O‘NEAL v ST JOHN HOSPITAL & MEDICAL CENTER
Docket Nos. 138180 and 138181
Supreme Court of Michigan
Argued January 12, 2010. Decided July 31, 2010.
487 Mich. 485
Raymond O‘Neal brought a medical-malpractice action in the Wayne Circuit Court against St. John Hospital & Medical Center, Ralph DiLisio, M.D., and Efstathios Tapazoglou, M.D., alleging that he had received an exchange blood transfusion too late and that he suffered a stroke as a consequence. Defendants moved for summary disposition, arguing that under
In an opinion by Justice HATHAWAY, joined by Justice WEAVER, and an opinion by Justice CAVANAGH, joined by Chief Justice KELLY, the Supreme Court held:
- Fulton is overruled to the extent that it has resulted in courts improperly treating traditional medical-malpractice claims as loss-of-opportunity claims.
- This case presents a traditional medical-malpractice claim. Accordingly, the first sentence of
MCL 600.2912a(2) , which requires that a plaintiff show that the defendant‘s negligence more probably than not proximately caused the plaintiff‘s injury, applies to it. The second sentence ofMCL 600.2912a(2) , which provides that a plaintiff cannot recover for a loss of opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50 percent, applies only to lost-opportunity claims and does not apply to a traditional medical-malpractice claim such as the claim in this case. - Plaintiff established a question of fact on the issue of proximate causation because he presented sufficient evidence to support a finding that defendants’ negligence more probably than not was the proximate cause of his injuries.
- The judgment of the Court of Appeals must be reversed and the case remanded to that court for further proceedings.
Reversed and remanded to the Court of Appeals.
Justice HATHAWAY, joined by Justice WEAVER, further stated in the lead opinion that Fulton should also be overruled to the extent that it improperly transformed the burden of proof in a traditional medical-malpractice case from requiring proof of a proximate cause to proof of the proximate cause. Justice HATHAWAY also described the analyses permissible in determining whether a plaintiff has established proximate causation, including the statistical analyses allowed. In this case, the use of a standard percentage increase or standard percentage decrease calculation would be appropriate. Fulton‘s analysis using a simple subtraction of percentage points is incorrect.
Justice CAVANAGH, joined by Chief Justice KELLY, further stated in his concurring opinion that a plaintiff may meet the cause-in-fact prong of the requirement to prove proximate causation by showing that the alleged negligence was responsible for a majority, or more than 50 percent, of the risk of the bad result occurring and described the analysis necessary to make that determination. Justice CAVANAGH rejected an analysis involving the change in percentage points when calculating an increased risk and disagreed with the lead opinion‘s use of a test involving only the percentage increase. Justice CAVANAGH would also hold that a plaintiff who cannot meet the burden for a traditional medical-malpractice claim may still pursue a loss-of-opportunity claim if the plaintiff can meet the requirements for those claims under
Chief Justice KELLY, concurring, wrote separately to address Justice YOUNG‘s discussion of comments she had made earlier concerning the change in the Court‘s membership.
Justice WEAVER, concurring, wrote separately to observe that by overruling Fulton, the Court was not overruling its own precedent and thus any discussion of stare decisis in this case was unnecessary. Because it was raised, however, Justice WEAVER noted that stare decisis is a principle of policy and not an end in itself. The consideration of stare decisis and whether to overrule wrongly decided precedent should always include service to the rule of law through the exercise of judicial restraint, common sense, and a sense of fairness.
Justice MARKMAN, joined by Justice CORRIGAN in parts IV(A)(2) and (B), concurring in the result only, agreed that the judgment of the Court of Appeals should be reversed and that the case should be remanded to the Court of Appeals to address defendants’ remaining issue on appeal, but concluded that this case was a lost-opportunity case because it was possible that the bad outcome, plaintiff‘s stroke, would have occurred even if he had received proper treatment. He reiterated the appropriate analysis of lost-opportunity cases that he discussed in his concurrence in Stone v Williamson, 482 Mich 144 (2008), and concluded that plaintiff raised a genuine issue of material fact regarding whether he suffered a greater than 50 percent loss of an opportunity. Justice MARKMAN disagreed that whether a plaintiff‘s action is a lost-opportunity action or a traditional medical-malpractice claim should be determined by whether the plaintiff‘s lost opportunity is greater than 50 percent. He also disagreed that whether a plaintiff‘s action constitutes a lost-opportunity action or a traditional medical-malpractice action is a function of whether the plaintiff used the words “lost opportunity” in his or her pleading; disagreed with the alternative “standard percentage increase calculation” formula used by the lead opinion, which indicated that plaintiff suffered a 300 percent loss of an opportunity; and disagreed that whatever formula best serves the nonmoving party, invariably the plaintiff, is the appropriate formula. The decision by the majority transforms lost-opportunity cases into traditional medical-malpractice cases, resulting in larger potential recoveries for plaintiffs. Instead of limiting a plaintiff‘s recovery to the opportunity that he or she may have lost as a result of the defendant‘s negligence, the majority expands the recovery to include potentially all damages related to the plaintiff‘s medical condition, despite the fact that the plaintiff may well have suffered the condition even if he or she had received perfect medical treatment.
