case, the new majority performs a spectacularly hubristic feat in treating a statutory
8
See Falcon, 436 Mich at 471 (opinion by LEVIN, J.) (“In this case, 37.5 percent
times the damages recoverable for wrongful death would be an appropriate measure of
damages.”).
9
See n 52 of this opinion for further elaboration on the significance of Justice
CAVANAGH’s repudiation of the position he took just two years ago in Stone v
Williamson, 482 Mich 144, 175-177; 753 NW2d 106 (2008) (opinion by CAVANAGH, J.).
4
medical malpractice claim as though it were a mere matter of common law and thus
subject to its revisionary powers. What is more, these justices have decided to use those
extraconstitutional powers to circumvent the Legislature’s explicit decision to retain
traditional causation rules. The new majority has chosen “free form” to change the law to
match its policy preference that no legal doctrines shall exist to eliminate any claim of
medical malpractice—even those doctrines codified by our Legislature to accomplish this
very goal.
For someone who campaigned on the theme that more of this Court’s precedent
should be preserved,10 we are surprised at how eagerly Justice HATHAWAY has striven in
this case to overturn precedent—even to the extent of offering her own new views that
precedent is not a serious barrier to any change desired by the new majority.11
The dicta in Justice HATHAWAY’s opinion bears out her newfound position on
stare decisis because her opinion purports to opine on “the full scope and extent of loss-
of-opportunity claims,”12 even while denying that such a claim is involved in this case.
In doing so, Justice HATHAWAY engages in a completely gratuitous assault on this
10
Berg, Hathaway attacks, Michigan Lawyers Weekly, October 27, 2008
(“‘People need to know what the law is,’ Hathaway said. ‘I believe in stare decisis.
Something must be drastically wrong for the court to overrule.’”); Lawyers’ election
guide: Judge Diane Marie Hathaway, Michigan Lawyers Weekly, October 30, 2006
(quoting Justice HATHAWAY, then running for a position on the Court of Appeals, as
saying that “[t]oo many appellate decisions are being decided by judicial activists who
are overturning precedent”).
11
See, e.g., Univ of Mich Regents v Titan Ins Co, ___ Mich ___, ___; ___ NW2d
___ (2010) (HATHAWAY, J., concurring).
12
Ante at ___ (opinion by HATHAWAY, J.).
5
Court’s decision in Wickens v Oakwood Healthcare Sys.13 Wickens involved a claim for
the lost opportunity to survive, and it was brought by a living plaintiff—someone who
had not yet lost her opportunity to survive. No justice even contends that plaintiff in this
case has asserted a claim for the lost opportunity to survive, and therefore it is completely
unnecessary for Justice HATHAWAY to opine on whether the majority or dissent correctly
interpreted the question whether a living plaintiff could recover for the loss of an
opportunity to survive.
Ordinarily, this fact would hinder any justice from engaging in a discussion on the
scope of a claim for the lost opportunity to survive that is not implicated in the case
before the Court. Justice HATHAWAY, though, is not constrained to consider only the
legal issues she claims are involved here because, consistent with the new majority’s
“agenda,”14 she has a desire to overrule in one fell swoop as many cases decided by the
“Republican-dominated court” as she can. Unfazed by the inconvenient fact that Wickens
is irrelevant to any question posed by this case, Justice HATHAWAY’s opinion observes
that it “agree[s] with Justice CAVANAGH’S partial dissent in Wickens . . . .”15 Such dicta
do not yet operate to overturn this Court’s decision in Wickens. Nevertheless, given that
Justice HATHAWAY is now the fourth sitting justice on this Court to support the partial
13
Wickens v Oakwood Healthcare Sys, 465 Mich 53; 631 NW2d 686 (2001).
14
See the text accompanying n 1 of this opinion.
15
Ante at ___ (opinion by HATHAWAY, J.).
6
dissenting opinion in Wickens, it is safe to conclude that the majority opinion in Wickens
has, more probably than not, lost a substantial part of its opportunity to survive.16
Finally, the new majority overrules the Court of Appeals decision in Fulton v
William Beaumont Hosp to the extent it is inconsistent with their opinions.17 However,
again, the new majority overreaches; Fulton applies only to lost opportunity cases, not to
traditional medical malpractice cases, and the new majority’s decision to convert claims
previously considered lost opportunity claims into traditional medical malpractice claims
serves to eliminate the application of Fulton. The new majority’s deliberate decision to
repudiate Fulton in this expansive manner, provides further support for my claim that it
now applies lost opportunity principles to all medical malpractice claims.
For these reasons and more, I vigorously dissent. I believe that the new majority
has intentionally mischaracterized this as a “traditional” medical malpractice claim
because plaintiff’s expert testimony unquestionably established that the alleged
malpractice was not the “but for” cause of plaintiff’s injury. Were the new majority’s
characterization of this case as a traditional medical malpractice claim accurate, I would
affirm for failure of proofs. However, because I believe this to be a lost opportunity case,
16
One could read this dicta in Justice HATHAWAY’s opinion as a signal that the
new majority will overrule Wickens. However, the majority has already so signaled in its
order granting leave to appeal in Edry v Adelman, 485 Mich 901 (2009). Edry was
decided on narrow evidentiary grounds, Edry v Adelman, 486 Mich ___; ___ NW2d ___
(2010), but, as Justice HATHAWAY’s decision in this case exemplifies, its decision was
decidedly not a reaffirmation of the continued vitality of Wickens.
17
Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002).
7
I would vacate as improvidently granted our September 30, 2009, order granting leave to
appeal. I continue to adhere to the position stated in the lead opinion in Stone v
Williamson that the second sentence of MCL 600.2912a(2) codifying the lost opportunity
remedy is unenforceable as enacted.18 Because the Legislature has not clarified the
intention of its 1993 amendment of § 2912a(2), vacating the grant order is the most
appropriate course of action.
I. FACTS AND PROCEDURAL HISTORY
Because none of the opinions that collectively create a majority elaborates on the
facts necessary to decide this case, I present the following complete recitation of the
pertinent facts and procedural history of this case.
Plaintiff, Raymond O’Neal, suffers from sickle cell anemia, a genetic condition
that produces an increased amount of abnormally shaped red blood cells in his
bloodstream.19 In January 2003, plaintiff’s progressively worsening chest pain developed
into acute chest syndrome (ACS), a known complication of sickle cell anemia.20 To treat
ACS, a patient must undergo blood transfusions to reduce the amount of abnormal red
blood cells. The difference between and effectiveness of two types of blood
transfusions—standard transfusions and exchange transfusions—is at issue in this case.
Standard transfusions add healthy red blood cells to the patient’s existing blood supply
18
Stone, 482 Mich at 144 (opinion by TAYLOR, C.J.).
19
Beers & Berkow, eds, The Merck Manual of Diagnosis and Therapy (17th ed)
(Whitehouse Station, NJ: Merck & Co, Inc, 1999), pp 877-878.
20
Id. at 879.
8
and thereby reduce the patient’s percentage of abnormal red blood cells. Exchange
transfusions are more complicated, but they also more aggressively treat the blood
abnormality because they physically remove existing abnormal red blood cells and
replace them with healthy red blood cells.
