Order Michigan Supreme Court
Lansing, Michigan
October 23, 2009 Marilyn Kelly,
Chief Justice
Michael F. Cavanagh
Elizabeth A. Weaver
138634 & (79) Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
DEBORAH COMPTON, Diane M. Hathaway,
Plaintiff-Appellant, Justices
v SC: 138634
COA: 260362
Oakland CC: 2003-048275-NH
HELEN ALEXANDRA PASS, M.D.,
JANE E. PETTINGA, M.D., and
WILLIAM BEAUMONT HOSPITAL,
Defendants-Appellees.
_________________________________________/
On order of the Court, the motion for leave to file brief amicus curiae is
GRANTED. The application for leave to appeal the March 5, 2009 judgment of the
Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we REVERSE the judgment of the Court of Appeals. The Court of
Appeals erred in analyzing this case under the lost-opportunity standard set forth in MCL
600.2912a(2). The plaintiff alleges that the defendants failed to obtain her informed
consent, that this breach of the standard of care caused her to undergo a more extensive
medical procedure with a higher risk of morbidity than she would have knowingly
elected, and that she was injured as a result. We conclude that the evidence is sufficient
to allow a fact-finder to find that the alleged breach of the standard of care caused the
plaintiff to suffer physical injury (including the removal of additional lymph nodes,
axillary cording, and lymphedema) that more probably than not was proximately caused
by the negligence of the defendants. As a result, the requirements of the first sentence of
MCR 600.2912a(2) are satisfied, and this is a claim of traditional malpractice. Stone v
Williamson, 482 Mich 144 (2008) (see the opinions of Taylor, C.J., at 147, 153; and
Cavanagh, J., at 171). For these reasons, the Court of Appeals erred in ruling that the
Oakland Circuit Court should have granted the defendants’ motion for summary
disposition. We REMAND this case to the Court of Appeals for consideration of the
remaining issues raised by the parties but not previously addressed by that court.
2
MARKMAN, J. (concurring).
I concur in the order reversing the judgment of the Court of Appeals for the
reasons stated in my previous concurring statement in Compton v Pass, 482 Mich 1038,
1039 (2008).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 23, 2009 _________________________________________
d1020 Clerk