Falcon v. Memorial Hospital

Memorial v Falcon FALCON MEMORIAL HOSPITAL 8). (Calendar 86721, 4, April Argued No. 86722. Docket Nos. 26, 1990. Rehearing September Mich 1208. denied 437 Decided Falcon, Falcon, Ruby J. as of the estate of Nena administratrix deceased, brought wrongful in the Monroe death action Kelso, Jr., Hospital, against Dr. S. N. Court Circuit anesthetist, alleging Denny, that the defen- Norma a nurse and during malpractice the dece- medical childbirth caused dants’ percent surviving opportunity 37.5 an amniotic dent to lose a J., court, Sullivan, L. The Daniel dismissed fluid embolism. finding plaintiff against parties, that the had not all the case prima negligence. on the issue of The made out a facie case Shepherd Kelly, P.J., Appeals, and and Court Michael JJ., unpub- remanded in an Simon, reversed and the case C. W. 83193). (Docket Supreme per opinion No. The lished curiam (1987). remand, appeal. denied leave 428 Mich 884 On Court defendants, granted summary disposition for the the court plaintiff finding not that the decedent had established fifty percent of survival have had than a would more procedure plaintiff’s expert by the witness not had a asserted P.J., Appeals, Jr., Holbrook, The D. E. been omitted. Court of Sawyer JJ., reversed, finding Batzer, and that the and J. M. required the omitted treat- to establish potential improving procedure the dece- ment or had probabil- preventing her death and that the dent’s 101586). (Docket greater fifty ity No. need not be than appeal. The defendants joined opinion by Levin, Archer, In an Justice Justice opinion by joined by Boyle, Cavanagh, Justice Justice Supreme Court held: compensable opportunity in medical of an to survive is Loss actions, malpractice proportion to of the lost the extent opportunity, though opportunity less even lost was probable fifty percent result an unfavorable must establish or could avoided. have been References 2d, Physicians, Surgeons, 367. and Other Healers §§ Am Jur causality. Malpractice: 10. 54 ALR4th "loss of chance” Medical Mich probably oppor- than not reduced the that the defendant more tunity avoiding harm. Levin, Archer, joined by stated further that Justice Justice of an for a more favorable result should be loss compensable. action, malpractice patient generally not a In a medical a is engaged physi- stranger physician, to but rather has the the physician perform cian’s services. The undertook to services for patient pay patient, the and the undertook to for the services. undertakings scope by physician hospital to the The or patient hospital patient physician the to the is not and or express agreement. generally a of There is an under- matter however, standing, patient expects that the law enforces. The expected training physician physicians to of of like do what is regard- community, physician expects paid in the and the to be degree the of there the less of chance that will be benefit to patient. doctors, engage only prevent Patients the services of not death, delay disease or but also to death and to defer or suffering If the ameliorate the associated with disease or death. expert testimony trier of fact were to decide on the basis of undertaking physician implementa- that the of a the included procedures physician tion of and that would tasks enable the accident, provide, opportunity in the event of the medical accident, implement for the to survive the failure procedure understanding the would be a breach of the or resulting undertaking. Injury malpractice from medical is not harm, physical only opportunity also includes but the loss of avoiding physical Physicians subject harm. should be to liabil- ity they up if fail to measure to the standard of care. Recognizing opportunity avoiding loss of a substantial physical being unnecessary harm as actionable it this makes plaintiff’s case to consider the whether action for medical malpractice wrongful can be maintained as an action for death. resulting malpractice The harm from the defendants’ asserted immediately before the occurred decedent’s death when the when, by medical accident occurred and of the failure to reason line, have inserted an intravenous became certain that she death, immediately At would die. the moment before her harm, i.e., decedent had a cause of action for the denial any opportunity living. Her claim survived her death be- all actions and cause claims survive death. The loss of a 37.5 percent opportunity living constitutes a of a loss substantial opportunity avoiding physical harm.

While decedent’s cause of action accrued before her Falcon suffering pain death, from did not suffer conscious she procedures mo- implement between the the omitted failure to time of her and the accident occurred that the medical ment later, having entire time. been sedated death a few minutes damages 37.5 times the appropriate measure of wrongful damages for a death. recoverable concurring, Cavanagh, joined by Justice Boyle, Justice injury for recognize as an to survive a lost allowed, long as the as should be tort which probably than not caused negligence more of the defendant opportunity. loss of Affirmed. Brickley Griffin, joined by Justices Riley, Chief Justice may wrongful dissenting, death stated that an action summary disposition it is uncon- where a motion for survive defendant’s cannot show tested that produce evi- negligence and will the decedent’s death caused an increased would have had the decedent dence case, defendant, in this had not as of survival catheter before negligently insert an intravenous failed to administering immediately block anaesthesia. saddle after omission that the defendant’s cannot show Where death, degree of probably the certitude a cause of the was recognition lacking. imposition liability justifying is fundamentally loss item of of mere chance as a recoverable definition, By the essential notion of causation. contradicts compensate theory lost chance of survival possibility omission caused that the defendant’s for a mere death. plaintiff’s actually cause the did not If a dеfendant’s acts requiring justification defen- injury for no rational there is damages. plaintiff’s It is the dant to bear the cost negli- between plaintiff’s causal connection burden to show a merely go jury supported gence injury. to a A case cannot something might speculation been a cause sheer something possibility the cause. there was a or that certainty regarding degree causation There must be some may a medical defendant jury determine as fact that before a compensate plaintiff’s injury and thus must did cause requirement dispense to abandon the plaintiff. this is To with concept of truth-seeking in the of the law. Inherent function degree the notion foresee- of certitude and causation are a case, evidence. ability. absence of such there was a total In this (1989) 17; App affirmed. 443 NW2d 431 178 Mich 436 Mich Levin, Malpractice Opportunity. —

Negligence — Medical Lost compensable opportunity in medical to survive is Loss of an actions, proportion malpractice of the lost to the extent though opportunity, lost was less than even probable fifty percent that an unfavorable result avoided; must establish would or could have been oppor- probably than not reduced the that the defendant more avoiding tunity harm. Lopatin, Miller, Freedman, Bluestone, Erlich, Franklin) (by Lee R. for Rosen & Bartnick plaintiff. (by Cooney, G. Kam-

Plunkett & P.C. Robert enec), Hospital. for defendant

Weipert Weipert (by Weipert) Michael A. & defendant Kelso.

Amici Curiae: Wright,

Dickinson, Moon, Dusen & Free- Van Hughes (by Robert W. man Barbara Erad and Powell) Michigan for the Defense Trial Counsel. Wagner Kenney,

Kitch, Saurbier, Drutchas, & Zitterman), Michigan (by Healy P.C. Susan for the Hospital Association. (by Schureman, Frakes, & Pris- Glass Wulfmeier Schwarze) Michigan Society L.

cilla Hospital for the Management. Risk Granzotto, Linkner, Mark Monica and Charles Michigan Lawyers P. for the Trial Associ- Burbach ation. affirm). (to deposition testimony J. The of

Levin, 447 Memorial Falcon v Levin, tended to expert witness Falcon’s1 Ruby S. N. physician, the defendant that had show wit- Jr., expert Kelso, procedures followed the followed, patient, have been claims should ness Falcon, 37.5 have had a would Nena J. medical accident surviving

opportunity2 cause of her death. was a because complaint3

The trial court dismissed Falcon that Nena did not show Falcon’s evidence percent— fifty as more than probably—defined had not been procedure survived reversed, stating of Appeals The Court omitted. the omitted "establish that Falcon need for im- potential or had the procedure treatment or preventing proving patient’s Hosp, v Memorial death.” Falcon 178 patient’s (1989). 17, 26-27; 443 NW2d 431 The App Mich must show "while Court added 1 Falcon, plaintiff Ruby of her administratrix estate The granddaughter, Nena Falcon. "opportunity” interchangeably, can be used While "chance” and any cause of events that can be "chance” includes "the absence understood, controlled,” predicted, Dictionary of Random House ed, 344, Language, unabridged, p "opportunity” English 2d goal.” for attainment of a includes "a situation or condition favorable Id., 1359. 1985, granted a defendants moved for and were At the trial experts Falcon’s were not directed verdict. The court ruled that familiar with the the defendant Monroe, Michigan, the standard of care in situs hospital. regard appeal It on Falcon’s that without was contended whether qualifications correctly of Falcon’s on the the circuit court ruled experts, properly a verdict the court directed because Falcon medical had present adequate of causation. failed to evidence qualification Appeals on the issue of the The Court of reversed issue, experts, to reach the causation Falcon’s the declined remanded per Hosp, unpublished opinion for trial. Falcon v Memorial case (Docket Appeals, August No. decided curiam of the Court 83193). (1987). appeal Mich 884 in this Court denied. 428 Leave to was filed, remand, summary judgment was which a motion On provide again argued sufficient that Falcon would be unable question jury. trial court proof granted for the to raise a of causation Appeals Falcon v reversed. motion. The Court defendants’ (1989). 17; Hosp, App 178 Mich NW2d 443

448 436 Mich Levin, probability the treatment would be some greater probability not be successful, need fifty percent.”4 affirm. than We

i claiming malpractice ordinar- medical Plaintiffs ily said to have contend that the act or omission malpractice physical medical caused constituted patient. to the Falcon so contends harm instant although claiming case, Falcon Nena only percent opportunity of had a 37.5 would have surviving the medical accident that was a cause of physician her death had the defendant followed procedures expert claims should have been fifty-one percent followed, and hence less than a 4 Appeals Rogers The Court of looked to this Court’s decisions in v (1912), Silber, Kee, 561-562; Harvey Mich NW 510, 520; (1942), 300 Mich NW2d 483 and concluded that a probability need treatment would have been successful. establish that there was some that the omitted Rogers, patient "calling physician, is In this Court said that a approved experience of entitled to methods of treatment from which profession probable indicates results are and to be beneficial and, anticipated; recovery, if not an entire ultimate condition better testimony presents than if left to chance. . . . We think such of fact for the and an issue jury—on probability, it is true. The issues of sickness death, forecast, healing, life and are too uncertain to be otherwise negligence deprives probability but which a man of such is more than Id., pp injuria sine damno.” 561-562. Harvey, Harvey, estate of Garfield administrator a deceased, brought against malpractice the defendants for action negligent diagnosis to the effect there was a would have saved mony would have saved Expert testimony of the location of a bullet. was good probability operation fairly that an patient’s This said: "There is testi- life. Court probability operation the record that there was that an Harvey’s negligent diagnosis life. Therefore the Id., proximate could be said to have been the 520. cause of the death.” connection, noteworthy jury In this the standard civil "probable”: 'proxi- do not define "When I use the words instructions mate cause’ mean first, negligent I must have been a that the conduct second, plaintiff’s injury, plaintiff’s injury must cause of that the negligent probable havе been a natural and result of the conduct.” SJI2d 15.01. Falcon v Memorial Opinion by Levin, J. surviving, opportunity of the defendants neverthe- less caused Nena Falcon’s death. proofs