On January 23 through 24, 2003, plaintiff received a standard transfusion of three
units of blood cells. He received two additional units of blood cells in another standard
transfusion on January 28, 2003. Plaintiff suffered a stroke on the right side of his brain
on February 1, 2003. Plaintiff received a third transfusion—an exchange transfusion—on
February 2 through 3, 2003. Plaintiff’s condition stabilized after this final transfusion,
but he alleged permanent injury as a result of the stroke, including partial paralysis of his
left leg and loss of function of his left hand and arm.
Plaintiff filed the instant medical malpractice complaint, alleging that defendants
failed to comply with the appropriate standard of care, which required them to “arrange
for exchange transfusions” to treat plaintiff’s ACS on or before January 28, 2003. He
also alleged that “[p]erformance of [an] exchange transfusion prior to the . . . stroke
would have prevented the stroke from occurring.”
Plaintiff retained and deposed three expert witnesses to testify on his behalf on the
issue of causation. Dr. John Luce, a pulmonary care specialist, testified that reducing
plaintiff’s abnormal hemoglobin count to under 30 percent would have made it “probable
that he would not have” suffered the stroke, although he acknowledged that plaintiff still
could have suffered the stroke even with such a reduced abnormal hemoglobin count.
Because no data existed on the frequency of strokes in adult sickle cell patients, Dr.
9
Richard Stein, a hematologist, extrapolated from existing data on the effects of aggressive
transfusion therapy on children with sickle cell disease. He testified that “more likely
than not” plaintiff would have avoided a stroke if he had received aggressive transfusion
therapy, what plaintiff alleged is the appropriate standard of care. Dr. Griffin Rodgers,
also a hematologist, provided the most detailed testimony regarding the causal
relationships between the stroke, plaintiff’s underlying medical condition, and
defendants’ alleged malpractice. He explained that sickle cell patients generally have a
baseline risk of stroke that is significantly higher than the average population. Moreover,
plaintiff’s ACS further increased his baseline risk of stroke to between 10 and 20 percent.
Dr. Rodgers testified that, with aggressive transfusion therapy, the plaintiff’s risk of
stroke would have “been cut in half,” that is, to between 5 and 10 percent. Stated
otherwise, plaintiff’s opportunity to avoid a stroke would have been between 90 and 95
percent with aggressive transfusion therapy, but it was reduced to between 80 and 90
percent without aggressive transfusion therapy. Thus, under either treatment regime,
plaintiff’s experts testified that it was more likely than not that plaintiff would avoid a
stroke.
Defendants moved for summary disposition, arguing that Dr. Rodgers’s testimony
regarding plaintiff’s lost opportunity to avoid a stroke failed to satisfy the requirement of
MCL 600.2912a(2)21 and Fulton v William Beaumont Hosp,22 that the opportunity to
21
MCL 600.2912a(2) provides, in pertinent part: “In an action alleging medical
malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an
opportunity to achieve a better result unless the opportunity was greater than 50%.”
10
achieve a better result must decrease by more than 50 percentage points. The trial court
denied defendants’ motion, noting that defendants “[didn’t] have a clue about what
[Fulton] says.”
After the Court of Appeals denied defendants’ interlocutory application for leave
to appeal, in lieu of granting leave to appeal, we remanded this case to the Court of
Appeals for consideration as on leave granted.23 On remand, the Court of Appeals
reversed the trial court’s denial of summary disposition in an unpublished opinion per
curiam.24 The majority opinion held that plaintiff’s claim was a lost opportunity claim,
that Fulton required the loss of opportunity to be greater than 50 percentage points, and
that the loss of opportunity here was, at most, 15 percentage points. The concurring
opinion concluded that plaintiff also failed to present sufficient evidence of proximate
causation because his “preexisting medical condition” precluded him from satisfying “his
burden of establishing the existence of a genuine factual dispute concerning whether
defendants’ alleged professional negligence ‘more probably tha[n] not’ proximately
caused his stroke.”25
We granted leave to appeal and directed the parties to brief:
22
Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002).
23
O’Neal v St John Hosp & Med Ctr, 477 Mich 1087 (2007).
24
O’Neal v St John Hosp & Med Ctr, unpublished opinion per curiam of the Court
of Appeals, issued November 4, 2008 (Docket Nos. 277317 and 277318).
25
Id. at 2 (JANSEN, J., concurring).
11
(1) whether the requirements set forth in the second sentence of
MCL 600.2912a(2) apply in this case; (2) if not, whether the plaintiff
presented sufficient evidence to create a genuine issue of fact with regard to
whether the defendants’ conduct proximately caused his injury; or (3) if so,
whether Fulton v William Beaumont Hosp, 253 Mich App 70 (2002), was
correctly decided, or whether a different approach is required to correctly
implement the second sentence of § 2912a(2).[26]
II. LEGAL BACKGROUND
The lead opinion in Stone aptly summarized the pertinent legal background
relevant to this case, including the distinction between traditional malpractice claims and
lost opportunity claims that the majority now eviscerates:
In the first Michigan case to refer to the legal theory of “the value of
lost chance,” the Court of Appeals explained: “This theory is potentially
available in situations where a plaintiff cannot prove that a defendant’s
actions were the cause of his injuries, but can prove that the defendant’s
actions deprived him of a chance to avoid those injuries.” Vitale v Reddy,
150 Mich App 492, 502; 389 NW2d 456 (1986). The Court in Vitale noted
that allowing such claims would expand existing common law, and it
declined to do so, stating that such a decision “is best left to either the
Supreme Court or the Legislature.” Id. at 504. . . .
In accord with this analysis, this Court has stated: “The lost
opportunity doctrine allows a plaintiff to recover when the defendant’s
negligence possibly, i.e., [by] a probability of fifty percent or less, caused
the plaintiff’s injury.” Weymers v Khera, 454 Mich 639, 648; 563 NW2d
647 (1997) (emphasis added). The Weymers Court aptly described the lost-
opportunity doctrine as “the antithesis of proximate cause.” Id. In cases in
which the plaintiff alleges that the defendant’s negligence more probably
than not caused the injury, the claim is one of simple medical malpractice.
Id. at 647-648.
In Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990), this
Court first recognized a claim for lost opportunity to survive. Falcon was a
wrongful-death case in which this Court allowed a claim to go forward
26
O’Neal v St John Hosp & Med Ctr, 485 Mich 901 (2009).
12
even though the plaintiff’s granddaughter would have had only a 37.5
percent chance of surviving a medical accident had she received proper
care. Because proper medical procedures had not been followed, the
granddaughter’s chance of surviving the accident went to essentially zero.
The lead opinion in Falcon admitted that the plaintiff could not show that
the malpractice had more likely than not caused her granddaughter’s death,
but could show that it had caused her granddaughter to lose a “substantial
opportunity of avoiding physical harm.” Id. at 470 (LEVIN, J.). The lead
opinion disavowed the traditional rule that requires a plaintiff to show that,
but for the defendant’s negligence, the patient would not have suffered the
physical harm, saying that the “more probable than not standard, as well as
other standards of causation, are analytic devices—tools to be used in
making causation judgments.” Id. at 451. Instead, despite the fact that the
plaintiff could not show that the doctor’s malpractice had more probably
than not caused her granddaughter’s death, the plaintiff had a claim because
the malpractice did cause her granddaughter harm. The 37.5 percent
chance for a better outcome was “hardly the kind of opportunity that any of
us would willingly allow our health care providers to ignore.” Id. at 460.
