concurring.
While I concur with the court’s conclusion that the district court erred in its factual finding that decedent Bell had less than a 50% chance of surviving corrective surgery on or after December 24, 1983, and, therefore, favor reversal, I write separately on the issue of the interpretation of the applicable Michigan case law. The court concludes that the district court com*891mitted legal error by requiring that the plaintiff show that decedent Bell would have to have had a greater than 50% chance or better of surviving corrective surgery since all that Michigan law requires is that the decedent had a “reasonable probability” of recovery. The court reasoned that, since the Michigan courts have never defined “reasonable probability” with mathematical certainty or otherwise, a “reasonable probability” is proven if the trier of fact could conclude from the evidence that the decedent would have had a “fairly good” chance of surviving corrective surgery.
While I agree that the Michigan courts have refrained from assigning a numerical value to what is required of a plaintiff in proving that a defendant’s negligent diagnosis was the proximate cause of his or her injury or death, I read Michigan law to require that the plaintiff prove by a preponderance of the evidence that it was more likely than not (i.e., greater than 50%) that he or she would have survived the surgery. Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942), remains the Michigan Supreme Court’s most definitive statement concerning what degree of certainty constitutes sufficient proof that surgical intervention would have saved a person’s life. In Harvey, a physician misdiagnosed the extent of a patient’s injury. The Michigan Supreme Court, noting that there was “testimony in the record that there was a probability that an operation would have saved [the decedent’s] life,” id. at 520, 2 N.W.2d at 487, upheld the jury instruction providing in pertinent part:
I further charge you, members of the jury, that you may not return a verdict for the plaintiff if he has shown only that surgical intervention might -possibly have saved the life of [the decedent], but, on the other hand, it is not incumbent on the plaintiff to show that to a certainty surgical intervention would have saved his life. It is sufficient if the plaintiff by a preponderance of the evidence has satisfied you that surgical intervention would with reasonable probability have saved his life....
Id. at 521, 2 N.W.2d at 488 (emphasis added). While the Harvey court relieved the plaintiff of proving to a certainty (i.e., 100% success rate) that the decedent would have survived corrective surgery, it still required that the plaintiff prove the chance of that success by a probability as distinguished from a possibility. More recently, in Vitale v. Reddy, 150 Mich.App. 492, 389 N.W.2d 456 (1986), the Michigan Court of Appeals held that where there is proof that it is probable that an operation would have saved the patient’s life, a defendant physician’s negligent diagnosis or failure to treat can be found to have been the proximate cause of death. However, the court of appeals noted that when it is not probable that an operation would have saved the decedent’s life, a rational trier of fact must conclude that death would have occurred even if the physician had performed the operation. The court of appeals illustrated its holding, i.e., that a plaintiff may not recover where he or she cannot prove that the defendant physician’s failure to either properly diagnose or treat a patient in and of itself caused the patient’s death, with the following hypothetical:
A patient has contracted a disease which will eventually, in its natural course, lead to the patient’s death. The patient’s physician knows of an operation which, if performed on this patient, could possibly stop the progression of this disease. However, the odds are that it would not. The nature of this operation is such that there is minimal risk to the patient from the procedures employed in the operation itself. Assume also that the doctor fails to perform the operation and the patient dies.
While the plaintiff in this hypothetical situation cannot prove that the patient’s death was caused by the doctor, the plaintiff can prove that the doctor’s omission in failing to perform the operation caused the patient to lose the “chance” to stop the progression of his disease. If the chance that this patient would be helped by the operation were, for example, a 49% chance, it seems to us that the patient, or his estate, should justifiably *892be upset that the operation was not performed. While the odds suggest that the operation would not have been successful, there was a very substantial possibility or chance that the operation would have been successful. Assuming that the costs and risks involved with the operation would have been minimal, any rational person would have selected to undergo the operation. However, under traditional analysis, the doctor, or anyone else who caused the patient to lose his chance of recovery, would not be required to respond in damages.
Id. at 502-03, 389 N.W.2d at 460-61 (emphasis added). While the court of appeals refrained from formally defining “reasonable probability,” its holding that a plaintiff may not recover if he or she can prove only that the defendant physician caused the decedent to lose even a 49% chance to survive shows that, under Michigan law, “reasonable certainty” requires there to have been at least more than 50% chance of surviving corrective surgery notwithstanding the defendant physician’s negligent diagnosis and/or treatment. In accordance with the Michigan court’s holdings in Harvey and Vitale, if the chances of success of decedent Bell’s corrective surgery had been, in fact, 50% or less, then he would not have been entitled to recovery notwithstanding the defendant’s negligent failure to diagnose his abdominal aortic aneurysm prior to December 24, 1983. Thus, although I disagree with the court’s interpretation of Michigan law governing causation, I agree with the conclusion that the district court erred in its factual finding that, as of December 24, 1983, the likelihood of success of decedent Bell’s corrective surgery was less than 50% and, therefore, concur in the court’s decision to reverse.