Order Michigan Supreme Court
Lansing, Michigan
October 31, 2008 Clifford W. Taylor,
Chief Justice
135781 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
RACHEL SHAFFER, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 135781
COA: 275299
Macomb CC: 04-002993-NH
ST. JOSEPH’S MERCY HOSPITALS OF
MACOMB and ST. JOSEPH’S MERCY OF
MACOMB, a/k/a MERCY MOUNT CLEMENS
CORPORATION,
Defendant-Appellant,
and
ST. JOSEPH MERCY HEALTH SYSTEM,
a/k/a TRINITY HEALTH-MICHIGAN, PAUL
MOCZARSKI, D.O., and MACOMB
EMERGENCY CARE PHYSICIANS, P.C.,
Defendants.
_________________________________________/
By order of April 28, 2008, the application for leave to appeal the December 27,
2007 judgment of the Court of Appeals was held in abeyance pending the decision in
Stone v Williamson (Docket No. 133986). On order of the Court, the case having been
decided on July 24, 2008, 482 Mich 144 (2008), the application is again considered, and
it is DENIED, because we are not persuaded that the questions presented should now be
reviewed by this Court.
MARKMAN, J. (concurring).
The trial court denied defendant’s motion for summary disposition, and the Court
of Appeals affirmed. 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
2
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 a better
result was “greater than 50%.” However, there is no testimony regarding the decedent’s
postmalpractice chance of a better result. I believe that this 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, because plaintiff has presented no testimony regarding her
postmalpractice chance of a better result, it is impossible to determine whether plaintiff
satisfies 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