The defendants contend that because the at a trial of Falcon’s claim show that it probable, percent, fifty measured as more physical that Nena Falcon would have avoided procedure omitted, harm had the not been Falcon negligence cannot show that the asserted of defen- physical They dants caused her harm. also contend wrong- that Falcon cannot maintain an action for only ful death because such an action can be plaintiff maintained where the can that establish again, death, and, the act or omission caused proofs they Falcon’s will fall short because will show that there would have been a 37.5 percent opportunity avoiding of death and not a percent fifty pro- more than cedure not been omitted. had the

n recovery opportu- Some courts disallow for lost nity patient unless the can establish that physical

would not have suffered the harm negligence, but for or, least, the defendant’s at probable, it is more measured as more than fifty percent,5 negligence, that, but for such physical would not have suffered the harm.6_

5 probable puts premium It cause [the a on each standard] party’s willing being search for the witness. Human nature is, legal what it for and the difference between scientific and tests "probability” creating confusion, expert every often for who witness evaluates the lost chance at there is another 49% [Thompson City who estimates it at closer to v Sun 51%. Hosp, Inc, 597, Community 607; (1984).] 141 Ariz 688 P2d 605 6 Cooper Cincinnati, Charity v Sisters of of St 2d Ohio 253; (1971), testimony 272 NE2d 97 the court concluded that "[m]aybe fifty percent” provide survival . . . around does not a 436 Mich Opinion by Levin, probable, as more the more measured

Under plain- fifty percent, approach causation, than patient would have tiff who establishes fifty percent opportunity not of more than a had suffering physical not

harm had the defendаnt negligently, one hundred acted recovers damages. opportunity is The better than even the compensated certainty, although if it

as were a quoted finding probability. frequently passage, In a the court basis for explained: proof understandably attractive Lesser standards are itself, physical being, malpractice well and life are cases where strong humanity subject litigation. the tends to intuitive sense emotionally direct that in an us toward conclusion person survival, compen- wrongful injured be action for sated for remoteness. would be so loose that death should any regardless of its loss However, trepidations we that such rule injustice produce than more though authority allowing justice. rule there exists for a Even proof meeting upon not based causation evidence persuaded by logic. probability, their are not the standard of we [Id., pp 251-252.] 1984) Inc, (Fla, Bldg, Similarly Gooding Univ Hosp see must v 445 So 2d 1015 (a likely injury more than not resulted from show 1984) (Fla, conduct); Lazenby, Beisel 2d defendant’s v So (in malpractice negligence actions it must be that the medical shown McCardle, likely damages); caused the Hanselmann more 275 defendant’s (1980)(a 46; plaintiff 267 531 must show that but for the SC SE2d error, averted); would Cornfeldt v Ton death have been 1980) (Minn, (a plaintiff gen, show it was 295 NW2d 638 must that negli probable more gence); than not that death resulted from doctor’s (CA 1974) (a States, 5, Rewis v United 503 F2d 1202 prove proper practice that if the doctor had done what medical must likely required, it is than not that the would have been more chüd (CA 1986) (the Lund, 10, saved); injury probabilities); proof Alfonso v was caused 783 F2d 958 that the negligence show defendant must Inc, Center, App Morgenroth 54 v Medical Cal Pacific (1976) 521; Rptr (probability 126 Cal 681 is the for 3d standard cause); Summer, App 468; proximate Curry Ill 483 711 v 136 3d NE2d (1985) (a plaintiff must show the decedent would have had a that survival); Tappan than chance of v Florida Medical better even (Fla 1986)(a Center, Inc, prove App, 488 630 must that So 2d diagnosis likely proper than it was not that with the treatment more 1, lived); Anthony Hosp have Service Dist No decedent would 1985) (La (expert required App, testimony is on 477 So 2d 1180 persоn probably not had whether the proper more than would survived diagnosis given). or treatment been Falcon v Levin, signifi- patient’s result are better chances a percent.7 cantly hundred than one less ninety- patient say a have had a To given percent opportunity of survival nine proper physi- treatment, not mean does negligence if the in fact was the cause cian’s patient among the unfortunate would have been physician’s A would have died. who one carelessness physical percent similarly, may, cause be the actual although one the surviving had harm with flaw- even attention.8 less medical probable say simply that the more

All this standard, as other standards as well than analytic to be used causation, devices—tools are They judgments. making do not causation certainty in yield truth. Absolute ultimate cannot matters rarity.9 is a of causation physi- permitted courts have Other compen probable approach to over thus tends than not The more particular plaintiffs. McCormick stated: Professor sate insist, single specific in claims for loss of the courts Should substantially showing advantage, upon that the chances were nothing? adopt giving upon To this all or than even and

better overlavishness 119.] in oscillation between seems to result attitude and 31, p [McCormick, Damages, niggardliness. § prob present likely than standard not] Under [more Oklahoma, expert negligence ability applied in all cases i.e., words,” "magic con speak that the defendant’s must injury, probably to ensure than not caused duct more a verdict will [McKellips v St not be directed for the defendant. (Okla, Inc, 1987).] Hosp, 741 P2d Francis it, forget However, although may is hard to we often theory: teachings of quarrel absolute absolute and the decision one of basic with certainty past events is no more realizable about theory [Kaplan, certainty future. Decision about the 1065,1071 (1968).] factfínding process, 20 Stan L R 452 436 Mich 443 Levin, showing that the lost opportunity cal harm on a substantial, less, percent fac- fifty was a albeit the harm: producing tor in evolving developed An has to rеlax the trend proof ordi sufficiency standard for causation provide narily required of a a basis upon jury may in the which consider causation [McKellips v St "lost chance of survival” cases. (Okla, Inc, 467, Hosp, Francis P2d 1987).][10] recognize identify Courts have come difficulties of ing, defining, malpractice proving injury justifies types in certain of medical application cases of a standard of more causation that is flexible than that used in conventional 399, Dollinger, 413; tort claims. 95 NJ 471 A2d 405 [Evers (1984).] States, (CA 1988), 6, Bell v United F2d the United Appeals States Court of court erred in for the Sixth Circuit held that the district entering judgment on the the defendant basis that patient greater fifty percent the surviving did not have a than chance of duty when the of care was The court also con- breached. incorrectly cluded survival to be less than district court found Bell’s chances of fifty percent. The court said that this Court’s decisions "illustrate that the plaintiff Michigan Supreme must nosed and treated a medical condition within the time doctor the 50%.” long ago rejected Court that a notion prove certainty physician diag- with mathematical that had a period that a so, exercising a reasonable standard of care would have done probability patient that the recovered was better Bell, "Rather, supra, p 889. The court continued: under Michi- law,

gan probability’ proven legally a 'reasonable is if a finder of fact had, presented could conclude from the evidence the words of the surviving that the expert good’ Harvey, 'fairly witness chance of Although operation. acknowledge imprecision we nearly always necessary companion any legal which is the stan- rejects quantitative analysis, Michigan dard that law leaves no doubt rejected analysis qualitative that it has The court concluded: such in favor of a one.” Id. Michigan requires proof All the deceased had a probability” "reasonable if the medical condition appropriate had been discovered and treated within time. [Id., p 883.] probability” "fairly good” The Court defined a "reasonаble chance. as a 453 Memorial Falcon v Opinion Levin, J. need held that Some courts awas conduct the defendant’s show physical producing factor substantial of a for loss courts allow Other harm.11 achieving a or less percent fifty a stan- articulating clearly without result better have so A of courts number of causation.12 dard in the Restatement language the basis of held on Torts, 2d.13

iv woman, gave Falcon, nineteen-year-old Nena Falcon, Eugene Justice baby, healthy birth to a 21, 1973. Mo- March morning hours of early coughed, Nena Falcon ‍​​​‌​​‌‌‌‌‌‌​‌​‌‌​‌​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​‌​​‍delivery, after ments suffered a convulsed, cyanotic, became gagged, At- collapse. cardiac respiratory complete 11 (1978); Bashline, 256; Scafidi v 392 A2d 1280 (1988); Hamil v 481 Pa States, Seiler, 576; Super v United 543 A2d 95 Chester 25 NJ States, Supp (WD Pa, 1975); F Supp 595 Snead v United 403 F 658 713 458 Hosp, (D DC, Rouge 2d 1984);Hastings 498 So General v Baton (W Va, 1983); CAMC, (La, 1986); Jones 316 v 305 SE2d Thornton (1981); 410; Hosp, v 431 A2d 920 Roberson 494 Pa v Montefiore (1984); Counselman, 1006; Trust Co v 149 Northern 235 Kan 686 P2d (1986). 479; App Hosp, 6 143 Ill 3d 493 NE2d A Louis Weiss 12 177; Hosp, 508 Kallenberg 357 NYS2d Israel 45 AD2d v Beth (the (1975) 615; (1974), 719; 128 374 NYS2d 337 NE2d aff’d 37 NY2d forty percent opportunity patient proper App twenty survival with had a Dickerson, Authority treatment); 182 Ga v Richmond Co (1987) (the fifty patient 601; a less than 548 had 356 SE2d States, Supp survival); F percent opportunity United 642 Morales v Turbin, 1986) (survival (D Cloys PR, possibility). 608 was a 269 (Tex 1980), App, said that Civ the court SW2d "reasonably connection between close causal must establish complaining resulting injury defending party’s conduct and party.” consideration, undertakes, gratuitously or for One who recognize neces as to another which he should render services subject person things, protection sary to failure to exercise reasonable if harm of the other’s for the resulting physical from his liability harm to the other undertaking, perform his care to (a) risk of such increases the to exercise such care his failure Torts, 2d, 323, p 135.] .... Restatement § [2 Mich Levin,

tempts She was to revive her were unsuccessful.14 pronounced dead soon thereafter. report autopsy fluid indicated that amniotic unpreventable complication

embolism,15 an approximately twenty ten or occurs thousand one out of

births, was the оf death. The sur- cause according is, rate of amniotic fluid embolism vival to Falcon’s travenous line is connected to the the onset of the embolism. In this nous expert witness, 37.5 if an in- before

case, intrave- line had not been established.16 theory physician Falcon’s is that or nurse had a anesthetist administering inserted an intravenous line before spinal anesthetic to assist dealing complica- physician any with of several tions, the intravenous line could have been used to 14 Kelso, birth, physician Dr. at the testified that attendance attempted cardiopulmonary he He testified that a resuscitation. also attempted nurse to insert an intravenous line into Falcon after she convulse, began to but could not do so because Falcon’s veins had collapsed cian, apparently physi and were blocked. He added that another down,” is, Burroughs, attempted Dr. a "cut tried to cut he directly into Falcon’s vein in order to administer sodium bicarbonate. Burroughs inject any The "cut down” was medication into Falcon’s circulation had ceased. Dr. not unsuccessful. could circulatory system point because at that her 15An amniotic fluid embolism occurs when the amniotic fluid system, through circulatory infuses into the mother’s rent most often through pelvic the uterus or veins. The amniotic mother’s may fluid is not clear. It contain undissolved matter such as fetal skin cells, (excrement lanugo, mucus, or meconium from the fetus’ intesti tract). up nal The debris-filled fluid is taken into the mother’s circula tory system, pumped through lungs her and into her where heart often, lodges, causing injury, embolus embolism debris in the Amniotic death. fluid may diagnosed presence autopsy by be in an of amniotic body’s lungs. plaintiff’s expert percent The testified that the 37.5 survival rate computed fifty percent is amniotic fluid embolism will die within an hour. Of the as follows: of the women who suffer an remaining fifty percent, approximately bleeding develop half of those will or coagulation problem percent twenty-five called "dic.” who Of Die, develop Therefore, half will survive. the survival rate women percent. who suffer amniotic fluid embolism is 37.5 Dr. Kelso testified that the rate fluid survival of amniotic embolism percent. figure percent is zero account for cases where an exact raised the He survival to five to diagnosis found. cannot be Falcon v Levin, life-saving Falcon’s circula- fluids into Nena infuse percent opportu- providing system, tory 37.5 her a inserting surviving. By nity the intravenous not deprived physician her of a 37.5 line, the surviving the embolism. question an caused a defendant whether especially readily answered,17 and is is not event present perplexing as those in circumstances such defendant’s failure where the in the instant case uncertainty responsible largely for act is regarding causation.18 case inserted in the instant the defendants

