Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan
Opinion
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 24, 2001
SANDRA J. WICKENS and DAVID WICKENS,
Plaintiff-Appellees,
and
BLUE CROSS/BLUE SHIELD,
Intervening Plaintiff,
v No. 117731
OAKWOOD HEALTHCARE SYSTEM, an
assumed name for OAKWOOD
HEALTHCARE, INC., BELLEVILLE
HEALTH CARE CENTER, an assumed
name for OAKWOOD HEALTHCARE
INC., DR. CHRISTOPHER PABIAN
and OAKWOOD HEALTHCARE CENTER-
CANTON, an assumed name for
OAKWOOD HEALTHCARE, INC.,
Defendants-Appellants,
and
DR. PATRICIA NESTER,
Defendant.
________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
The trial court directed a verdict in this medical
malpractice case in defendants’ favor on the basis that
plaintiff’s claim was barred by MCL 600.2912a(2), which
precludes recovery for “loss of an opportunity to survive”
unless the “opportunity was greater than 50%.” We hold that
a living person may not recover for loss of an opportunity to
survive, and that plaintiff’s claim is therefore barred to the
extent that it is based on such loss of opportunity. We
further hold that the trial court nevertheless erred in
dismissing plaintiff’s case in its entirety, because she has
made additional claims that are independent of her claim for
loss of an opportunity to survive. Accordingly, we reverse in
part and vacate in part the opinion of the Court of Appeals
and remand this matter to the trial court for further
proceedings consistent with this opinion.
I. FACTS AND PROCEEDINGS
Defendant Oakwood Healthcare System operates an
outpatient medical clinic where plaintiff Sandra Wickens1
consulted defendant Dr. Christopher Pabian regarding a lump in
her right breast. Dr. Pabian referred plaintiff for a
mammogram that Oakwood personnel administered and interpreted
in April 1995. The interpreter reported that the breast
tissue had abnormalities, but that they were not cause for
alarm because of plaintiff’s age, forty-eight, and her breast
1
Plaintiff David Wickens’ claim is derivative in nature.
For the sake of simplicity, we refer to Sandra Wickens as
“plaintiff.”
2
tissue density. She was told to get a repeat mammogram in six
months.
In November 1995, plaintiff tried to get the repeat
mammogram, but Oakwood personnel incorrectly told her that her
insurance would not pay for a second mammogram within twelve
months. Plaintiff waited the additional six months and had
another mammogram in May 1996, when the interpreter spotted a
mass in the right breast and recommended a biopsy. The
biopsy, performed two weeks later, revealed a malignancy.
On May 29, 1996, plaintiff underwent a mastectomy to
remove her right breast and the adjacent lymph nodes. The
malignant lump in her breast measured about six centimeters in
diameter. Nine of the thirteen lymph nodes contained
malignant tissue, indicating a substantial probability that
the cancer had spread. Plaintiff underwent postsurgery
chemotherapy and radiation treatments to minimize any chance
of spreading.
In January 1997, plaintiff consulted doctors about a lump
in her left breast. Although no malignancy was detected,
plaintiff underwent a mastectomy to remove her left breast.
That was followed with chemotherapy and radiation treatments.
Plaintiff filed this medical malpractice suit in
September 1997, alleging that the one-year delay in diagnosing
her cancer constituted medical malpractice by the defendants.
She alleged that the defendants’ malpractice had caused her to
suffer a poorer prognosis of cure or long-term survival, a
reduction in the quality of life and life expectancy, the need
to undergo more radical intervention than would have been
3
necessary a year earlier, and pain and suffering.
Both parties deposed plaintiff’s expert, Dr. David
Schapira, an oncologist. Dr. Schapira testified that the
malignant lump in plaintiff’s right breast would most likely
have measured less than two centimeters in April 1995; that at
that time fewer than nine of plaintiff’s lymph nodes, probably
between one and three, would have been affected by the cancer;
and that it was generally regarded that appropriate treatment
for a cancerous condition of that type would consist of a
lumpectomy and radiation therapy, rather than a mastectomy.
