Order Michigan Supreme Court
Lansing, Michigan
October 31, 2008 Clifford W. Taylor,
Chief Justice
133525 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
RUBYE BAKER, Personal Representative Stephen J. Markman,
of the Estate of Stacey Baker, Justices
Plaintiff-Appellee,
v SC: 133525
COA: 267284
Wayne CC: 03-340451-NH
ST. JOHN HEALTH SYSTEMS, a/k/a
ST. JOHN HOSPITAL AND MEDICAL
CENTER, DR. THERESE ROTH, and
DR. MARSON MA, JR.,
Defendants-Appellants.
______________________________________/
On order of the Court, the application for leave to appeal the January 23, 2007
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court prior to the
completion of the proceedings ordered by the Court of Appeals.
MARKMAN, J. (concurring).
The trial court granted defendants’ motion for summary disposition, but the Court
of Appeals reversed. 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%.” We recently addressed this provision with some considerable lack of
consensus in Stone v Williamson, 482 Mich 144 (2008). Given their decisions in Stone, I
believe it is clear that my six colleagues would either conclude that this is not a lost
opportunity cause of action, or, if it is, that plaintiff has satisfied the § 2912a(2)
requirement. For that reason, I concur in the denial order, even though I would reverse
had my position in Stone prevailed.
Plaintiff’s expert testified that the decedent’s premalpractice chance of survival
was 51% and her postmalpractice chance of survival was “5% or less.” I believe that this
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is a lost opportunity cause of action because “it is possible that the bad outcome would
have occurred even if the patient had received proper treatment.” Stone, supra at 218
(Markman, J., concurring in the result only). Further, utilizing the formula described in
my opinion in Stone, plaintiff would only satisfy the § 2912a requirement if the
decedent’s postmalpractice chance of surviving was 1% or less. If her postmalpractice
chance was 5%, as plaintiff’s expert admitted that it might have been, plaintiff would not
satisfy the § 2912a requirement. Because plaintiff has the burden of demonstrating that
the § 2912a requirement is satisfied, and she has not done so here, I would reverse.
However, because my interpretation of § 2912a did not carry the day in Stone, I accede to
the denial order.
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 31, 2008 _________________________________________
d1028 Clerk