Had things line, would have of two intravenous one happened, lived, or she Falcon would Nena uncertainty be no have died.19There would perhaps nothing law which has in the entire field of There is upon opinions disagreement, are which the called forth more in (5th ed), Keeton, Torts & a welter of confusion. [Prosser such 41, p § 263.] charged supra, p physician Dollinger, was n 10 In Evers v failing diagnose malpractice cancer. The breast medical with Jersey Supreme observed: Court of New supra], conspicuous of the case Hamil A feature of [n charged having us, in a failed with is that defendant

before source; against protect hence duty harm from another what occur but also what did fact-finder must consider might [Emphasis original.] .... in have occurred 60, cause-in-fact, Malone, LR 61 9 Stan on also Ruminations See 302, 312-313; (1956); (1985). Twp, 486 A2d 836 98 NJ v Manchester Hake 19 play at were forces of causation In this case the alternative physician the intra- unusually had connected If Nena Falcon’s few. period of time a short clear within line it would become venous whether physician’s to act is failure have lived or died. she would uncertainty regarding primary causation. source of the charged negligence is a where the cases In loss generally diagnose malignancy, more there are physician’s variables to failure provider a heаlth care Where in the causation calculus. 436 Mich 443 456 Opinion by Levin, of the defendants caused whether the omissions destiny her death.20 Falcon’s would have been de- cancer, grow diagnose delay a tumor fatted to cancer to metastasize. Treatment sue. and See allows to programs operations may en end, delay diagnosis the causal relation between the in by intervening patient’s may clouded causal factors. death be (CA Milner, 8, 1970); Stover, v 428 F2d 598 O’Brien v 443 Jeanes (D (CA 8, States, 1971); Mays Supp 608 F 1476 F2d 1013 Colo, v United Snead, States, 1985); supra; Supp n 11 483 F James v United (ND Cal, v Louvar, (Iowa, 1980); 1986); 131 581 DeBurkarte 393 NW2d (Tenn, Smith, 1979); Group 73 v Truan v 578 SW2d Herskovits Health Sound, 609; Cooperative Puget (1983); 99 Wash 2d 664 P2d 474 Evers, Stallworth, supra; Hosp, supra; n 10 Jones v Montefiore n 11 Morrison v (1985). 196; App 73 326 SE2d 387 NC flexibility addressing need for in causation Courts have seen the provide safety where a defendant fails devices. See 4 Wolfstone & rescue a seaman or to to (2d ed), 20.2, Harper, Gray, pp 89-113; James & Torts § Wolfstone, chance, Recovery damages for the loss of a 121, Malone, Technique Q 130-132; supra, pp 1982 Medical Trial n 18 75-79. Supreme The California Court observed: evidentiary primarily void in the action instant results [T]he provide lifeguard from defendants’ failure to occurrences within the lifeguard to observe pool area. . . . The absence of such a only stripped instant thus not case decedents of entitled, significant degree protection they to which were deprived plaintiffs present but also a means of defini- tively establishing leading drownings. the facts to the [Haft Hotel, 756, 771; Rptr 745; Lone Palm 3d 91 Cal Cal P2d (1970).] (CA Carriers, Inc, 4, In Gardner v Nat’l Bulk 310 F2d 1962), reported missing a seaman was not until more than five hours urged after he was last seen. The defendant that causation had not been established because there was no evidence that the man was consequence alive and could have been saved. The court said that the possibility prove of the master’s default "obliterated all to of evidence search, undertaken, whether a would have succeeded or failed.” "What, then, culpable actor has done his initial is, first, negligent which probable which he must difficult if not dangerous act to have set motion a force injured person scope embraces within the of its mischief; next, conjunction with circumstances contemplate, be held have made more proving possible impossible the means of damaging results of his own act or the similar results of the act of another. He has violated not right remedial the victim’s substantive security, culpably impaired but he has also the latter’s right establishing liability. By confusing his act 457 Falcon v Opinion Levin, J. bv health care by her possibly fate and not cided for Appeals Court of The United States providers. Circuit, observed: Fourth inaction negligent action or a defendant’s When person’s chance effectively terminated has survival, mouth in the defendant’s it does not lie to the measure of conjectures as to raise possibility of put beyond the that he has chances realization. of survival is answerable. to an absolute pened allow possibility any substantial If there was it, destroyed he has and the defendant Rarely possible it to demonstrate is hap certainty what would wrongdoer did not that the circumstances in the pass. does not to come to The law require existing circumstances certainty patient would have show to a lived had she operated and on hospitalized

been Silber, 510; 2 NW2d promptly. Harvey v 300 Mich States, 368 F2d 626, (1942).[21] v United 483 632 [Hicks (CA 4, 1966).22Emphasis in original.]_ with environmental victim’s Cook v Rep "The then shifted to the 1, 3-4 legal consequence Lewis, power (1951). ^[1951] proof. [Gardner, supra, p conditions, Can wrongdoer of that Sup Ct he is, 830, has, 287, I exculpate should 832-33 n 4.] effect, say, [1952]; himself destroyed that the onus 1 Dom L . . . .” King similarly explained: Professor compensated also be for Destruction of a should conduct, it of fairness. But for the defendant’s tortious reasons grapple impondera necessary to with the would not have been bles of chance. Fate would have A run its course. defendant’s ticket,” doing destroys only destroys in so tort not any a "raffle knowing have fared how that ticket would chance of ever valuation, Causation, drawing. [King, chance in involving preexisting persоnal injury fu conditions and torts (1981). consequences, 1378 See also ture 90 Yale LJ 176; Hosp, 210 Va SE2d Whitfield v Whittaker Memorial 310-311, (1969), Manchester, supra, pp n 18 Hake Wolfstone, supra, p & Wolfstone 133.] 21See n 4. (1957), 459, 473-474; Rudner, 84 NW2d 816 In Stewart v 349 Mich 436 Mich Levin,

VI seeking ordinary tort In an action stranger physical harm, the a to the defendant is duty imposed by operation plaintiff of law imposed independently any undertaking by of is the practice, claiming In an action medical mal-

defendant. patient generally however, the is not a stranger engaged Generally, patient the defendant. to physician. of the defendant

the services physician perform undertook to for The the services patient

patient, pay and the undertook to or provide payment for the services. undertakings scope by physician a patient or

The hospital patient to the to the hospital physician express agreement. generally or is not a matter of is, however,

There an under- standing that the law enforces in the absence of express agreement. patient expects physi- The expected physicians cian to do that which is of training community, physician in like expects and the patient provide pay payment to or services, whether the likelihood of there in being any patient only fact through fifty percent to the one benefit is per- greater fifty cent. scope assert, effect, in

The defendants that the undertaking did their not include acts or omissions likely patient only to benefit the to the extent Court, addressing question this perform plaintiff whether a doctor’s failure to way any section on the in caused the cesarean baby, to lose her said: facts, They jury] justified finding, would be on these [the home, surgery, that if had been sent to instead of back latest) (at morning September baby on the 4th that her is, course, There no would have been delivered alive. lute child our abso- might certainty slipped, or the thereof. The knife beyond might any have died at instant because of forces control, comprehension. beyond, possibly, even our Falcon v Levin, J. through fifty percent—or they should at least one liability subject for aсts or omissions be only likely to the to have caused harm extent through percent. they fifty They contend one subject liability only be for acts or should likely, fifty to the of more than omissions extent percent, physical harm to have caused patient: (which reasoning of the district court herein position Cooper

is similar to the extreme taken Sisters),[23] essence, open v declares on season critically injured persons providers ill or as care grossest would be free of liability for even the malpractice fifty-fifty had surviving chance of injury the disease or even with proper Counselman, treatment. [Roberson 1006, 1021; Kan (1984).] P2d 149 engage doctors, Patients the services of prevent delay death, to and to disease or but also to death suffering or

defer ameliorate the associated with disease or If death. the trier of fact were to expert testimony, decide, on the basis of that the undertaking physician of the defendant included implementation procedures that, the of tasks and Falcon, in the case of Nena would have enabled physician medically persons, the and other trained present delivery, pro- who were at the time to of her, vide the event of the medical accident that opportunity occurred, an accident, to survive the understanding failure to do so awas breach of the or undertaking.24_ n 6. See 24 parent permitted against hospital A was to maintain an action physicians alleged injury resulting for enhancement of to her son county hospital surgery

from the transfer of her son to a Thompson City Community Hosp, supra, p v Sun n 5 608. The court held: Mich Opinion by Levin, J. expert testimony Falcon, the of Falcon’s

Nena percent credited, have had a 37.5 is would witness surviving imple- opportunity the of had defendants procedures expert the Falcon’s asserts mented implemented. reducing Nena should have been living failing to insert of Falcon’s physician line, her her caused an intravenous probably although harm, said, it cannot be more not, A than opportunity he caused her death. 37.5 living opportu- hardly the of kind willingly nity any us allow our providers ignore. If, care as Falcon’s health to implementation pro- expert asserts, such the part understanding the under- cedures was pro- taking, implemented the the failure to have understanding or cedures was a breach of the undertaking. physician be, is, sub- and should although ject liability breach, for such Nena fifty likely, Falcon was measured as more protection of the chance interest was within because range duty harm defendant and the breached type which the defendant was which followed was from protected plaintiff, jury may con- be allowed to in the of harm on issue of sider causation. increase jury If the finds that defendant’s failure to exercise increased the of the harm he undertook reasonable care risk prevent, may "probability” this fact find a that defen- from negligence [Emphasis damage. dant’s cause of added.] holding, In so the court observed: further, dealing must we are with the We remember protect limited class of cases in which defendant undertook to interrupted particular negligently from a harm and events, increasing thus the risk of that harm. the chain impossible negligent to find Defendant’s act or omission made certainty happened and thus forced the with what would have proverbial crystal to decide court to look at the ball order determinations, course, might have been. Such what traditionally jury province than the been the of the rather judge. Emphasis [Id. added.] Falcon v Memorial Opinion by Levin, J. percent, to die as soon as ‍​​​‌​​‌‌‌‌‌‌​‌​‌‌​‌​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​‌​​‍the medical accident negligence physician occurred and the elimi- fifty opportunity nated a surviving. than less injury resulting We thus see from medical malpractice only, necessarily, physical as not or including opportunity harm, but also as the loss of avoiding physical patient goes harm. A to a physician precisely avoiding, ameliorating, improve opportunities his reducing physical

or harm pain suffering. and and gave long

Women birth to children before there physicians hospitals were or even A midwives. engages physician woman who of a services hosрital and enters a to have a child does so to pain suffering reduce and to increase the surviving surviving likelihood of her and the child good though childbirth in a state of health even the likelihood of the woman and child not surviv- ing good health without such services is far less fifty percent. why go physi- That is women physicians cians. That is what undertake to do. they paid They That is what are, are for. subject liability they be, should fail to meas- up ure to the standard of care.