This harm occurred before the granddaughter’s death, at the moment
“[w]hen, by reason of the failure to implement [certain] procedures,” she
was denied any opportunity of living. Id. at 469, 471 n 44. The lead
opinion characterized its holding as requiring the plaintiff to show, more
probably than not, that the malpractice reduced the opportunity of avoiding
harm: “failure to protect [the granddaughter’s] opportunity of living.” Id. at
469. Loss of her 37.5 percent opportunity of living, the lead opinion stated,
“constitutes a loss of a substantial opportunity of avoiding physical harm.”
Id. at 470.
The lead opinion in Falcon thus concluded that the loss-of-
opportunity claim accrued not when the patient died, but at the moment she
went from having a 37.5 [percent] chance of survival to having no chance
of survival. Under this theory, a plaintiff would have a cause of action
independent of that for the physical injury and could recover for the
malpractice that caused the plaintiff to go from a class of patients having a
“good chance” to one having a “bad chance.” Without this analysis, the
plaintiff in Falcon would not have had a viable claim because it could not
have been shown that the defendant more probably than not caused the
physical injury. Until Falcon, medical-malpractice plaintiffs alleging that
the defendant’s act or omission hastened or worsened the injury (such as by
failing to diagnose a condition) had to prove that the defendant’s
malpractice more probably than not was the proximate cause of the injury.
See, e.g., Morgan v Taylor, 434 Mich 180; 451 NW2d 852 (1990);
13
Naccarato v Grob, 384 Mich 248, 252; 180 NW2d 788 (1970); Skeffington
v Bradley, 366 Mich 552; 115 NW2d 303 (1962).
When the Court decided Falcon, MCL 600.2912a read:
“In an action alleging malpractice the plaintiff shall have the burden
of proving that in light of the state of the art existing at the time of the
alleged malpractice:
“(a) The defendant, if a general practitioner, failed to provide the
plaintiff the recognized standard of acceptable professional practice in the
community in which the defendant practices or in a similar community, and
that as a proximate result of the defendant failing to provide that standard,
the plaintiff suffered an injury.
“(b) The defendant, if a specialist, failed to provide the recognized
standard of care within that specialty as reasonably applied in light of the
facilities available in the community or other facilities reasonably available
under the circumstances, and as a proximate result of the defendant failing
to provide that standard, the plaintiff suffered an injury.”
Three years after Falcon, the Legislature enacted 1993 PA 78,
amending MCL 600.2912a to add the second subsection. In its entirety, the
statute as amended reads:
“(1) Subject to subsection (2), in an action alleging malpractice, the
plaintiff has the burden of proving that in light of the state of the art
existing at the time of the alleged malpractice:
“(a) The defendant, if a general practitioner, failed to provide the
plaintiff the recognized standard of acceptable professional practice or care
in the community in which the defendant practices or in a similar
community, and that as a proximate result of the defendant failing to
provide that standard, the plaintiff suffered an injury.
“(b) The defendant, if a specialist, failed to provide the recognized
standard of practice or care within that specialty as reasonably applied in
light of the facilities available in the community or other facilities
reasonably available under the circumstances, and as a proximate result of
the defendant failing to provide that standard, the plaintiff suffered an
injury.
14
“(2) In an action alleging medical malpractice, the plaintiff has the
burden of proving that he or she suffered an injury that more probably than
not was proximately caused by the negligence of the defendant or
defendants. In an action alleging medical malpractice, the plaintiff cannot
recover for loss of an opportunity to survive or an opportunity to achieve a
better result unless the opportunity was greater than 50%.” [New language
emphasized.]
As can be seen, the Legislature retained the already-existing
language, making it subsection 1 of the statute. Both subsection 1(a) and
subsection 1(b) require the plaintiff to show that, “as a proximate result of
the defendant failing to provide [the appropriate standard of practice or
care], the plaintiff suffered an injury.” Further, the Legislature added
subsection 2. Specifically, the first sentence of this new subsection codifies
and reiterates the common-law requirement that a plaintiff show that the
defendant’s malpractice more probably than not caused the plaintiff’s
injury. The second sentence of subsection 2 adds that, in medical-
malpractice cases, a “plaintiff cannot recover for loss of an opportunity to
survive or an opportunity to achieve a better result unless the opportunity
was greater than 50%.” However, one must keep in mind that the relevant
caselaw when subsection 2 was enacted held that the lost-opportunity
doctrine applies “in situations where a plaintiff cannot prove that a
defendant’s actions were the cause of his injuries . . . .” Vitale, [150 Mich
App] at 502 (emphasis added). That is, the first sentence of subsection 2
requires plaintiffs in every medical-malpractice case to show the
defendant’s malpractice proximately caused the injury while, at the same
time, the second sentence refers to cases in which such proof not only is
unnecessary, but is impossible.[27]
Thus, in contrast with traditional malpractice claims, the very nature of the lost
opportunity doctrine allows a plaintiff to recover in the absence of proximate causation
between the alleged malpractice and the physical injury suffered. The lead opinion in
Stone determined that “the two sentences of subsection 2 create a paradox, allowing
27
Stone, 482 Mich at 152-157 (opinion by TAYLOR, C.J.).
15
claims in the second sentence while precluding them by the first sentence.”28 In this case,
Justice HATHAWAY’s opinion and Justice CAVANAGH’s concurring opinion altogether
avoid the implications of this paradox by essentially applying the lost opportunity
analysis (which never required “but for” causation) to a traditional medical malpractice
claim that, until today, always required “but for” causation. In doing so, the new
majority radically alters proximate causation doctrine by casting aside the traditional
component of “but for” causation and by replacing causation of the injury with
consideration only of the increased risk of the injury. This is a revolutionary change in
our law and represents a change that not even the Falcon Court dared to make.
A necessary component of proximate causation is “but for” causation, or causation
in fact.29 As this Court has previously held:
As a matter of logic, a court must find that the defendant’s
negligence was a cause in fact of the plaintiff’s injuries before it can hold
that the defendant’s negligence was the proximate or legal cause of those
injuries.
Generally, an act or omission is a cause in fact of an injury only if
the injury could not have occurred without (or “but for”) that act or
omission. While a plaintiff need not prove that an act or omission was the
sole catalyst for his injuries, he must introduce evidence permitting the jury
to conclude that the act or omission was a cause.
It is important to bear in mind that a plaintiff cannot satisfy this
burden by showing only that the defendant may have caused his injuries.
Our case law requires more than a mere possibility or a plausible
28
Id. at 157.
