Order Michigan Supreme Court
Lansing, Michigan
October 31, 2008 Clifford W. Taylor,
Chief Justice
132506 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
DEBORAH COMPTON, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 132506
COA: 260362
Oakland CC: 2003-048275-NH
HELEN ALEXANDRA PASS, M.D.,
JANE E. PETTINGA, M.D., and
WILLIAM BEAUMONT HOSPITAL,
Defendants-Appellees.
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On order of the Court, the application for leave to appeal the August 22, 2006
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and
we REMAND this case to the Court of Appeals for reconsideration, in light of Stone v
Williamson, 482 Mich 144 (2008), of whether this is a lost-opportunity case and whether
the defendants are entitled to summary disposition under MCL 600.2912a(2). On
remand, the Court of Appeals shall also consider the other issues raised by the parties, but
not addressed by that court during its initial review of this case, to the extent necessary to
resolve this case.
MARKMAN, J. (concurring).
The trial court denied defendants’ motion for summary disposition; but, after the
close of plaintiff’s proofs, granted defendants’ motion for a directed verdict. The Court
of Appeals reversed the trial court’s order denying defendants’ motion for summary
disposition and vacated the trial court’s subsequent orders. 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).
2
Plaintiff’s expert testified that the decedent’s premalpractice chance of not
suffering from lymphedema or axillary cording was at least 97%, while her
postmalpractice chance of not suffering from lymphedema was 82% and her
postmalpractice chance of not suffering from axillary cording was 90%. 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, utilizing the formula described
in my opinion in Stone, plaintiff satisfies the § 2912a requirement. I would reverse the
Court of Appeals, but for the fact that my opinion did not carry the day. Therefore, I
must accede to the remand 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