VII recognized, A number of courts have as we would, loss of an for a more favorable distinguished result, as from the unfavorable re compensable malpractice sult, as in medical act approach, damages ions.25 Under this are recover opportunity although op able for the loss of portunity even, lost was less than and thus it is Keeton, §41, supra, p 272; See Prosser & n 17 Wolfstone & Wolfstone, supra, pp n 20 129-130. 436 443 Mich by Opinion Levin, than that the unfavorable more not probable

not avoided.26 or could have been result would must establish approach, plaintiff Under this He prove, must more-probable-than-not causation.27 not, re- the defendant more probably avoiding harm. opportunity duced the 127, 133; Humberger, Aasheim Mont (1985), commenced an 695 P2d 824 his Humberger Dr. against alleging action area, diagnostic films of her knee failure order less losing opportunity resulted in her natural and of her surgery preserving radical Montana treated the Supreme knee. Court of avoiding opportunity physical reduction in the in recognition patients as harm actionable in- claiming malpractice are generally medical King explains: Professor [Cjonsider negligently the case a doctor fails which diagnose inoperable. patient’s until a cancerous condition has become diagnosis timely Assume further that even with a recovering patient had chance would have a 30% long surviving are from disease and over term. There ways handling ap- such a Under the two proach, case. traditional recovering this loss of a not-better-than-even compensable would not be it did not from appear cancer because likely not that would have more [than] damages, proper any, would survived with care. Recoverable depend appeared to which it killed on the extent cancer diagnosis patient treatment, timely than it the and sis additional allow the term survival sooner would with diagno- delay and on extent to which condition, causing aggravated patient’s by such as however, approach, pain. A more rational though loss of of cure for the the chance even probability long- not better than even. The chance was damages would be reflected in the amount of loss of the While the here awarded for the chance. preponderance prove by he was could evidence that negligence, by by he denied cure the defendant’s could show preponderance deprived that he was of a chance of a cure. 30% [King, supra, pp n 20 1363-1364.] 1378-1380, King, supra, pp discussing analogy, n 20 cases See recognizing injury. to win as a distinct loss of chance contests Falcon v Memorial Levin, J. alleged jured at the time of the mal- or diseased practice: including chance” within We feel that "loss of recognizes

causality cal treatment are diseased or nose or recover. the realities inherent medi- negligence litigation. People who seek medical diag- injured. Failure to properly denies the treat Including opportunity this lost within the gives recognition causality embrace to real loss consequence of medical failure. The trier of determine whether de- fact should negligence in fendant’s was a substantial factor reducing result. obtaining plaintiff’s chances of a better Louvar, 131, In DeBurkarte v 135 NW2d (Iowa, 1986), Supreme explained the Court of Iowa viewing injury the difference the as a between loss viewing opportunity life of survive an illness: as loss recognize plaintiff’s injury may the We be life, shortening viewed as a we would tiffs did not tion: there probably her from of her in which case agree plain with the defendant the produce substantial evidence on causa plaintiff’s was no evidence cancer spread September, preventing after being cured. On the [Citation omitted.] hand, 323(a)][28] other cates, as the Restatement indi [§ injury may her also be viewed as a lost jury The chance survive the cancer. could then from find to the evidence the defendant’s failure diagnose probably and treat cancer caused a plaintiff’s substantial survive reduction in the chance to it.[29] app The court concluded: "We believe the better n 13. See expert "opined Plaintiff’s witnesses that within a reasonable plaintiff’s surviving degree years certainty the of medical chances ten fifty high eighty percent would have been at least and as as lump September, Id. had 1981.” been removed 436 Mich Levin, J. recovery, for the lost but is to allow roach[30] origi (Emphasis Id., 136. of survival.” nal.) permitted Washington Supreme Court The representative personal to main expert testimony there an action where tain point percentage reduction—from fourteen of a twenty-five percent—in thirty-nine opportunity patient’s survival, which was for diagnosis delay in from a to have resulted claimed Cooper Group lung Health cancer. Herskovits Puget Sound, 609; 664 P2d 99 Wash 2d ative (1983). opinions, separate majority, in two 474 agreed, "[c]ausing reduction of chance) (loss opportunity one’s to recover negligence, however, not necessitate a total does negligent party recovery against for all dam ages by the victim’s death.”31 caused concurring opinion Herskovits, in which

In a majority joined, comprising judges of six four law was reviewed loss of case following were conclusions stated:_ 30 recognize the action for lost said that "most courts The court DeBurkarte, supra, malpractice.” n 19 and medical chance of survival p 136. The court added: allowing recovery a not-better- there was In nine of the cases expert testimony the and a lack of

than-even chance of survival [Id., pp prevented recovery. negligence probably defendant’s original.] Emphasis in 136-137. (O’Brien, supra, n 19 three of the cases The court noted that in supra), James, accompanying supra, Mays, n 46 the text n 19 survival,” damages patient’s chance of limited "to the lost courts cases, 137, DeBurkarte, p supra, in the court viewed and that two survived, as underlying injury, the lost chance of and not “the approach compensable.” of those two Id. The court was critical of the underlying injury permitting for the because in courts physician’s negligence requiring expert testimony that a without departed underlying injury, probably the court had from caused the principles of causation. traditional 31 634-635). (lead 619, concurring opinion, pp opinion, Id. Falcon v Memorial 465 Levin, J. First, the critical element each of cases is negligence deprived the defendant’s either surviving a potentially decedent of chance To fatal condition or reduced that chance. summa States[32] rize, in Hicks v United the decedent was Milner deprived ^[33] of a the decedent’s probability survival; survival was in Jeanes v O’Brien percent percent; reduced from 35 24 Stover,[34] v percent the decedent’s 30 chance of amount; survival was reduced an indeterminate States[35] in McBride v United the decedent was in Kallen deprived survival; probability berg v Beth Israel Hosp[36] the decedent was de prived percent percent of a to 40 chance of Bashline[37] survival; in Hamil v the decedent was deprived survival; of 75a chance of States, supra, p accompanying Hicks v United 632. See text n 22. Milner, p 604, supra, plaintiff alleged In Jeanes v n 19 promptly containing the defendants failed to from her son’s throat Institute that that that send slides tissue taken Hospital to Barnes and to the Armed Forces Pathology diagnosis. plaintiff’s expert The testified diagnosis early lymphosarcoma, and treatment of the disease life, ultimately took the decedent’s He essential. also testified during delay slides, in transmission of the the decedent’s (when progressed stage percent twenty- thirty-five cancer chance of from one there is a survival) (when stage two survival decreases to percent). four The court concluded that this sufficient was evidence from which to infer that the decedent’s "life would have been saved prolonged pain or at least treatment.” and his lessened had he received earlier added.) (Emphasis 34 O’Brien, supra, p 1019, plaintiff alleged n 19 diagnose plaintiff’s expert decedent’s dentist had failed to cancer. The patient’s probably present testified that cancer was when the began suspect patient systemic dentist first ailment, had some it, biopsy that a tissue would have revealed that the treated, probably could have been longer and that she would have lived comfortably. expert and more also testified that type overall survival rate from the patient cancer that had infected the thirty percent and that of survival is considerably improved expert testimony diagnosis. early with The court said that the present jury question of causation was sufficient to a approved under Iowa law. The court cited Jeanes and Hicks and as an damages patient’s element of survival, the reduction of the "chances for living longer comfortably or at least and more . . . .” (CA 1972). States, McBride United 462 F2d 72 36Kallenberg Hosp, supra. v Beth Israel n 12 Bashline, supra. Hamil v n 11 Mich Levin, (ND Cal, Supp F v United States

James [483 deprived of an was indeter 1980)][38] the decedent survival, no how small. of matter minate chance of the chance survival The three cases where McBride, (Hicks, and greater than 50 Hamil) focus on the unexceptional they in that are injury, they the and the as death of decedent beyond to the require proximate cause be shown is consistent probabilities. Such result balance of state, existing principles this with with jurisdictions cited defendant. cases from other remaining de- four cases allowed prove spite probability plaintiffs’ failure (Jeanes, O’Brien, cases Three these survival. and James) Hicks, signiñcantly from the differ McBride, reduction in they view survival, group and Hamil that or of the chance of loss itself, injury. as the Under rather than death cases, liable, not these is for all defendant death, arising but damages from or damages to the extent of diminished lost cases, chance of survival. The fourth of these Kallenberg, differs the оther three that from compensable injury. on the as focuses This death principles clearly a distortion traditional is effect, Kallenberg proximate held causation. States, supra, n 19 In James v United notify him of a mass contended that the defendant’s failure revealed tissue opportunity x-ray deprived of earlier in an him tumor’s radiation treatment lowered the have reduced the size and would risk of The court said: metastasis. plaintiffs have have The Court therefore finds and concludes proving their burden of that James sustained i.e., treatment, early discovery and from disclo- benefited sure in 1976 would have tumor offered at a chance that least and, cured, successfully treated even if not its could be proximate growth negligence, As a result of arrested slowed. defendant’s deprived James was receive resulting early realizing any gain and the chance of treatment expectancy physical comfort. No in his life and mental may magni- its have been—and matter how small tude chance say one can that the be ascertained—no cannot decreasing suffering