Moreover, according to Dr. Schapira, plaintiff’s probability
of living ten years after the 1996 diagnosis was fifteen
percent. If plaintiff’s breast cancer had been diagnosed in
April 1995, she would have had (1) a seventy percent chance of
surviving ten years if the cancer involved only one lymph
node, or (2) a fifty-five percent chance of surviving ten
years if the cancer involved three lymph nodes. On cross
examination, Dr. Schapira opined that plaintiff’s cancer had
likely affected two or three lymph nodes in 1995.
Defendants filed a motion in limine for a directed
verdict, arguing that according to Dr. Schapira’s testimony,
plaintiff could not meet the requirements of MCL 600.2912a(2).
Section 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%.
4
Defendants argued that Dr. Schapira’s testimony showed that
any malpractice by defendants reduced plaintiff’s probability
of surviving ten years by forty percent.2 Because defendants
calculated plaintiff’s loss at only forty percent, they
contended that she therefore could not prove that she lost a
greater than fifty percent opportunity to survive, as required
by § 2912a(2).
The trial court agreed and granted defendants’ motion,
dismissing plaintiff’s entire case.
The Court of Appeals reversed, holding that § 2912a(2)
only requires that the plaintiff demonstrate that had the
defendant not been negligent, there was a greater than fifty
percent opportunity to survive.3 Additionally, the Court of
Appeals held that plaintiff satisfied § 2912a(2) by presenting
expert testimony that she would have had a fifty-five to
seventy percent chance of surviving ten years if her cancer
had been diagnosed in April 1995. The panel further ruled
that the trial court should not have dismissed plaintiff’s
case in its entirety:
Plaintiffs further argue that the trial court
erred in not allowing this case to proceed to trial
on their claim that, as a result of defendants’
negligence, Wickens was deprived of the opportunity
for a better result. We agree. Pursuant to MCR
2.515, a “party may move for a directed verdict at
the close of the evidence offered by an opponent.
The motion must state specific grounds in support
2
Defendants arrived at forty percent by subtracting the May
1996 ten-year survival rate of fifteen percent from the April
1995 rate of fifty-five percent, given Dr. Schapira’s opinion
that the cancer had likely affected two to three lymph nodes
in 1995.
3
242 Mich App 385; 619 NW2d 7 (2000).
5
of the motion.” . . . Thus, the trial court erred
in dismissing plaintiffs’ entire cause of action
without affording plaintiffs the opportunity to
present their case at trial. Furthermore, the
trial court’s dismissal of plaintiffs’ entire cause
of action was erroneous because defendants merely
discussed plaintiffs’ claim for loss of opportunity
to survive in their motion for directed verdict.
[242 Mich App 393.]
We granted defendants’ application for leave to appeal,
directing the parties to brief the issue whether a living
plaintiff can bring a cause of action for loss of an
opportunity to survive when the claimed injury is a reduction
in her projected chances of long-term survival.4
II. STANDARD OF REVIEW
Before trial, defendants filed a motion in limine for
directed verdict to dismiss plaintiff’s claims for loss of an
opportunity to survive and loss of an opportunity to achieve
a better result. At the hearing on the motion, however,
defendants referred to the motion as “defendants[’] motion for
summary disposition, directed verdict.” The trial court
granted the motion for defendants, on the basis of defendants’
interpretation of § 2912a(2). Because MCR 2.515 states that
“[a] party may move for a directed verdict at the close of the
evidence offered by an opponent[,]” we find defendants’
characterization of the motion as a directed verdict at the
pretrial stage incorrect. Motions for summary disposition are
brought at this stage, and we therefore treat defendants
motion as a motion for summary disposition. This Court
4
463 Mich 907 (2000). The order continued the stay of
proceedings in the Wayne Circuit Court that we had previously
ordered on October 20, 2000.
6
reviews a trial court’s decision to grant summary disposition
de novo. Sewell v Southfield Pub Schs, 456 Mich 670, 674; 576
NW2d 153 (1998). Similarly, questions of statutory
interpretation are reviewed de novo. In re MCI
Telecommunications, 460 Mich 396, 413; 596 NW2d 164 (1999).