29
Weymers v Khera, 454 Mich 639, 647; 563 NW2d 647 (1997), citing Skinner,
445 Mich at 162-163.
16
explanation. Rather, a plaintiff establishes that the defendant’s conduct was
a cause in fact of his injuries only if he “set[s] forth specific facts that
would support a reasonable inference of a logical sequence of cause and
effect.”[30]
As Justice CAVANAGH has himself previously concluded, plaintiffs must present
evidence of proximate causation that “‘must exclude other reasonable hypotheses with a
fair amount of certainty.’”31 By allowing plaintiff’s claim to proceed as a traditional
medical malpractice claim, the new majority today eviscerates the distinction between the
weaker causation allowed in lost opportunity claims and the “but for” causation that has
always been required in traditional medical malpractice claims.
III. APPLICATION
A. PLAINTIFF ASSERTED A LOST OPPORTUNITY CLAIM
BECAUSE THERE IS NO “BUT FOR” CAUSATION BETWEEN THE
ALLEGED MALPRACTICE AND THE PHYSICAL INJURY SUFFERED.
As stated, the crux of a lost opportunity claim is that a plaintiff cannot show that,
more probably than not, the alleged malpractice proximately caused his injuries. This is
because a plaintiff need only show that the alleged malpractice merely reduced his
opportunity to achieve a better result. Accordingly, whether a claim is a traditional
malpractice claim or a claim for the loss of an opportunity to achieve a better result
depends on whether the alleged malpractice proximately caused the alleged injury.
30
Craig v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004), quoting
Skinner, 445 Mich at 174.
31
Skinner, 445 Mich at 166 (CAVANAGH, C.J.) (citation omitted).
17
Contrary to the new majority’s position, this case presents a prototypical lost
opportunity claim because no proximate causation exists between the alleged malpractice
and plaintiff’s physical injury. Plaintiff’s experts testified that plaintiff’s underlying
medical condition—sickle cell anemia complicated by ACS—increased his risk of stroke
above that of a healthy person and even above that of a sickle cell patient who has not
developed ACS. Plaintiff’s underlying medical condition created a heightened chance of
suffering a stroke, with or without the alleged malpractice. As Dr. Rogers, who provided
the most detail of plaintiff’s causation experts, testified, plaintiff would have had a 5 to
10 percent chance of suffering a stroke even if he had been treated according to the
plaintiff’s proposed standard of care.
The evidence here, therefore, does not “‘exclude other reasonable hypotheses
[of the cause of injury] with a fair amount of certainty,’”32 as is required to prove “but
for” causation in a traditional medical malpractice action. Plaintiff’s expert testified that,
in the absence of the alleged medical malpractice, plaintiff had between a 90 percent and
95 percent chance of avoiding a stroke. The alleged medical malpractice reduced
plaintiff’s chance of avoiding a stroke to between 80 percent and 90 percent. Even
looking at the evidence in the light most favorable to the plaintiff, there is no basis for a
fact-finder to conclude that defendants’ actions more probably than not caused plaintiff’s
injury. But this is unimportant because the new majority now only requires causation for
the increased risk of injury.
32
Id. (emphasis added).
18
Simply stated, the plaintiff has not asserted, and neither Justice HATHAWAY’s
opinion nor Justice CAVANAGH’s concurring opinion assert—that the alleged medical
malpractice increased his chance of suffering a stroke by the more than 50 percentage
points required to prove proximate causation.33 This fact irrefutably establishes that
the plaintiff asserts a lost opportunity claim, not a traditional medical malpractice
claim.
B. THE CONCLUSION THAT PLAINTIFF HAS ASSERTED A TRADITIONAL
MEDICAL MALPRACTICE CLAIM AND HAS SATISFIED THE REQUIREMENTS
OF “BUT FOR” CAUSATION IS A DANGEROUS DEPARTURE FROM
TRADITIONAL CAUSATION REQUIREMENTS.
As stated, in determining that plaintiff’s claim is a traditional medical malpractice
claim, the new majority today applies relaxed causation rules that previously had applied
only to lost opportunity claims—claims involving an increased risk of injury that did not
rise to the level of proximate causation. These relaxed rules are inconsistent with the
position that three of the justices of the new majority have taken previously on what
evidence is required for a plaintiff to prove a traditional medical malpractice claim.34
Such claims have always required “but for” causation. After today’s shift, therefore, all
33
See Falcon v Mem Hosp, 436 Mich 443, 450; 462 NW2d 44 (1990) (opinion by
LEVIN, J.) (characterizing the traditional approach to “but for” causation as “measured as
more than fifty percent” and concluding that a 37.5 percentage point reduction in the
opportunity for surviving could not prove “but for” causation). Thus no one, not even
those in the Falcon decision who created an exception, has ever required less than a
“more than 50 percentage point” change in order to establish a traditional medical
malpractice claim. Just two years ago, Justices CAVANAGH, WEAVER, and KELLY
reaffirmed this position. See Stone, 482 Mich at 175-177 (opinion by CAVANAGH, J.).
34
See id.
19
malpractice claims will be established using principles that could only have applied to
lost opportunity claims. Few can miss how significant a departure this is from all of this
Court’s medical malpractice jurisprudence that preceded this case.
1. THREE JUSTICES TODAY REPUDIATE THE TRADITIONAL CAUSATION
PRINCIPLES THAT THEY REAFFIRMED JUST TWO YEARS AGO.
The new majority appears to be of the view that the less said about its radical
rewriting of this statute the better. When a judge is “doing” policy rather than
interpreting the law, it is apparently not required to maintain a consistent position or
explain a fundamental change in position. Certainly, such disclosures are probably not
desired by jurists whose positions are undergoing radical “revision.” I commend the
reader to compare the positions taken today by Chief Justice KELLY and Justices
CAVANAGH and WEAVER with those taken just two years ago in Stone.35 These three
justices now repudiate the traditional proximate cause requirements that they previously
recognized and applied at that time.
In Stone, Justice CAVANAGH, writing for himself and Justices KELLY and
WEAVER, held that a traditional medical malpractice action required “but for” causation.
He specifically posed a hypothetical example in which a plaintiff’s opportunity to achieve
a better result was reduced by 40 percentage points, from 80 percent to 40 percent. Thus,
this hypothetical plaintiff’s risk of suffering a bad result increased from 20 percent to 60
percent as a result of the alleged medical malpractice. According to Justice CAVANAGH
35
See id. Justice CAVANAGH at least has the forthrightness to indicate that he
today repudiates this position. Ante at ___ (CAVANAGH, J., concurring).
20
just two years ago, this hypothetical plaintiff “could not meet the more-probably-than-not
standard of causation . . . .”36 Today these same three justices declare that a much
smaller reduction in the opportunity to achieve a better result—from 90 to 95 percent to
80 to 90 percent—now satisfies the causation standard of a traditional malpractice case.
This is not a product of the rule of law. This is a naked display of judicial whimsy and
aggressive policy-making.