prolonging valueless. life or one’s [Em- phasis added.] Falcon v by Opinion Levin, J. (rather of causation percent possibility that a 40 than probability required by a percent the 51 standard) liability for to establish was sufficient proof of standard of this loosened the Under death. liable for all causation, would be the defendant he for which resulting from the death damages responsible. most 40 was at that the persuades of these cases My review me us is problem the before preferable approach to Jeanes, O’Brien, (at implicitly) least that taken Emphasis [Id., pp 631-632. James. added.] opinion Finally, the resolu- "that best the states recognize the loss us is to of the issue before tion in- chance as an actionable than even of a less added.) (Emphasis jury.” Id., 634. Sipes, Ehlinger 1, 13-14; 454 155 Wis 2d In (1990), parents permitted main- to were NW2d 754 diagnose alleging that the failure action tain an multiple pregnancy factor in a substantial they causing injuries were suffered when twins prematurely. The court said: bоrn nature, where in a case of this conclude that We relationship the defendant’s causal between the plaintiff’s harm can alleged negligence and the surmising as to what only plaintiff’s inferred be have been had the condition would care, or satisfy his ordinary exercised defendant causation, plain- production on her burden of tiff need the omitted treatment was show that which prevent very type of harm intended to resulted, have submitted treatment, probable is more and that to than have lessened the treatment could plaintiff’s injury had it been rendered. avoided the It trier of fact to determine then is for negligence was a substan- defendant’s whether the [Empha- causing plaintiff’s harm. factor in tial original.] sis in Dep’t & of Health v United States Waffen 436 Mich Levin, (CA 1986), lung Services, Human 799 F2d malpractice claim, filed a medical cancer super- alleging communicate, failure to failure to care, The United vise medical and abandonment.39 Appeals Circuit, for the Fourth States Court of retaining requirement while prove more must the defendant’s conduct recognized likely injury, than not loss caused injury.40 as a distinct VIII injury contend, The defendants sought wrongful which Falcon to maintain this protect action, failure to Nena Falcon’s death 39 March, 1981, Virginia Waffen was admitted to the Clinical x-ray Center at the National Institutes of Health and a chest was radiologist’s report by taken. The five centimeter area of soft tissue concluded that there was a three patient’s lung density in follow-up radiologist’s report recommended a "misplaced” examination. was placed medical file. The doctors never Waffen’s signed discharge summary prepared and stated that who Waffen’s x-ray though they normal limits” even Waffen’s chest was "within x-ray report. had not seen the x-ray performed x-ray A second chest was on October 1981. This malignant "infiltrating carcinoma.” The lesion measured revealed approximately by five five centimeters. At this time it was discovered that an had been committed. "error” written, opinion The court said that the time the was hope cancеr was terminal and that she had no of clear long-term Waffen’s Dep’t Human survival. Waffen v United States of Health & Services, supra, pp 913-914. 40The court said: significant [supra], Hicks Corso What was about [Thomas v] Weimer, 84; (1972)], Md A2d 379 and Hetrick Md [265 App certain kind of harm survival”) [v 522; (1986)] 508 A2d 522 was their affirmation that a (the possibility of a of loss "substantial plaintiff may could be actionable. . . . now [T]he damages showing recover such causation of a new kind of [Waffen, possibility

harm: loss of a substantial of survival. Emphasis original.] 918. The court in Waffen went on to hold that the in that case possibility” failed to establish that she had a "substantial of had survival. Falcon v Memorial Opinion by Levin, J. opportunity avoiding physical harm, cannot be proofs maintained because the show that fifty percent, nity ing trial at will not probable, it is measured as more than they protected opportu- that, had her living, Recogniz- she would not have died. opportunity avoiding loss of a substantial physical unnecessary harm as actionable makes it to consider whether Falcon’s action for medical malpractice can be maintained as an action for wrongful may death. Falcon maintain a survival against action protect the defendants for their failure to living.

Nena Falcon’s resulting The harm from defendants’ asserted malpractice immediately occurred before Nena Falcon’s death when the medical accident occurred and, reason the failure to have inserted an line, intravenous die. it became certain that she would immediately At moment, her before death, Nena Falcon had a cause of action for the any opportunity living, harm, the denial of had been caused her.41Her claim therefor survived her death "[a]ll because actions and claims survive § death.” RJA 2921.42_ opportunity during Patients have maintained actions for loss of Aasheim, supra, preceding pp 462-463; their lifetimes. See text n 31 on

DeBurkarte, supra, accompanying supra; Ehlinger, supra, text p 467; n 30 text Waffen, preceding supra. n 39 on n 39 goes provide Section 2921 on to on claims for "[a]ctions injuries prosecuted which result in death shall not be after the death injured person except pursuant 2922, provides to” which for § wrongful death action: person injuries resulting Whenever the death of a or neglect, in death act, another, by wrongful shall be caused and the ensued, or fault of act, would, neglect, or fault is such as if death had not party injured have entitled the to maintain an action damages, person corporation and recover who or the which liable, ensued,

would have been if death had not shall be liable damages, notwithstanding an to person injured, action for the death of the although and the death was caused under felony. 600.2922; circumstances that constitute a MSA [MCL 27A.2922.] 436 Mich by Levin, percent that of a 37.5 persuaded are loss We a loss a sub- living constitutes of opportunity of harm.43 avoiding physical of opportunity stantial lesser percentage need now decide what We opportunity. of constitute a substantial loss 420, Laboratories, PC, Regional 415 Mich See Hawkins v Medical (1982). 436; Group Health NW2d See also Herskovits where, Sound, concurring supra, Cooperative Puget of a comprised signed judges majority, opinion of the six who four personal action for loss of this it was said that decedent’s "[t]he of in his chances will fourteen reduction survival] [a personal representatives provided by Rev to his as survive [Wash provides that causes of Code 4.20.046.” The cited statute Ann] "[a]U person persons personal . . to a or . shall survive action representatives persons], on such actions arise of whether [those otherwise, or and whether or not such actions would have contract prior of of at the law or to the date enactment this survived common . . . .” section interval the loss of While Nena Falcon’s case time between harm, resulting physical opportunity better result and the an for a death, short, relatively was cases the time interval her other opportunity for result between the loss or reduction a better longer, physical considerably as and the harm will be occurrence resulting diagnose misdiagnosis. thеre is a or a The where failure harm, pain resulting might physical spread from of a disease avoided, resulting might pain have been from medical treatment avoided, resulting anxiety pain suffering from have been might avoided, prolonged may period been extend a of time over death, remission, patient A suffers as until or a cure. who such harm misdiagnosis diagnose or has actionable a result of failure to damages regard n 41. for death ensues. See claim without whether opportunity accrual of action loss of an The of a cause not, thus, achieving depend on death better result does whether ensues as a result. The cause damages action accrues when harm and opportunity result the loss of a substantial for a better from establishing through expert The the burden result. has testimony the treat- difference between the course of the disease and diagnosis, ment had there a correct and the course of the disease been diagnose misdiagnosis. failure and treatment as a result of ensues, patient, or, personal representative, his need if death percent, probable, fifty that it more than not show measured as differ- that the course of the disease and treatment would have been not, show, probably ent. It is sufficient to more that had there diagnosis, a correct would have had a substantial been avoiding the course of the disease treatment occurred. Falcon v Memorial Levin, J. IX case, In the instant Falcon’s cause of while Nena death,44 she did not action accrued before her the failure pain suffering suffer conscious and from implement procedures the omitted between moment the medical accident occurred and time of her death a few minutes later—she time In throughout period. was sedated the entire case, damages 37.5 times the recover- this wrongful appropriate death be an able damages. measure of Supreme Court of Iowa differentiated loss cases that allow a to recover

opportunity underlying injury for the from those45 that limit damages patient’s to the lost of sur- opportunity cases, vival. Criticizing group former court said: reasoning, Under this could recover all

damages resulting injury from an for which a may only partly responsible. defendant be It effec- tively jury speculate allows on causation expert testimony physician’s negli- because that a gence damages probably caused the total is not required. position clearly This is an extreme principles distorts the traditional of causation. Louvar, supra, p Emphasis 137. [DeBurkarte original.] The court concluded that recovery should be al- "only Id. lowed for the lost chance of survival.” (Emphasis original.) Mays States, v United

In F Supp (D Colo, 1985), the court malprac found that patient’s tice reduced the opportunity survival 44When, by implement procedures, reason of the failure to became certain she would die. O’Brien, James, supra, supra, 45The court cited n 19 n 19 Mays, supra. n 19 436 Mich Opinion by Boyle, percent. computing forty dam fifteen

from multiplied ages, lost, the court per percent twenty-five percent (forty less fifteen cent), by pecuniary loss to determine the net damages by the defendant.46 The caused only damages permitted thus was recover patient’s opportunity in the of surv the reduction ival.47 Appeals reversal the Court of

We would affirm entry summary judgment for defen- of dants, for trial.

and remand case Levin, J. J., concurred with Archer, (concurring). recogni- I concur Boyle, J. injury for tion of to survive” as "lost recovery proportion tort should allow which to the extent of 466, law ante, survival, the lost chance provided negligence that the of the defendant explained: court The Therefore, per damage The chance lost 25. cent of was pecuniary loss defendant is .25 related net caused X 173,200 States, $43,300. [Mays supra, p v United 1483.] Wolfstone, 144, explain computation supra, p n 20 Wolfstone & as follows: probabilities proper [TJestimony to what the were of the decedent as surviving probative evaluate the value deprived, saying of result the particular had she received treatment has value, jury and is essential in ordеr for the of the chance of which the was decedent jury position would then have to be since a deprived x the decedent was of an y dollars, surviving, that her life was worth and that as y of the chance x times dollars. value damages proper computation damages limit The recoverable to actually ory, approach that amount of reduced chance of physician’s negligent the caused conduct. The nothing” adopted, where should not result in an "all or Hart, Wagner Making long to causation. & shot [19 longer, 1990).] (Spring, Brief Falcon v Memorial Dissenting Opinion by Riley, C.J. probably opportu- more than not caused the loss nity. emphasize However, I would the Court today upon viability is called to decide the of a opportunity” only claim for "lost where the ulti- any mate Thus, harm to the victim is death. language opinion suggesting in the lead that a might opportu- similar cause of action lie for lost nity avoiding physical lesser harm is dicta. policy justify Whether the social and factors which compensation for a lost chance of survival would justify recovery for the loss of a chance to avoid question day. some lesser harm is a for another J., Cavanagh, Boyle, concurred with (dissenting). Riley, C.J. I would hold that a wrongful may death action1 not survive a motion summary disposition where is uncontested it plaintiff that negligence cannot show that defendant’s death,

caused the decedent’s and will produce evidence that the decedent would have had an increased chance of survival negligently defendant, case, as in this had not failed to insert an intravenous line before or im- mediately administering after saddle anaes- block thesia.2 Where cannot show ‍​​​‌​​‌‌‌‌‌‌​‌​‌‌​‌​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​‌​​‍that defen- probably dants’ omission was a cause of the death degree Falcon, of Nena of certitude which justify imposition liability would on defen- lacking. recognition dants is The of mere fundamentally as a recoverable item of loss dicts the essential notion of causation. contra-