III. ANALYSIS
A. A LIVING PLAINTIFF MAY NOT RECOVER FOR
LOSS OF AN OPPORTUNITY TO SURVIVE
Plaintiff contends that she can recover for the reduction
in her chances of survival caused by the delayed diagnosis as
a claim for loss of an opportunity to survive under §
2912a(2). We reject plaintiff’s contention that a living
plaintiff may recover for a loss of an opportunity to survive
under § 2912a(2) because it is contrary to the Legislature’s
intent, as evidenced by the statute’s plain language.
The paramount rule of statutory interpretation is that we
are to effect the intent of the Legislature. Tryc v Michigan
Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996).
To do so, we begin with the statute’s language. If the
statute’s language is clear and unambiguous, we assume that
the Legislature intended its plain meaning, and we enforce the
statute as written. People v Stone, 463 Mich 558, 562; 621
NW2d 702 (2001). In reviewing the statute’s language, every
word should be given meaning, and we should avoid a
construction that would render any part of the statute
surplusage or nugatory. Altman v Meridian Twp, 439 Mich 623,
635; 487 NW2d 155 (1992).
The first sentence of § 2912a(2) provides, “In an action
7
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.” The plain language of the statute,
therefore, expressly limits recovery to injuries that have
already been suffered and more probably than not were caused
by the defendant’s malpractice. Thus, plaintiff can only
recover for a present injury, not for a potential future
injury. Plaintiff claims that a living plaintiff who suffers
a reduction in chances of long-term survival because of
medical malpractice may have a cause of action for loss of an
opportunity to survive under the statute. The testimony that
plaintiff’s chances of surviving for a ten-year period
decreased, however, is evidence of a potential future
injury–death–which is not an injury already suffered, as
required by the plain language of the statute. Thus, a loss
of an opportunity to survive claim only encompasses injuries
already suffered, which clearly limits recovery to situations
where death has already occurred. Because the evidence
concerning the reduction in her chances of survival over a
ten-year period is relevant only to her potential, future
death, the living plaintiff in this case may not recover for
this “loss of opportunity.”
B. THE TRIAL COURT ERRED IN DISMISSING
PLAINTIFF ’S ENTIRE CASE
Plaintiff alleged in her complaint that defendants’
negligent one-year delay in diagnosing her breast cancer
caused past and future damages including, inter alia, the need
8
for more invasive medical treatments, emotional trauma, and
pain and suffering. Defendants sought a “directed verdict” on
a theory that plaintiff’s claim was precluded by subsection
2912a(2). In support of their motion, defendants relied
solely on the uncontested expert testimony that the one-year
delay in plaintiff’s diagnosis and treatment caused her ten
year-survival rate to be reduced from fifty-five percent to
fifteen percent.
The trial court erred in dismissing plaintiff’s entire
case on the ground that it was barred by application of
subsection 2912a(2). The ten-year-survival-rate statistics
say nothing about plaintiff’s chances of avoiding the other
injuries she allegedly suffered, such as (1) the more invasive
medical treatments caused by the one-year delay in her
diagnosis, (2) the emotional trauma attributable to her
unnecessarily worsened physical condition, and (3) the pain
and suffering attributable to her unnecessarily worsened
physical condition. Because of these alleged injuries, the
trial court should not have dismissed plaintiff’s case in its
entirety on the basis of subsection 2912a(2).
In light of our determination that a living plaintiff may
not recover for loss of an opportunity to survive and that
plaintiff pleaded a cause of action for her injuries from the
more invasive medical procedures she incurred on account of
the alleged negligent delay in diagnosis, it was unnecessary
for the lower courts to have addressed whether plaintiff had
a cause of action solely on the basis of the reduction in her
ten-year survival rate. Accordingly, we vacate that portion
9
of the Court of Appeals opinion.
IV. CONCLUSION
In light of the plain language of MCL 600.2912a(2), which
allows recovery only for injuries that have already been
suffered, we conclude that a living plaintiff may not recover
for loss of an opportunity to survive on the basis of a
decrease in her chances of long-term survival. We further
conclude that, although plaintiff may not recover for loss of
an opportunity to survive, the trial court improperly
dismissed her remaining claims, which are not premised upon
her decreased chances of long-term survival. Accordingly, we
reverse in part and vacate in part the opinion of the Court of
Appeals and remand plaintiff’s case to the trial court for
further proceedings consistent with this opinion.