2. JUSTICE HATHAWAY’S OPINION MISREADS CASELAW TO REDEFINE
PROXIMATE CAUSE AND TO DO AWAY WITH THE TRADITIONAL
REQUIREMENT THAT A PLAINTIFF PROVE A “BUT FOR” CAUSE UNDER
THE MORE-PROBABLE-THAN-NOT STANDARD
Justice HATHAWAY’s opinion places much emphasis on the fact that our caselaw
indicates that “a plaintiff need not prove that an act or omission was the sole catalyst for
his injuries,”37 in recognition that any given injury may have more than one proximate
cause. It then uses this fact of logic and causation to create a false distinction that
radically refashions proximate causation and negates the traditional requirement—as
previously articulated even by Justice CAVANAGH—that proof of “but for” causation
must “exclude other reasonable hypotheses with a fair amount of certainty.”38
The proposition that any injury may have more than one proximate cause is an
unremarkable one for anyone who understands the principles of “but for” causation. An
36
Stone, 482 Mich at 177 (opinion by CAVANAGH, J.).
37
Craig, 471 Mich at 87.
38
Skinner, 445 Mich at 166 (emphasis added; quotation marks and citation
omitted).
21
injury that involves a series of individual occurrences before it is manifested will have
multiple “but for” causes. However, in such a case, each of these causes must be
proved to have produced the injury under the more-probable-than-not standard, not
merely proved to have increased the risk of injury, as this case does.
One of this Court’s cases on traditional causation, Brackins v Olympia, Inc,
illustrates this point.39 The plaintiff, a roller skating instructor, fell while roller skating at
the defendant’s rink. He alleged that another skater had clipped his right skate and that,
“as a result his skates became locked with his right foot and skate behind his left skate.”40
Furthermore, the plaintiff claimed that he could not have prevented the fall “because his
left skate struck a ridge or inequality in the floor of the rink . . . .”41 The defendant rink
owner sought summary disposition because it claimed that the proximate cause of the
plaintiff’s injury was the other skater clipping the plaintiff’s skate, not the flaw in the rink
surface. To be sure, the other skater’s action was a “but for” cause of the plaintiff’s
injury, as the injury would not have occurred without it. However, this Court concluded
that the skating rink surface was also a proximate cause of the plaintiff’s injury:
Defendant is not absolved from liability for its negligence because of
the act of the other skater . . . . The proofs support the conclusion . . . that
plaintiff fell because of the roughness of, or the inequality in, the floor of
the skating rink. Defendant’s negligence, if not the sole proximate cause of
the accident, was, in any event, a proximate cause.[42]
39
Brackins v Olympia, Inc, 316 Mich 275; 25 NW2d 197 (1946).
40
Id. at 277.
41
Id.
42
Id. at 283 (emphasis added).
22
Each of the “but for” causes in Brackins could be proved with near certainty.
Accordingly, the Brackins Court concluded that both “but for” causes more probably than
not directly caused the plaintiff’s injury, and therefore it affirmed the jury’s award of
damages to the plaintiff against the defendant. Nevertheless, in recognizing that an
injury may have more than one “but for” cause, this Court has always, until now,
required the traditional burden of proving that each particular “but for” cause more
probably than not produced the injury.43
The dual “but for” causes in Brackins are very different from the situation in the
instant case. Here, all that plaintiff can show is that defendants’ alleged malpractice
exacerbated plaintiff’s preexisting sickle cell anemia to the extent of increasing his risk of
43
Justice HATHAWAY claims that this position “would allow recourse for the
negligent actions of medical providers only in those instances in which one provider’s
conduct is at issue and only when no preexisting medical condition exists.” Ante at ___
(opinion by HATHAWAY, J.). This is patently false. First, as stated, there can be multiple
“but for” causes for a particular injury, including the negligent conduct of multiple
medical providers. Each of these hypothetical negligent acts, however, must themselves
be “but for” causes, like the chain reaction of events that caused the roller skating injury
in Brackins. Second, a medical provider’s negligence may, more probably than not, be a
“but for” cause of an injury even when the plaintiff has a preexisting condition. This was
the very situation that this Court encountered in Stone. The plaintiff in Stone alleged that
a timely diagnosis of an aortic aneurysm would have given him a 95 percent chance of
attaining a good result. Instead, his aneurysm ruptured, requiring emergency surgery and
ultimately amputation of his legs. According to the plaintiff’s experts, “misdiagnosed
patients whose aneurysms rupture have only a 10 percent chance to achieve a good
result.” Stone, 482 Mich at 148 (opinion by TAYLOR, C.J.). Thus, even though the
plaintiff had a preexisting medical condition, the defendants’ misconduct increased the
plaintiff’s probability of suffering a bad result from 5 percent to 90 percent. This
increase of 85 percentage points provided a sufficient factual basis to defeat the
defendant’s motion for judgment notwithstanding the verdict.
23
suffering a stroke by between 5 and 10 percentage points. Plaintiff has simply not proved
that the alleged malpractice caused his stroke, nor has he “exclude[d]” the “other
reasonable hypothes[i]s”—his preexisting sickle cell anemia—“with a fair amount of
certainty.”44 Thus, plaintiff’s preexisting sickle cell anemia could well have operated to
injure him even in the absence of defendants’ alleged malpractice.
3. JUSTICE HATHAWAY’S AND JUSTICE CAVANAGH’S OPINIONS TAKE
INAPPROPRIATE LIBERTIES WITH PLAINTIFF’S EXPERT STATISTICAL
EVIDENCE BY FAILING TO COMPARE LIKE WITH LIKE
Even in applying their radical new approach to proximate causation, the justices in
the new majority only reach their desired result by manipulating the expert’s statistical
evidence in ways inconsistent with the expert’s own use of the statistical evidence and,
similarly, in ways inconsistent with the uncontroversial and essential principle of
statistical methodology of comparing “like with like.” The new majority’s inappropriate
use of the statistical evidence presented in this case provides further proof that it is
engaging in result-driven jurisprudence. Only this motivation could support such a
mathematically illiterate presentation.
Justice HATHAWAY’s opinion declares, under the guise of requiring “results [to] be
viewed in the light most favorable to the nonmoving party,”45 that any mishmash of
figures that yields a result of greater than 50 percent will establish proximate causation
between the alleged malpractice and plaintiff’s injury sufficient to defeat summary
44
Skinner, 445 Mich at 166 (quotation marks and citation omitted).
45
Ante at ___ (opinion by HATHAWAY, J.).
24
disposition. Thus, while Justice HATHAWAY’s opinion expressly declines to adopt any
particular mathematical formula for determining whether proximate cause exists in a
given case, it essentially adopts every formula that an attorney or judge can manufacture.
This is not a serious analysis—“statistical” or otherwise. Justice HATHAWAY’s opinion is
simply an invitation for the artful manipulation of probability figures and calls to mind
the adage Mark Twain once attributed to Benjamin Disraeli, that there are “three kinds of
lies: lies, damned lies, and statistics.”46
Two of the formulas that Justice HATHAWAY’s opinion identifies by name bear
closer analysis. Her opinion indicates that the evidence in this case can be “viewed as a
standard percentage increase calculation. . . .”47 The flaw in using this “standard
percentage increase calculation” in a traditional medical malpractice case is obvious.
Such a calculation would turn the facts of Falcon—a case in which no justice
believed that the plaintiff could prove “but for” causation using a more-probable-
than-not standard48—into a traditional medical malpractice case.
46
Twain, My Autobiography: “Chapters” from the North American Review
(Mineola, NY: Dover Publications, Inc, 1999), p 208.
47
Ante at ___ (opinion by HATHAWAY, J.).