By defini- theory compensate tion, the lost chance 600.2922; 1MCL MSA 27A.2922. procedural рosture requires presume of this case us to applicable defendants breached the standard of care. Counsel for Hospital argument defendant Memorial conceded at oral there jury was evidence from which a could find that was breach of the standard of care not use to an intravenous line. Mich Dissenting Opinion Riley, C.J. possibility mere defendants’ for a the death of Nena Falcon. caused omission

i wrongful grounded in action This is a death malpractice. allegations medical The action on Nena J. Falcon from the death of arises years Falcon, Ms. then nineteen March old, 1973. healthy child delivered of a at defendant was Hospital, care under the of defendant request decedent, Kelso, Jr. At Dr. S. N. block Dr. Kelso a saddle anaesthetic administered delivery. prior line inserted No intravenous was spinal the administration of the before after Immediately delivery after anaesthetic. placenta at 6:39 and before child a.m., coughed delivered, into a Falcon Nena went attempted Denny Nurse convulsive state. Norma reading pressure there was obtain a but to none, blood indicating At cardiac this time arrest. respirations. According to Dr. no decedent had Kelso, died minutes. within few At her were unsuccessful. Efforts tempts resuscitate unsuc line were to start an intravenous also A a central vein was cessful. attempted, "cut down” into into the fluids could not be run but circulatory system was no because there decedent’s autopsy at this time. The revealed circulation embo an amniotic fluid the decedent had suffered lism, compli unpredictable threatening life way pregnancy. There is no known cation of prevent there are fluid embolism. While amniotic predisposing factors, in it can occur certain healthy apparently person normal.3 who is smoker, obese, there was While was evidence delivery, pneumonia suffering at the time of the from mild case put factors her at increased there is no record evidence these for amniotic fluid embolism. risk Falcon v Dissenting Oрinion Riley, C.J. primary or is a rent in the amnion4 cause The pressure together sufficient to force chorion,5 with circulatory system. into the fluid the amniotic allege negli- that defendant’s does not Plaintiff gence Rather, embolism. caused suffering rate for women that the survival claims percent, complication 37.5 but that due to is this negligence, deprived Nena Falcon was defendant’s of that chance. primarily on the testi-

Plaintiff’s claim is based mony Dr. testi- of Dr. Ezzat Abouleish. Abouleish spinal deposition that anaesthesia fied at given an intravenous line not be without should spinal to a anaesthesia can lead decrease because depression. pressure respiratory in cording or Ac- blood Abouleish, line, to Dr. an intravenous had provided place, it only Ms. Falcon’s been Dr. chance of survival. Abouleish could not say that the failure to use an intravenous line was testified, Ms. death. He cause of Falcon’s how- surviving ever, that her chances of the embolism would have been better she had an intravenous place going line and fluids into her bloodstream. place, If an intravenous line had been in Ms. given drugs Falcon could have been to stimulate her heart or dilate her bronchi.

Dr. Abouleish testified that the overall survival suffering rate for women amniotic fluid embolism percent. is 37.5 This number calculated in the following patients experi- manner: Of one hundred encing complication, fifty this will die within one fifty fifty survivors, hour and twenty-five will survive. Of the develop coagulation prob-

will a blood embryonic The amnion is "the innermost fetal embryo suspended.” . . . membranes the sac which the is The College Dictionary, Random House rev ed. extraembryonic chorion "the outermost College Dictionary, . . . .” The Random House rev ed. membranes 436 Mich Dissenting Riley, C.J. developing of those to half will be fatal lem which problem. rate for Thus, survival the statistical percent. Dr. 37.5 fluid embolism amniotic to have even testified that for Abouleish that essential. line is survival, intravenous chance of testimony deposition relies on the Plaintiff also gener- Dr. DeKornfeld Dr. DeKornfeld. of ally Thomas accounting agreed Dr. Abouleish’s with suffering amniotic for women survival statistics fluid place although not embolism, he would percent. precisely Dr. De- at 37.5 rate survival Kornfeld intravenous line should testified that an immediately after the administration started be complication any spinal anaesthetic, so that a arising spinal could be man- from the anaesthetic intravenously. aged by injecting While medication inappro- opined clearly it that was Dr. DeKornfeld priate line not. to insert an intravenous presence decedent, he was "not certain” any made differ- intravenous line would have of an ence. When questioned further, DeKornfeld stated likely very have intravenous infusion any case, in this he difference but made little may been "[t]here conceded opinion reiterated that . . . .” DeKornfeld pres- He did not believe cross-examination: would have materi- ence of intravenous infusion say ally outcome, but he could not affected the might line that an intravenous was inconceivable have changed the ultimate outcome. January 7, 1985.

A trial was held on a directed verdict favor The trial ended with ruled that after the trial court defendants regard- present expert testimony any had failed to ing applicable of care for the doctor standard nurse-anesthesiologist. ruling based That that Drs. the trial court’s determination on Falcon v Dissenting Opinion by Riley, C.J. qualified Abouleish and DeKornfeld were testify to the relevant standards of care. The Court Appeals granting reversed the order the di- holding verdict, rected that both Drs. Abouleish qualified testify regarding and DeKornfeld were Michigan, Monroe, the standard of care in or in similar communities. summary remand,

On defendants moved for 2.116(C)(10).6 disposition pursuant to MCR Defen- argued plaintiff that, dants since conceded that the only per- decedent’s chance of survival was 37.5 possible cent, under the best circumstances and any negligence, plaintiff the absence of could not any negligence by establish that the defendants proximate was the The trial court cause of Nena Falcon’s death.

granted summary disposition stating defеndants, favor of that could prove only wrongful "that the acts or omissions of the defendants caused her to lose a chance at life (37.5 percent), prove but could not that the defen- dants’ acts or omissions caused her death.” Appeals

The Court of reversed. Falcon Memo- v (1989). Hosp, App rial 17; 178 Mich 443 NW2d 431 ii Appeals The decision of the Court of require plaintiff alleging malpractice a medical only negligently show that a omitted treatment or 6Summary disposition 2.116(0(10) appropriate under MCR when "[ejxcept damages, genuine as to the amount of there is no issue as to fact, any partial ruling moving party judgment material and the is entitled to or judgment purposes reviewing as a matter of law.” For subrule, accept deposition under testimony this we as true the of Drs. Abouleish and that DeKornfeld the failure to insert an immediately intravenous catheter before or after the administration of saddle block anaesthesia was a breach of the standard of care applicable to defendants at the time of the incident. We also take as allegations true the the decedent would have had a 37.5 inserted, chance of survival an intravenous line had been but because this was not done her survival was eliminated. 436 Mich Dissenting Riley, C.J. improving potential

procedure "had the patient’s preventing patient’s recovery Appeals App 26. The Court Mich death.” proba- plaintiff must some "while show held that bility successful, that that the treatment would be greater fifty percent.” probability need not be Appeals analysis pp Id., 26-27. of the Court The meaning "probability” turned on the word by this Court. in two cases decided Rogers Kee, 551; 171 Mich 137 NW 260 (1912), plaintiff’s proofs the defen- showed that diagnose physician fractured neck dant failed Rogers femur. Court noted and The diagnose had failed to defendant plaintiff’s fractures, had three succes- but issued diagnoses did sive not p of conditions Id.,

have, and him for conditions. treated these suffering pain 558. Court stated wrong damage, from treatment are elements given further that some of the advice noted аctually injurious to the could plaintiff’s have been Id. of its conclu-

condition. On basis jury that a a better result sion probable could found negligence, but for the Court defendant’s properly to a case was submitted held jury:

[A] suffering injury, on from such an meth- calling physician, approved a is entitled to experience of the ods of treatment profession from which probable beneficial results are indicates and, anticipated; to if an entire recov- and ery, chance. be not if to a better ultimate condition than left so, legitimately If inferred can it be who, plaintiff, strong man, untreated jury chance, recovery with his left "shows as and pa- in a good ordinarily results obtain as would treatment,” age prop- if tient of his under skillful would, probability, erly skillfully treated in all Falcon v Memorial Dissenting Riley, C.J. have a better and be in yet better condi- tion? We think such testimony presents an issue of jury—on fact for the issues of probability, it is true. The death, healing, sickness and life and are forecast, too uncertain to be otherwise negli- but gence deprives which a man probability of such injuria [Id., more than sine pp damno. 561-562.] Although the Rogers Court cited a definition injury as "[a]ny want of the proper degree of skill or care which diminishes patient’s chances of the recovery, prolongs his illness, or, suffering, short, increases his makes his condition worse than it would have been due used,” skill and care had been it based its conclu- sion on an assessment of testimony tending to treatment, show that proper with "a union bony possible better fibrous union added). probable Id., . . . .” p 562 (emphasis This Court again considered the problem of cau- sation a medical malpractice case in Harvey v Süber, (1942). 510; Mich NW2d In Har- vey, negligence of the defendant doctors re- sulted diagnosis inaccurate of the course of the bullet Id., that struck the p decedent. 520. The Court inferred from the record that the doctor who initially treated the thought decedent he felt bullet under the skin right on the side of the decedent’s abdomen. The x-rays revealed a bullet side, on the left but the chief of depart- the x-ray ment reversed the markings of left and right upon discovering treating disagreed doctor with diagnosis his finding a Id., bullet on the left side. 513. The decedent died eighteen after hours. The autopsy revealed blood in the abdomen sufficient to cause death. It also revealed that the bullet which had right entered at the back had traveled left, right forward from lodging in the upper Id., left side of the abdominal 515. cavity. The Mich Dissenting Riley, C.J. causing the intestines through had traveled bullet Id. There testimony was perforations. numerous hemorrhaging could surgery only by that sufficient Harvey found The Court stopped. been cause, finding proximate of support evidence sufficient: finding proof "probability” of there was testimony in the record that There is saved operation would have probability that a Harvey’s diagnosis negligent life. Therefore of proximate cause to have been could be said [Id., p the death. 520.] both considered carefully Appeals of Court that the test concluded

Rogers Harvey, and was not an in those cases employed "probability” than more likely an event inquiry whether noted that Appeals Id. The Court happen. not to the rela- . . . also refers to 'probability’ "the word that whether happening, of an event tive chances 26. App 178 Mich high.” be low 'probability’ concluded, must Thus, "while the Court would the treatment probability show some greater need not be successful, probability be Id., 26-27. pp fifty percent.” the rule misconstrued Appeals That the Court clear Rogers perfectly is made Harvey of an instruction Harvey approval Court’s aby preponderance to find jury required which "with reason- surgery would the evidence the decedent’s life: have saved probability” able a verdict for the may not return "[Y]ou surgical intervention only that if he has shown life of Garfield might possibly have saved hand, not incum- but, on the other Harvey, certainty to a plaintiff to show on the bent life. It have saved his surgical intervention preponderance plaintiff by a if the is sufficient Falcon v Memorial Dissenting Opinion by Riley, C.J. you surgical satisfied that the evidence has inter- probability vention would with reasonable saved added.] . Emphasis his life . . Mich 521. [300 "Probability” means neither certainty thus nor mere The Court of possibility. Appeals conclusion procedure that an omitted need have the only potential preventing for death necessarily re- degree duces the of certitude which is inherent in the notion of from "probability” causation mere possibility.7 The "lost chance of survival” theory urged by plaintiff thus represents not a re- causation, definition of proof the threshold of for but a meaning fundamental redefinition of the of causation tort law. To determine the wisdom of course, we look to law of jurisdic- other tions.