CORRIGAN , C.J., and TAYLOR and MARKMAN , JJ., concurred with
YOUNG, J.
10
S T A T E O F M I C H I G A N
SUPREME COURT
SANDRA J. WICKENS and DAVID WICKENS,
Plaintiff-Appellees,
and No. 117731
BLUE CROSS/BLUE SHIELD,
Intervening Plaintiff,
v
OAKWOOD HEALTHCARE SYSTEM, an
assumed name for OAKWOOD
HEALTHCARE, INC., BELLEVILLE
HEALTH CARE CENTER, an assumed
name for OAKWOOD HEALTHCARE
INC., DR. CHRISTOPHER PABIAN
and OAKWOOD HEALTHCARE CENTER-
CANTON, an assumed name for
OAKWOOD HEALTHCARE, INC.,
Defendants-Appellants,
and
DR. PATRICIA NESTER,
Defendant.
________________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I concur with the majority’s holding that a living person
may not recover for a loss of an opportunity to survive under
the plain language of MCL 600.2912a(2). The majority,
however, also holds that the evidence concerning plaintiff’s
reduced life expectancy is relevant only to her potential
future death. Thus, the majority fails to address whether
plaintiff may recover for injuries suffered as a result of
learning of her reduced life expectancy under the statute as
a loss of an opportunity to achieve a better result. Because
I believe that a living person may recover for injuries
suffered as a result of learning of a reduction in life
expectancy as a loss of an opportunity to achieve a better
result and that the evidence concerning plaintiff’s reduced
life expectancy is relevant to whether defendant caused these
injuries, I respectfully dissent.
Plaintiff asserts she may recover for her reduction in
life expectancy as either a claim for loss of an opportunity
to survive or loss of an opportunity to achieve a better
result under § 2912a(2). I agree with the majority’s
reasoning that under the plain language of § 2912a(2), a
living person may not recover for a loss of an opportunity to
survive. However, the statute also provides for an
alternative claim, loss of an opportunity to achieve a better
result. Thus, I would conclude that a living person may
recover for injuries suffered as a result of learning of a
reduction in life expectancy under that claim, if there is
evidence that the defendant more probably than not caused the
injury. I believe plaintiff satisfied this burden.
The first sentence of § 2912a(2) expressly limits
recovery to injuries that have already been suffered and more
probably than not were caused by defendant’s malpractice.
Thus, as the majority notes, the plaintiff can only recover
2
for a present injury, not for a potential future injury.
Although this precludes plaintiff from asserting a claim for
loss of an opportunity to survive, it does not preclude
plaintiff from asserting a claim for loss of an opportunity to
achieve a better result, as the majority contends. The
statute allows for recovery for injuries already suffered. In
this case, the injuries already suffered are the pain and
suffering, that were generated by the knowledge that
plaintiff’s chances of living ten years severely decreased.
Thus, plaintiff’s claim for such injuries already suffered as
a result of defendant’s malpractice would satisfy the first
requirement, that there be a present injury. However, the
correct claim is for a loss of an opportunity to achieve a
better result. Plaintiff asserted a claim for loss of an
opportunity to achieve a better result on the basis of her
reduced life expectancy. Therefore, the next question is
whether summary disposition on this alternative claim was
proper.
The second sentence of § 2912a(2) states that a plaintiff
may not recover for a loss of an opportunity to survive or
achieve a better result “unless the opportunity was greater
than 50%.” The statute is clear that the Legislature intended
the word “opportunity” in that phrase to mean the opportunity
a plaintiff had to survive or achieve a better result, absent
any malpractice. Thus, the statute clearly requires that the
premalpractice opportunity to survive or achieve a better
result must exceed fifty percent for a plaintiff to recover.