48
Falcon, 436 Mich at 460 (opinion by LEVIN, J.) (“[I]t cannot be said, more
probably than not, that [defendant] caused [plaintiff’s] death.”); id. at 472-473 (BOYLE,
J., concurring) (“I concur in the recognition of ‘lost opportunity to survive’ as injury for
which tort law should allow recovery in proportion to the extent of the lost chance of
survival . . . provided that the negligence of the defendant more probably than not caused
the loss of opportunity.”); id. at 473 (RILEY, C.J., dissenting) (“[I]t is uncontested that the
plaintiff cannot show that defendant’s negligence caused the decedent’s death . . . .”).
25
In Falcon, the plaintiff’s decedent, Nena Falcon, suffered an amniotic fluid
embolism, “an unpreventable complication” of childbirth.49 A woman who suffers this
complication has a 62.5 percent probability of dying, even if it is treated immediately.
Because of alleged malpractice, however, Nena Falcon’s amniotic fluid embolism was
not treated immediately. This alleged malpractice increased her chance of death to 100
percent.50 Under the “standard percentage increase calculation” used by Justice
HATHAWAY to support her radical departure from requiring traditional proximate
causation in this case, the defendant’s alleged malpractice in Falcon was responsible for
increasing Nena Falcon’s chance of dying by 37.5 percentage points over the preexisting
62.5 percentage point chance of dying. This represents a 60 percent increase in her
chance of dying (37.5/62.5), and satisfies Justice HATHAWAY’s conclusion that any
formula that reaches the magic number of more than 50 percent is satisfactory. Justice
HATHAWAY’s opinion has, therefore, taken a judicially created aberration of proximate
causation, Falcon, and applied it so that she can satisfy the proximate cause component
of a traditional medical malpractice claim. Fortunately, Justice HATHAWAY’s opinion is
the only opinion that adopts this approach, so this “standard percentage increase
calculation” does not, therefore, have support from a majority of this Court.
However, a second approach used by Justice HATHAWAY that I wish to discuss
does appear to have the support from a majority of this Court—what Justice HATHAWAY
49
Falcon, 436 Mich at 454 (opinion by LEVIN, J.).
50
Id. at 454 n 16.
26
calls the “standard percentage decrease calculation.”51 This approach takes the pre- and
postmalpractice probabilities of suffering the injury and calculates what proportion of the
postmalpractice probability of injury is attributable to the malpractice. The percentage
approach is found nowhere in this Court’s proximate cause jurisprudence, yet both
Justice HATHAWAY’s opinion and Justice CAVANAGH’s concurring opinion apply it to
conclude that plaintiff has made the requisite showing of probable cause to defeat
defendant’s motion for summary disposition.
As stated, three of the justices who support this approach do so in opposition to
their previously stated positions.52 Moreover, Justice HATHAWAY’s opinion and Justice
51
Ante at ___ (opinion by HATHAWAY, J.).
52
Under the hypothetical example Justice CAVANAGH posed in Stone, a plaintiff
whose risk of suffering a bad result increases from 20 percent to 60 percent is unable to
prove causation under the more-probable-than-not standard. This is because the
plaintiff’s risk has not increased by the more than 50 percentage points traditionally
required to prove “but for” causation. Justice CAVANAGH applies a very different
approach today, and, under that approach, his hypothetical Stone plaintiff would be able
to prove causation. Whatever innocence Justice CAVANAGH now feigns in treating both
that hypothetical case and the instant case as traditional medical malpractice cases, he is
unequivocally converting what used to be a lost opportunity case into a traditional
medical malpractice case.
A plaintiff who has a preexisting medical condition is only able to prove “but for”
causation when the alleged malpractice increases the plaintiff’s risk of suffering a “bad
result” by more than 50 percentage points. Otherwise, there is no way to exclude, as
Justice CAVANAGH (and this Court) has previously required, all “other reasonable
hypotheses with a fair amount of certainty.” Skinner, 445 Mich at 166 (quotation marks
and citation omitted). The approach adopted by the opinions of Justices HATHAWAY and
CAVANAGH negates this basic requirement of proximate cause and would allow a
plaintiff to recover for a bad result even in situations in which other, nonmalpractice
“causes” for the result predominated in creating it.
27
CAVANAGH’s concurring opinion apply the new standard in an especially troubling
fashion. It is a truism in statistical methodology that one marshaling statistical evidence
to support causation must apply the principle of ceteris paribus by “comparing like with
like.”53 The new majority violates this basic principle of statistical analysis to reach its
desired result. The expert testimony indicated that plaintiff’s chance of suffering a stroke
would have been reduced from the range of 10 to 20 percent to the range of 5 to 10
percent if plaintiff had been treated according to the asserted standard of care. In
The new majority’s approach would allow a plaintiff to recover in full from a
doctor who, for example, failed to diagnose cancer at its earliest stages, but still
diagnosed it at a stage where it was much more probable than not that a patient would
survive. To put figures on this situation, suppose a plaintiff's risk of dying from cancer is
1 percent if it is caught at its earliest stages. A doctor who fails to catch the cancer at that
stage, but who catches it and treats it at a stage where the risk of dying from cancer is 3
percent, then, is liable, under the new majority’s new approach, for the entire injury,
should one occur, because the failure to diagnose contributed to 2/3 of the risk of injury.
This is true, according to the new majority, even though the doctor only decreased the
patient's chance of surviving by 2 percentage points, from 99 percent to 97 percent.
By shifting many lost opportunity claims into traditional medical malpractice
claims, the new majority creates additional liability of a defendant for the entire injury,
not just for the increased risk of injury, as lost opportunity claims provide. See Falcon,
436 Mich at 471 (opinion by LEVIN, J.) (“In this case, 37.5 percent times the damages
recoverable for wrongful death would be an appropriate measure of damages.”). This
shift in determining a defendant’s liability is essential to understanding what the new
majority is trying to accomplish in this case. Now plaintiffs need only prove that a
doctor’s negligence contributed to the risk of injury, not that his negligence actually
caused the injury. And no amount of pretended ignorance about the significance of these
changes by members of the new majority alters their fundamental and radical impact on
this area of the law.
53
See Lewis-Beck, Bryman, & Liao, eds, 1 The SAGE Encyclopedia of Social
Science Research Methods (Thousand Oaks, Cal: SAGE Publications, Inc, 2004), p 117
(“Ceteris paribus . . . refers to the process of comparing like with like when asserting a
causal relationship or the effect of one variable on another.”).
28
clarifying these statistical ranges, the expert concluded that plaintiff’s likelihood of
suffering a stroke would have been “cut in half” under the standard of care urged by
plaintiff. In other words, the upper end of the range of plaintiff’s likelihood of suffering a
stroke was “cut in half,” from 20 percent to 10 percent, and the lower end of that range
was also “cut in half,” from 10 percent to 5 percent. Rather than comparing like with
like—the lower end of each range or the upper end of each range—a majority of this
Court fallaciously compares the lower end of one range (5 percent) with the upper end of
the other (20 percent). They do so in order to conclude that the alleged malpractice
caused 75 percent of plaintiff’s chance of suffering a stroke (15/20).54 This failure to
“compare like with like” is a patent error of statistical analysis, but it gets the majority
where it needs to go to support its conclusion that plaintiff has established “but for”
cause.