hi The seminal case development the lost States, chance of survival is Hicks v theory United (CA 1966). F2d Hicks itself is not a lost case, chance survival as there was testimony if the had negligently defendant failed to diagnose the obstruction, decedent’s intestinal she dicta, would have survived. the court wrote: When a negligent defendant’s action or inaction person’s has effectively terminated a survival, it lie in does not the defendant’s mouth conjectures to raise chances that as to the measure of the put beyond possibility he has (CA States, 6, 1988), In Bell v United 854 F2d 881 the United Appeals rejected "bright States Court Sixth Circuit line” requirement plaintiff prove negligent the defendant’s failure diagnose aneurysm deprived fifty-one percent to survival; him aof chance of correctly Michigan requiring the court stated the rule as proof probability” that the deceased had a "reasonable but Id., negligence. for the defendant’s 883. 436 Mich 443 Dissenting Riley, C.J. possibility any If substantial there was realization. it, destroyed he defendant has and the

of survival is answerable. possible to Rarely demonstrate hap what would have certainty to an absolute wrongdoer did not that the pened in circumstances pass. The does not to come to law allow require existing circumstances certainty would have show to operated on hospitalized and lived had she been promptly.[8] [Id., p 632.] in Hicks to "lost sea- analogized The the court Inc, Carriers, Nat’l Bulk man” case of Gardner v (CA 4, 1962), cert den 372 US 310 F2d 284 (1963), recоgnized a on the duty the court where ship’s of master to use reasonable part every a a means save the life of man overboard. to no the defendant’s contention that rejected court shown, proximate was finding cause proximate duty: in the breach of the implicit cause duty empty if it did not itself would be [T]he consequence of its embrace the loss as a breach. possibil- the the sustains reasonable Once ity evidence rescue, narrow, according to ample the circumstances, disregard duty, total refusal here, imposes try, to make even a liability. as was the case p [Id., 287.] Bashline,

In Hamil v 256; 392 A2d Pa (1978), Supreme relied on Pennsylvania the Court Michigan 8Interestingly the in the case of Har court Hicks cited require proof supra, vey, to a for its statement that the law does certainty the decedent would have been avoided death footnote, negligence. the Hicks court not for the defendant’s correctly interpreted holding Harvey in to be there that because surgery probability was would have was evidence there life, negligent diagnosis proximate saved cause of the decedent’s death. decedent’s 632, Hicks, supra, p n 2. Falcon v Opinion by Dissenting Riley, C.J. 323(a) Torts, 2d,9to similar § of the Restatement malpractice Hamil case. The in a medical effect court concluded a defendant there is evidence that that where harm, "such the risk increased go for the fact-finder furnishes a basis evidence further and turn a substantial in risk was find that such increased bringing in factor about Id., . . .” 272. Thus the court harm . resultant accomplished extraordinary transformation allowing by jury to find traditional causation in fact where the most that could be causation shown is

that the increased the risk of defendant criticizing noted courts harm. As has been duty simply decision, § 323 establishes a Hamil person undertakes to render services to where increasing another to avoid recipient. Curry the risk of harm to the App Summer, 468, 136 Ill 3d (1985). liability 476; 483 In order for NE2d duty result from a violation of the described physical 323, § "result[ ] [the] harm must from perform [the] failure undertaking exercise reаsonable care to require Thus, . . .” . the causation § is not as the court ment obviated effectively need Hamil held. The court Hamil concepts drastically altered traditional not have so causation, since there was evidence seventy-five percent decedent would have had a negli likelihood of survival absent defendant’s gence. employed inquiry

Several courts have similar Pennsylvania Supreme to that of the Court 9 undertakes, consideration, gratuitously or for to One who recognize he should as neces render services to another which person things, subject sary protection for the of the other’s physical resulting liability his to the other for harm from undertaking, perform to exercise reasonable care to his failure if (a) the risk of such his failure to exercise such care increases 323, Torts, 2d, p .... § 135.] harm Restatement [2

484 436 Mich 443 Dissenting Opinion Riley, C.J. 316, CAMC, 305 325 Hamil. In Thornton v SE2d (W 1983), Va, court held that a defendant would be where the could show that liable the defendant’s acts or omissions increased risk of harm that such increased risk "was a bringing about the ultimate substantial injury factor plaintiff . . . to the See also Aasheim v Humberger, 127, 146-147; 215 Mont 695 P2d 824 (1985); Sharp v Kaiser Foundation Health Plan of (Colo 1985), App, Colorado, 710 P2d 1987).10 (Colo, aff’d P2d openly recognized While the in Hamil court degree the effect of the rule is "to relax plaintiff’s normally required certitude evidence jury in order to for the make a case as to whether plaintiff’s may a defendant injuries,” be held liable for the p id., 269, others have avoided overt meaning alteration of the of causation redefin- ing compensable injury not as the ultimate avoiding harm, but as the lost chance of harm. Group Cooperative v Herskovits Health

Puget (1983), Sound, 609; 2d 664 P2d 474 Wash Washington Supreme Court faced a situation plaintiff, suffering lung cancer, where from fifty percent had all less chance of survival at negligence times, but the defendants’ reduced by thirty-six the decedent’s chance of survival (from percent). thirty-nine twenty-five concurring opinion, Judge In a Pearson noted that malpractice cases, in medical cause in fact "must beyоnd probabilities.” be established the balance of plaintiff’s expert Id., Furthermore, 622. negligence unable state the defendants’ adopted It is notable that a number of cases which have 323§ analysis damages increased risk those which the also limited recoverable to duty imposed prevent. Thompson was intended to 597, 608; City Community Hosp, (1984); Sun McKellips 141 Ariz 688 P2d 605 1987). (Okla, Hosp, v St Francis 741 P2d 467 Falcon v Memorial Dissenting Opinion by Riley, C. probably likely or more than not caused the death injury However, of the decedent. if the were survival, viewed as a reduction in the chance of plaintiff’s reached; different result could be expert diagnose had testified that the failure to probably caused a in substantial reduction decedent’s chance of survival. Dep’t

In Waffen v United States of Health & (CA 1986), Services, 911, Human 799 F2d the loss as a substantial chance of survival was recognized cognizable Maryland as a harm under law. The court thus avoided overt alteration of the holding "plaintiff causation, rules of must proof injury complained submit of was likely’ probably’ 'more or 'more due to defendant’s any action rather than to other cause.” Id. theory fully explained

The lost chance is most in King, personal Causation, valuation, and chance in injury involving preexisting torts conditions and (1981). consequences, future 90 Yale L J 1353 ‍​​​‌​​‌‌‌‌‌‌​‌​‌‌​‌​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​‌​​‍theory premised reasoning on the that chance injury redress, itself is an entitled to and that by chance should be measured a mathematical percentage probability test: part

Causation has for the most been treated as all-or-nothing proposition. Either a loss was by caused Inexplica- the defendant or it was not. bly, all-or-nothing approach of the causation inquiry slip analytical has been allowed to its moorings, influencing the identification and valua- involving preexisting tion of losses cases condi- consequences. plain- tions and claims for future A required prove tiff ordinarily should be applicable proof standard of the defendant loss, question. caused the however, loss What caused a separate question

should be a from what the nature and extent of the loss are. This distinc- tion seems to have eluded the

courts, with the 436 Mich 443 Dissenting Opinion Riley, C.J. respects are many lost chances result or not at all. compensated either as certainties illustrate, a doctor consider the case which To patient’s diagnose to a cancerous negligently fails inoperable. Assume it has become condition until diagnosis timely a the that even with further of had a chance patient would have 30% surviving over the recovering from the disease and handling a this loss of a long ways two of such term. There are approach, Under the traditional case. not-better-than-even recovering of from the chance compensable it did would not be because cancer patient not that the appear likely not more [than] proper Recoverable have survived with care. on the extent would depend to damages, any, cancer killed the appeared which diagnosis timely than it would have with sooner and delay treatment, and on extent which aggravated patient’s diagnosis condi- tion, causing pain. A more by such as additional however, approach, rational would allow though of cure even for the loss of probability was not even. The chance of better than in the long-term survival would be reflected damages amount of awarded for the loss of prove by While the here could not chance. preponderance a of the evidence that he was de- negligence, could by a the defendant’s he nied show cure deprived of by preponderance that he was [Id., Empha- pp chance of a cure. 1363-1364. a 30% original.] sis adopting A the lost chance of number cases King’s Professor statisti- theory adopt survival also had, if a decedent approach, holding cal for survival, then percent chance of example, thirty for compensation thirty should be awarded Boody See v of the value of the decedent’s life. (D States, 1458, Kan, United F 1465 Supp 706 467, Hosp, Francis McKellips v St 1989); 741 P2d 1987). (Okla, adopting some ver- jurisdictions The number Falcon v Dissenting Riley, C.J. theory fairly is chance of survival the lost sion of states which the number of matched evenly negligence that a defendant’s require continue a defen- result before the adverse caused probably dam- plaintiff’s required pay dant to the burden these courts refer ages.11 Many prove must for causation: proof likely more negligence defendant’s Cooper v See, e.g., injury. plaintiff’s caused Charity Cincinnati, Sisters of St 2d Ohio Hetrick, Weimer (1971); 250-252; 272 NE2d (1987).12 A number of 536; 525 A2d 309 Md the matter as an issue courts, treating even while ques- recognized that proof, of burden meaning of causation. to the heart goes tion Court wrote Thus, Hampshire Supreme the New not probability, is a matter "[c]ausation Hosp, Pillsbury-Flood v Portsmouth possibility.” (1986). The Florida 299, 305; 512 A2d 1126 128 NH Hosp Bldg, Gooding Inc, Univ v Supreme Court 1984), 1015, (Fla, cogently stated 1018 445 So 2d 11 retaining likely standard for causation the more than not Cases (CA Lund, malpractice 783 F2d 958 cases include Alfonso v in medical 1986) 10, law); Coffey, (applying 122 Mexico Connellan v Conn New 199; Baker, App 136; (1936); v 11 Conn 526 A2d 187 A 901 LaBieniec (Fla, Inc, 1015, (1987); Bldg, Gooding Hosp 1018 445 So 2d 1341 1984); v Univ Jones, 1978); (Ky, Anthony v 439 SW2d 571 Walden v (La 1, 1985); Tongen, App, Dist 477 So 2d 1180 Cornfeldt v Service No (Miss, (Minn, 1980); Campbell, 515 So 2d 882 295 NW2d 638 Ladner v 299; Hosp, 1987); Pillsbury-Flood 1126 128 NH 512 A2d v Portsmouth Cincinnati, 242; Charity (1986); Cooper 27 Ohio St 2d v Sisters of (1971). jurisdictions in conflict There are several which 272 NE2d 97 ing exist, 10, 7, p 42. 54 ALR4th § decisions see 485-486, noted, ante, Appeals pp the United States Court of As interpreted Maryland to allow for law for the Fourth Circuit Waffen, Maryland supra. The Court of of a chance of survival. the loss proof approved Appeals standard of for in Weimer the traditional causation, solely by Maryland’s reference to the case but resolved statute, against person wrongful an action death which allowed Id., p wrongful 554. In of another . . . .” act caused death "whose (1987), Hartman, 259, 261; Cooper 311 Md 533 A2d expressly Maryland Supreme declined to decide whether Court adopt doctrine. the "lost chance” 436 Mich 443 Dissenting Opinion Riley, C.J. declining causation

its reasons to relax the in medical cases: requirement malpractice Relaxing requirement might the causation cor- perceived plaintiffs rect a could unfairness to some possibility who prove the medical mal- practice prove could injury caused an but causation, probability of but at the same time injustice. providers could create an could find themselves Health care defending simply cases be- improve cause a disease course of action could fails to or where serious processes are not arrested because another bring possibly re- better professional malpractice sult. No other carries this burden of ment that defendant liability require- without the plaintiffs prove alleged negligence probably We cannot obvious possibly injury. rather than caused the approve substitution such an [Id., perceived inequity pp for a one. 1019- 1020. Citation omitted.]