3
In this case, plaintiff’s expert Dr. Schapira testified
that, had plaintiff’s cancer been properly diagnosed, her
lowest ten-year survival rate percentage would have been
fifty-five percent. Regarding plaintiff’s injury of undergoing
more invasive medical procedures, Dr. Schapira testified that
the delayed diagnosis caused the cancer to spread to more
lymph nodes, necessitating these procedures. This injury is
clearly one hundred percent attributable to defendant’s
delayed diagnosis. Thus, viewing the evidence in a light most
favorable to plaintiff, she submitted evidence that would
allow a jury to conclude that her premalpractice opportunity
to achieve a better result was greater than fifty percent,
and, therefore, summary disposition of that claim was
improper.
The next question to address is what damages, if any,
plaintiff may recover for a reduction in life expectancy. As
this opinion previously discussed, the first sentence of §
2912a(2) limits a plaintiff’s recovery to injuries already
suffered and that were more probably than not caused by
defendant’s malpractice. Thus, plaintiff can only recover for
a present injury, not for a potential future injury.
Plaintiff’s injury of having to undergo more radical treatment
is a present injury, and, thus, is recoverable under the
statute as an injury suffered. The additional injury
plaintiff suffered as a result of defendant’s malpractice was
that her chance to live beyond ten years was severely
decreased. The majority asserts that plaintiff’s
premalpractice chance of surviving ten years, fifty-five
4
percent in this case, is irrelevant to whether the defendant
caused the injuries suffered, i.e., pain and suffering, as a
result of learning about the reduction in that chance of
survival. I disagree. The only way defendant caused
plaintiff’s secondary injury of pain and suffering from
learning of her reduced life expectancy is if defendant caused
plaintiff’s primary injury, the reduction in plaintiff’s life
expectancy. The secondary injury, the pain and suffering,
will always be one hundred percent attributable to the primary
injury, thus, we must make sure defendant caused the primary
injury. To ensure defendant more probably than not caused the
primary injury and, thus, the resulting secondary injury,
plaintiff must prove that the primary injury meets the greater
than fifty percent threshold. Evidence supporting the
assertion that defendant’s negligence more probably than not
caused this injury was plaintiff’s expert who opined that
defendant’s failure to timely diagnose plaintiff’s breast
cancer caused plaintiff’s fifty-five percent premalpractice
chance to live ten years to decrease to fifteen percent. This
evidence, which shows that plaintiff had a better than even
chance of living ten years before defendant’s malpractice,
supports a finding that defendant, not plaintiff’s cancer,
more probably than not caused the injury. Plaintiff,
therefore, submitted evidence that would allow a jury to
conclude that her premalpractice opportunity to achieve a
better result, i.e., to avoid pain and suffering after
learning of her reduced life expectancy, was greater than
fifty percent, and, therefore, summary disposition of that
5
claim was improper. Thus, I would conclude that the reduction
in plaintiff’s better than even chance to live ten years is a
recoverable injury under the statute; however, the correct
claim is for loss of an opportunity to achieve a better
result, and plaintiff can only recover for the pain and
suffering generated by the knowledge that her chances of
living ten years severely decreased.
CONCLUSION
In light of the plain language of MCL 600.2912a(2), I
would conclude that a living person may not recover for a
reduction in life expectancy as a loss of an opportunity to
survive, but may recover for a reduced life expectancy as a
loss of an opportunity to achieve a better result. The
recovery for a reduction in life expectancy as a loss of an
opportunity to achieve a better result claim is not based on
the plaintiff’s potential future death, but is limited to the
emotional damages already suffered. However, to recover for
a loss of either an opportunity to survive or achieve a better
result, the opportunity, absent any malpractice, must have
been greater than fifty percent to ensure that defendant’s
malpractice more probably than not caused the injury. The
Court of Appeals applied this interpretation of § 2912a(2) and
held that plaintiff’s loss of opportunity to achieve a better
result claim was erroneously dismissed because she submitted
evidence that, had defendants properly diagnosed her breast
cancer, she would have had at least a fifty-five percent
chance of surviving ten years. I would, therefore, affirm the
judgment of the Court of Appeals and remand plaintiff’s case
6
to the trial court for proceedings consistent with this
opinion.
WEAVER and KELLY , JJ., concurred with CAVANAGH , J.
7