Finally, Justice HATHAWAY’s opinion concludes that “plaintiff established a
question of fact on the issue of proximate causation because plaintiff’s experts opined
that defendants’ negligence more probably than not was the proximate cause of the
plaintiff’s injuries.”55 This statement might have had more relevance if it had been
54
The new majority calculates that defendants’ alleged malpractice caused an
increase in plaintiff’s risk of suffering a stroke by 15 percentage points (5 percent risk
without malpractice subtracted from 20 percent risk with malpractice). They then divide
that figure by plaintiff’s 20 percent risk of a stroke with malpractice to conclude that the
alleged malpractice caused 75 percent of plaintiff’s chance of suffering a stroke. See
ante at ___ (opinion by HATHAWAY, J.); ante at ___ (CAVANAGH, J., concurring).
55
Ante at ___ (opinion by HATHAWAY, J.).
29
supported by the experts’ actual statistical evidence of plaintiff’s chances of suffering the
stroke. However, as discussed above, plaintiff’s experts were unable to show proximate
causation between the alleged malpractice and plaintiff’s stroke. All they were able to
show was a connection between the alleged malpractice and plaintiff’s increased
likelihood of suffering a stroke, from between 5 to 10 percent to between 10 to 20
percent. Justice HATHAWAY’s analysis, such as it is, allows an expert to say certain
“magic words” about proximate causation, while presenting statistical evidence to the
contrary.
As stated, this case is a prototypical lost opportunity case because plaintiff cannot
establish that, more probably than not, defendants proximately caused his stroke because
he was predisposed to suffer one, his risk being in the range of 5 to 10 percent, even with
medical care that satisfied plaintiff’s proposed standard of care. Accordingly, I
vigorously dissent from the conclusion of a majority of this Court that plaintiff asserted a
traditional medical malpractice claim and would instead conclude that plaintiff asserted a
lost opportunity claim.
C. MCL 600.2912a(2) IS (STILL) UNENFORCEABLE AS ENACTED
Because the new majority concludes that plaintiff’s claim is a traditional medical
malpractice claim, it does not need to reach the question whether plaintiff’s claim meets
the requirements of the second sentence of MCL 600.2912a(2), which applies only to lost
opportunity claims. The decision of the new majority to treat this case as a traditional
medical malpractice claim, of course, obviates the need for interpreting the second
sentence of MCL 600.2912a(2) because the new majority essentially treats all medical
30
malpractice claims under the weakened Falcon causation standard heretofore applicable
only to lost opportunity claims. Therefore, the decision of the new majority to overrule
the Court of Appeals decision in Fulton, to the extent Fulton drew a line between lost
opportunity cases and traditional medical malpractice cases, also does away with Fulton’s
application of the sentence in § 2912a(2) that applies to lost opportunity cases. Fulton
only applies to lost opportunity cases. By concluding that the instant case sounds in
traditional medical malpractice, the new majority essentially writes the decision in Fulton
out of existence. Thus, its expansive decision in this case is characteristic of the new
majority that overreaches in its decisions in order to achieve its own preferred policy
outcomes.56
56
Although the “new majority” has only been in existence 18 months, it has an
impressive record of overturning cases consistent with the Chief Justice’s promise to
“undo . . . the damage that the Republican-dominated court has done.” She Said, Detroit
Free Press, December 10, 2008, p 2A.
By my count, the new majority has now overturned this term 12 cases in addition
to the one that it overturns today:
1. In People v Feezel, 486 Mich 184; 783 NW2d 67 (2010), the new majority
overruled People v Derror, 475 Mich 316; 715 NW2d 822 (2006).
2. In McCormick v Carrier, ___ Mich ___; ___ NW2d ___ (2010), the new
majority overruled Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004).
In Lansing Sch Ed Ass'n v Lansing Bd of Ed, ___ Mich ___; ___ NW2d ___
(2010), the new majority overruled the following cases:
3. Lee v Macomb Co Bd of Comm'rs, 464 Mich 726; 629 NW2d 900
(2001);
4. Crawford v Dep’t of Civil Serv, 466 Mich 250; 645 NW2d 6 (2002);
31
5. Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684
NW2d 800 (2004);
6. Associated Builders & Contractors v Dep’t of Consumer & Indus Servs
Dir, 472 Mich 117, 124-127; 693 NW2d 374 (2005);
7. Mich Chiropractic Council v Comm’r of the Office of Fin & Ins Serv,
475 Mich 363; 716 NW2d 561 (2006);
8. Rohde v Ann Arbor Pub Sch, 479 Mich 336; 737 NW2d 158 (2007);
9. Mich Citizens for Water Conservation v Nestlé Waters North America
Inc, 479 Mich 280, 302-303; 737 NW2d 447 (2007); and
10. Manuel v Gill, 481 Mich 637; 753 NW2d 48 (2008).
11. In Bezeau v Palace Sports Entertainment, Inc, ___ Mich ___; ___ NW2d ___
(2010), the new majority expressly overruled the limited retroactive effect of
Karaczewski v Farbman Stein & Co, 478 Mich 28; 732 NW2d 56 (2007).
12. In Univ of Mich Regents v Titan Ins Co, ___ Mich ___; ___ NW2d ___ (2010),
the new majority overruled Cameron v Auto Club Ins Ass’n, 476 Mich 55; 718 NW2d
784 (2006).
Given this list of “lately departed” decisions of the “Republican-dominated
Court,” killing one Court of Appeals case such as Fulton—even if entirely irrelevant to
the question the new majority purports to address here—is hardly surprising for the new
majority which, before its members became the majority, were individually and
collectively notably more “hawkish” on preserving precedent. See Pollard v Suburban
Mobility Auth for Regional Transp, 486 Mich 963, 963-965 (2010) (YOUNG, J.,
dissenting statement). As in three other cases decided this term, Justice WEAVER repeats
her tired and unsuccessful attempt to defend her changing position on stare decisis. Ante
at ___ (WEAVER, J., concurring). See also Univ of Mich Regents, ___ Mich at ___
(WEAVER, J., concurring); Lansing Sch Ed Ass’n, ___ Mich at ___ (WEAVER, J.,
concurring); McCormick, ___ Mich at ___ (WEAVER, J., concurring). Her position does
not become any more convincing with repetition. My dissenting opinion in Univ of Mich
Regents, ___ Mich at ___ (YOUNG, J., dissenting), explains in full why Justice WEAVER’s
position is merely an attempt to justify stark judicial policy-making.
32
The Legislature added subsection (2) to MCL 600.2912a shortly after the Falcon
Court created the new claim for loss of an opportunity to survive. The new subsection
provides:
In an action alleging medical malpractice, the plaintiff has the
burden of proving that he or she suffered an injury that more probably than
not was proximately caused by the negligence of the defendant or
defendants. In an action alleging medical malpractice, the plaintiff cannot
recover for loss of an opportunity to survive or an opportunity to achieve a
better result unless the opportunity was greater than 50%.[57]
As the lead opinion in Stone aptly observed, there are multiple problems in
determining whether the requirements of MCL 600.2912a(2) apply in any particular case.