IV The lost chance of theory survival does more lower the threshold merely proof causa- tion; it alters the fundamentally meaning causa- tion.

The most premise upon fundamental which lia- negligent for a act bility may be based is cause in fact. Glinski v 182, 196-197; Szylling, 358 Mich (1959). "An NW2d act or omission is not regarded as a particular cause of event event would have occurred it.” without Prosser & (5th Keeton, ed), Torts 265. If the defen- § dant’s acts did not actually plaintiff’s cause then there is no injury, justification rational for requiring the defendant to bear the cost of the Thus, plaintiff’s damages. it the plaintiff’s is bur- den to a causal negli- show connection between Glinski, supra, p 201. "A case gence injury. go jury supported cannot to a sheer merely by speculation something might have been a Falcon v Memorial Dissenting Opinion Riley, C.J. step going or, further, cause, that there was a one something pp possibility Id., was the cause.” 201-202. cognizable recognition as a The lost chance reasoning necessarily injury based on the negligence, plaintiff but for the defendant’s might possibly an adverse result. have avoided recognition Thus, lost chance as recoverable very interest contradicts the notion of cause King aptly a lost fact. Professor characterizes destroyed by chance as a "raffle ticket” the defen- negligence.13King, supra, p King 1378. dant’s cates advo-

compensation "statistically for demonstrable p person deprived losses,” id., 1377, so that a of a compen- forty chance of survival should be forty percent compensable sated for his from a value of p Id., Thus, life. 1382. tort law is transformed payout compensatory system to a scheme on the basis of a statistical chance that the defen- plaintiff’s It is no dant caused that full tainty compensation. death. answer compensation a cer- based on less than that a would have survived is over- King proba-

Professor criticizes the bility because, Anew, standard of causation his certainty, treats the better-than-even chance as a though "as it had materialized or were certain p Clearly, Id., do so.” proven 1387. causation can never be certainty; to a law settles less determining that a defendant should be held liable expressed compensate This Court its reluctance for mere Corp, chance when it in Larson 427 Mich held v Johns-Manville Sales 301, 305; (1986), 399 NW2d 1 that a contracts asbestosis who bring bringing but does not suit is not barred from later suit when he developed knows or should know he has cancer as a result of the reasoned: asbestosis. Court encouraging develops every Rather than who asbes- money compensation for the

tosis to recover an amount as cancer, prefer actually getting we to allow those who chance do [Id., develop recovery. full cancer to obtain a 319.] 436 Mich by Dissenting Opinion Riley, C.J. Thus, Professor McCor- plaintiff.14 to a damages for of the evidence preponderance mick the describes "probability”: in terms of proof standard of meaning given to to the acceptable be The most to expression, proof by proof preponderance, seems be the exis- jury the to find that which leads probable fact is more tence of the contested its nonexistence. preponderance Thus the of evi- preponder- the trier’s belief the dence becomes (3d ed), [McCormick, Evidence probability. ance of 339, p § 957.] at that some courts are "shocked

McCormick notes verdict, truth-finding, suggestion the stronger than an esti- nothing should be based on Id., 958. mate This statement probabilities.” of system. the foundation of the tort very reveals be, legal attempts it our Imperfect may system as protect the truth. To to ascertain facts to arrive at some goal, of that there must be integrity causation before a degree regarding of certainty fact that a medical defen- determine as jury may and should plaintiff’s injury did cause the dant To damages. compensate therefore dispense requirement with this is to abandon King Professor truth-seeking function of law. attempt compensate in his for willing to do so Profes- lost chance. precise magnitude any than not King’s likely sor criticism of the more causation, theory like the lost chance standard for itself, it is premise the erroneous is based on compensate for lost purpose of tort law operate chances. But tort law should proof ultimately are con 14McCormick notes that standards jury’s mind than the evidence cerned with the state of the itself. rather (3d Thus, McCormick, ed), 339, p preponder 956. Evidence § weight properly not to the evidence standard refers ance evidence, might inspire degree certainty in the to the which but jurors. minds of Id. Falcon v Memorial Dissenting Opinion Riley, C.J. govern lotteries and insur- principles same did not If the acts of the defendants policies. ance then there is no plaintiff’s injury, cause actually requiring defendants justification rational plaintiff’s damages. bear cost fact, in weigh- Even where there is causation a requires social interests a limit on how far ing of consequences negligence of will extend. matter, practical legal responsibility must As closely be limited to those causes which are so significance connected with the result and of such that the law is justified imposing liability. in Some boundary liability must be set to for the conse- act, quences idea of 5th any upon the basis some social Keeton, Torts, justice policy. & [Prosser ed, 41, p § 264.] Thus, adjusting requirement, the causation "[b]y the court is able to strike a balance between deterring encouraging harmful bеhavior and use- Co, Eli activity.” Abel & 311, ful Lilly 418 Mich 324, 8; (1984), n 343 NW2d 164 den 469 US cert (1984). imposed propor- If is to be in liability survival, tion to chance at then the any medical profession subjected will be to a burden which is imposed on any group other of defendants. Cooper, supra. I submit is to nothing be gained by extracting payment from a defendant who cannot be shown to have caused the adverse result. Such a rule will not serve the deterrence function of tort It likely encourage law. more will practice costly defensive medicine an attempt practically liability avoid certain event of an unfavorable outcome. utility physician’s conduct militates

against requirement a relaxation of the causation malpractice in medical "The physician cases. society, serves vital function our a function Mich 443 by Dissenting Opinion Riley, J.C. duty assumption requires to the of a which profession patient. him Yet, affords his experimental science which and often inexact to (Brachtenbach, supra, p discharge duty.” Herskovits, his dissenting). Malone, J., See also cause-in-fact, 60,R 86-87 9 Stan L Ruminations on (1956). the case in which two not similar to This is deter- it cannot be are held liable because shooters mined whose bullet caused death, the victim’s (1948). Tice, 80; 199 P2d 1 33 Cal 2d Summers v utility circumstances, of the ac- the it is not Under those troubling to tors’ conduct is so low permit theory against on the both action, causation can be even where concert attributed preponderance

to neither Torts, 41, Keeton, § & evidence.15 See Prosser 271. In Abel v supra, p Lilly, Eli this Court the rationale for its Summers v Tice and discussed rule, Torts, in 2 Restatement which is embodied 433B(3), pf, 2d, § 446: comment exception the to traditional reason for [T]he allowing proved prevent injustice rules is to n wrongdoers injury in- escape liability for an plaintiff "merely because upon flicted the nature has made an innocent resulting and the harm their conduct prove impossible it which difficult or of them has caused the harm.” on this rationale to The Court in Abel relied "DES-unique”theory of alternative liabil- fashion a ity, all of the defen- where it could be shown that plaintiff tortiously, acted and that dants harmed by the conduct of one of the defendants. compared in this case with a situation which Nor can be overboard, captain ship failure to rescue a man of a is held liable for only had rescue been a chance of survival could be shown where by ship’s imaginable utility attempted. captain is little a decision There Carriers, attempt. Bulk Gardner v Nat’l to decline a rescue supra. Falcon v Dissenting Opinion Riley, C.J. Assuming Id., 331. we as must that defendants Hospital tortiously, Kelso and Memorial acted there remains a crucial distinction between Abel Abel, and this case. In it was known that one plaintiff’s injury. the defendants caused each question case, this is not who caused Nena question, death; Falcon’s answer, which we have no any is whether human act or omission caused her I do death. not mean to minimize the tragedy question events, of such but assumption may that a human cause be located. deposition testimony case,

In this there is from which it could be inferred that the decedent was deprived 37.5 of a chance of survival the failure of Dr. Kelso to insert an intravenous immediately line before or after the administra- tion of a saddle block anaesthetic. Plaintiff does showing greater any not assert that evidence like- produced lihood of survival will trial; be at it is plaintiff’s theory that the lost survival compensated. plaintiff should itself be Where the possibility can show no more than a defendants’ harm, conduct was a cause of I produced would conclude that the has not adequate regard- evidence to create a factual issue ing Rogers, supra. Harvey, causation. Inherent concept degree of causation is a of certitude absolutely lacking which is in this case. Our case wisely requires may law evidence from which be probably inferred that the defendant caused the jury may ultimate harm before the be allowed to infer that the defendant did cause such harm and compensate damages. should concept Also inherent in the of causation is the scope foreseeability. liability notion of The of 436 Mich Dissenting Opinion Riley, C.J. beyond, ordinarily to, the but extend should scope is, the risks the risks”—that of "foreseeable by negligent. held actor’s is reason of which the conduct Keeton, §42, 273. In this &

Prosser absolutely the case, purpose no evidence there line have been of an intravenous Similarly, prevent fluid embolism. an amniotic pur- total of evidence that there is a absence manage pose or treat of an line was intravenous complication unpredictable Instead, this labor. points plaintiff’s evidence to the conclusion all inserting line reason that would have been to for intravenous

manage compli- potential Under saddle block anaesthetic. cations assuming compen- circumstances, even these granted has should be where defendant sation caused the loss of a mere

chance, lacks showing may on be evidence which a causation predicated. words, even other cannot prove of a 37.5 that defendant caused the loss percent chance of survival.

CONCLUSION adoption disagree I with chance of the lost theory. damages survival principles a mere loss of chance eviscerates the By identifying underlie our tort law. wrongful underlying ultimate harm as the loss ion abandons the death action opin- survival, of a chance at the lead negligence most fundamental By definition, the recov- element of cause in fact. ery today possibil- on sanctioned is based the mere ity caused the acts of defendants Nena I believe it is unwise death of impose Falcon. liability profes- members of medical on now in such difficult circumstances as those sion deterring Court. undesira- before this Rather Falcon v Dissenting Opinion Riley, C.J. imposed penalizes conduct, rule ble professional inevitable unfavorable medical pre- theory The lost chance of survival results. to know the unknowable. There is little ‍​​​‌​​‌‌‌‌‌‌​‌​‌‌​‌​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌‌​​​​​‌​​‍sumes in the conclusion that we satisfaction or comfort simply why Nena Falcon died. The cannot know compensate the de- desire to for the chance might survived, understandable, while cedent justifiable. is not

Brickley JJ., Griffin, concurred with Riley, C.J.

Case Details

Case Name: Falcon v. Memorial Hospital

Court Name: Michigan Supreme Court

Date Published: Sep 26, 1990

Citation: 462 N.W.2d 44

Docket Number: Docket Nos. 86721, 86722, (Calendar No. 8)

Court Abbreviation: Mich.