As stated above, the two sentences are internally inconsistent and, therefore, create a
paradox:
[T]he first sentence of this new subsection codifies and reiterates the
common-law requirement that a plaintiff show that the defendant’s
malpractice more probably than not caused the plaintiff’s injury. The
second sentence of subsection 2 adds that, in medical-malpractice cases, a
“plaintiff cannot recover for loss of an opportunity to survive or an
opportunity to achieve a better result unless the opportunity was greater
than 50%.” However, one must keep in mind that the relevant caselaw
when subsection 2 was enacted held that the lost-opportunity doctrine
applies “in situations where a plaintiff cannot prove that a defendant’s
actions were the cause of his injuries . . . .” Vitale, [150 Mich App] at 502
(emphasis added). That is, the first sentence of subsection 2 requires
plaintiffs in every medical-malpractice case to show the defendant’s
malpractice proximately caused the injury while, at the same time, the
second sentence refers to cases in which such proof not only is
unnecessary, but is impossible.[58]
57
MCL 600.2912a(2).
58
Stone, 482 Mich at 156-157 (opinion by TAYLOR, C.J.).
33
Even ignoring the internal inconsistency, the second sentence of subsection (2) is
incomprehensible as written. Subsequent to the amendment, the split Court of Appeals
panel in Fulton offered two contradictory interpretations of the second sentence, neither
of which was consistent with the text of that sentence as enacted. The Fulton majority
determined that “MCL 600.2912a(2) requires a plaintiff to show that the loss of the
opportunity to survive or achieve a better result exceeds fifty percent.”59 As the lead
opinion in Stone indicated, this interpretation “improperly adds to the statute the words
‘loss of,’ effectively replacing the word ‘opportunity’ where it is used the second time
with the phrase ‘loss of opportunity.’”60 Thus, the Fulton majority essentially rewrote the
second sentence of § 2912a(2) to include the following bracketed words: “In an action
alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to
survive or an opportunity to achieve a better result unless the [loss of] opportunity was
greater than 50%.”
The dissenting judge in Fulton did not fare any better. His interpretation of MCL
600.2912a(2) required a plaintiff “‘to show that, had the defendant not been negligent,
there was a greater than fifty percent chance of survival or a better result.’”61 This
59
Fulton, 253 Mich App at 83.
60
Stone, 482 Mich at 159 n 9 (opinion by TAYLOR, C.J.).
61
Fulton, 253 Mich App at 91 (SMOLENSKI, J., dissenting), quoting Wickens v
Oakwood Healthcare System, 242 Mich App 385, 392; 619 NW2d 7 (2000). The
published Court of Appeals decision in Wickens was not controlling in Fulton because
this Court had already reversed in part and vacated in part that published decision.
Wickens v Oakwood Healthcare System, 465 Mich 53; 631 NW2d 686 (2001).
34
interpretation essentially rewrote the second sentence of § 2912a(2) to include the
following bracketed word: “In an action alleging medical malpractice, the plaintiff cannot
recover for loss of an opportunity to survive or an opportunity to achieve a better result
unless the [initial] opportunity was greater than 50%.”
Thus, both the majority and the dissent in Fulton inserted additional words into the
statute. Their reasons for doing so were identical: each believed the additional language
was necessary to enforce the perceived legislative intent to respond to the Falcon Court’s
creation of the lost opportunity claim. However, these multiple interpretations show that,
even if they were correct that the amendment was a legislative response to Falcon, the
scope of such response was far from clear.
In the end, the lead opinion in Stone concluded:
It is confounding to attempt to ascertain just what the Legislature
was trying to do with this amendment. . . .
As written, the second sentence of MCL 600.2912a(2) can be made
understandable only by adding words or by redefining “injury” in a way
significantly contrary to the mass of caselaw at the time the sentence was
added. . . . None of these multiple, contradictory interpretations can be
shown to be the “correct” construction of legislative intent. Choosing
between them can only be a guess. . . . Accordingly, I conclude that the
second sentence of subsection 2 cannot be judicially enforced because
doing so requires the Court to impose its own prerogative on an act of the
Legislature.[62]
62
Stone, 482 Mich at 160-161 (opinion by TAYLOR, C.J.).
35
Since this Court’s split opinions in Stone, the Legislature has not clarified the confusion
surrounding the appropriate interpretation of MCL 600.2912a(2). Therefore, my position
remains that the provision is unenforceable as enacted.
The decision by the new majority that this case represents a traditional medical
malpractice case further muddles this important area of the law. Moreover, three justices
of the new majority have changed their published positions over the past several years on
the nature of the evidence required to prove proximate cause.
If the numerous fractured decisions and inconsistent opinions of the members
of this Court fail to demonstrate that this statute is impossible to interpret
reasonably, then it is hard to envision a better illustration that MCL 600.2912a(2) is
inherently internally inconsistent and cannot be parsed.
IV. CONCLUSION
Confusion and uncertainty in the law prevent citizens from arranging their affairs
in a predictable fashion. This Court initially created uncertainty in adopting the lost
opportunity claim in Falcon because it was so profoundly at odds with traditional
principles of causation. It is no wonder that the Legislature had difficulty reconciling
“Falcon causation” with the traditional causation that the Legislature clearly desired to
maintain in medical malpractice claims. Today, the new majority has created even more
uncertainty in interpreting the legislative response to Falcon. While the result in this case
undoubtedly serves the interests of lawyers who litigate medical malpractice cases, it
poorly serves the people of this state to have the law become even more
incomprehensibly muddled. This is not an accidental act, but one intentionally designed
36
to thwart the legislative directive that the plaintiff prove the traditional requirement of
proximate cause in every “action alleging medical malpractice . . . .”63 Judges, as neutral
arbiters whose function is merely to interpret the laws enacted through the democratic
process, should not be agents of “societal change” they desire, and they certainly should
not contribute to confusion and chaos in the law. The new majority’s resolution of this
case fails on both counts.
Plaintiff’s claim is a prototypical lost opportunity claim. As such, the second
sentence of MCL 600.2912a(2) expressly controls plaintiff’s claim. However, I continue
to maintain that § 2912a(2) is unenforceable as enacted, and I reiterate former Chief
Justice TAYLOR’s call for the Legislature “to reexamine its goal and the policies it wishes
to promote and strive to better articulate its intent in that regard.”64 Today, that call is
more urgent than it was just two years ago.
Today is a sad day for predictability in Michigan law. The disorder sown by the
new majority in their several opinions speaks poorly of the quality of decision-making in
this Court. Doctrinal destruction aside, the obvious manipulation of the statistical
evidence by the justices of the new majority to achieve their goal of creating a cause of
action when the proofs have failed is itself worthy of condemnation.
63
MCL 600.2912a(2).
64
Stone, 482 Mich at 165 (opinion by TAYLOR, C.J.).
37
For all of the reasons stated, I vigorously dissent from overreaching by the new
majority and, instead, would vacate as improvidently entered this Court’s September 30,
2009, order granting leave to appeal.
CORRIGAN, J., concurred with YOUNG, J.
38