Justice CORRIGAN, dissenting, joined Justice YOUNG‘s dissent in full and joined parts IV(A)(2) and (B) of Justice MARKMAN‘S opinion.
Justice YOUNG, joined by Justice CORRIGAN, dissenting, concluded that plaintiff‘s claim is a lost opportunity claim because there is no “but for” causation between the alleged malpractice and the injury plaintiff suffered, given that plaintiff‘s medical condition created a heightened chance of having a stroke with or without the alleged malpractice and that plaintiff is unable to show that the alleged malpractice increased his chance of suffering a stroke by 50 percentage points. Because this is a lost opportunity case, the second sentence of
Kitch Drutchas Wagner Valitutti & Sherbrook (by Christina A. Ginter and Cheryl A. Cardelli) for St. John Hospital & Medical Center and Ralph DiLisio, M.D.
Rutledge, Manion, Rabaut, Terry & Thomas, P.C. (by Paul J. Manion and Amy E. Schlotterer), for Efstathios Tapazoglou, M.D.
Amici Curiae:
Sommers Schwartz, P.C. (by Richard D. Toth), for the Michigan Association for Justice.
Warner Norcross & Judd LLP (by John J. Bursch, Matthew T. Nelson, and Julie Lam) for the Michigan Health & Hospital Association.
Ottenwess & Associates, PLC (by David M. Ottenwess, Stephanie P. Ottenwess, and Melissa E. Graves), for Michigan Defense Trial Counsel.
Kerr, Russell and Weber, PLC (by Daniel J. Schulte and Joanne Geha Swanson), for the Michigan State Medical Society.
OPINION
HATHAWAY, J. This case addresses the burden of proof necessary to establish proximate causation in a traditional medical malpractice action. At issue is whether the Court of Appeals properly reversed the trial court‘s denial of summary disposition. The trial court ruled that plaintiff had
We hold that the Court of Appeals erred by relying on Fulton and determining that this is a loss-of-opportunity case controlled by both the first and second sentences of
Accordingly, we reverse the judgment of the Court of Appeals and remand this matter to the Court of Appeals for consideration of the issue not decided on appeal in that court.
I. FACTS AND PROCEEDINGS
This case involves allegations of negligence in medical care. Plaintiff had an illness known as sickle cell anemia. Plaintiff developed acute chest syndrome (ACS), which is a known complication of sickle cell anemia. Plaintiff claims that his ACS was misdiagnosed as pneumonia and as a consequence he did not receive the correct treatment. Plaintiff‘s experts opined that ACS requires treatment with an aggressive blood transfusion or an exchange transfusion, either of which needs to be given on a timely basis. While plaintiff ultimately received a transfusion, his experts opined that it was given too late and, as a consequence, plaintiff suffered a disabling stroke. Plaintiff alleged that defendants’ failure to provide a timely transfusion violated the standard of care and that defendants’ negligence was a proximate cause of his disabling stroke. Plaintiff‘s complaint pled a traditional malpractice claim and did not plead a claim for lost opportunity.
In support of his position, plaintiff offered two expert hematologists who testified that defendants’ violations of the standard of care more probably than not caused plaintiff‘s injuries. Plaintiff‘s third hematology expert explained his opinion in statistical terms and testified that a patient with ACS has a 10 to 20 percent chance of developing a stroke. He further testified that with a timely exchange transfusion, the risk of stroke is reduced to less than 5 to 10 percent.
Defendants brought a motion for summary disposition challenging the sufficiency of plaintiff‘s expert testimony on the issue of proximate causation. Even though plaintiff‘s complaint pled only traditional malpractice, defendants’ motion made no distinction between the proof required for proximate causation in a traditional malpractice claim and the burden
Defendants argued that a reduction in the risk of stroke from 10 to 20 percent to less than 5 to 10 percent amounted to at best a 20 percentage point differential,1 which would be insufficient to meet the burden of proof on proximate causation. Defendants relied on Fulton to support their position that plaintiff must comply with this percentage point differential theory. Plaintiff countered that defendants’ statistical portrayal of these numbers was mathematically inaccurate because his experts’ testimony supported a finding that his injuries were more probably than not proximately caused by defendants’ negligence. The trial court agreed with plaintiff. The trial court denied defendants’ motion, ruling that plaintiff had presented sufficient testimony to establish a question of fact on proximate causation.
The Court of Appeals based its decision entirely on Fulton and reversed the trial court in an unpublished opinion per curiam, holding that this case presented a claim for a loss of opportunity and that plaintiff had not met his burden of proof under
In asserting that defendants’ negligence resulted in a stroke, plaintiff essentially argues that had defendants ordered a transfusion sooner, plaintiff would have avoided a stroke. Thus, to say defendants’ failure to apply proper treatment caused the stroke is to say that this failure deprived plaintiff a greater opportunity to avoid the stroke. Consequently, plaintiff‘s claim amounts to one of lost opportunity to achieve a better result, and
§ 2912a(2) is applicable.In Fulton, this Court set forth the formula by which to calculate whether the opportunity to achieve a better result
was greater than 50 percent - specifically, the Court must “subtract[] the plaintiff‘s opportunity to survive after the defendant‘s alleged malpractice from the initial opportunity to survive without the malpractice.” Ensink [v Mecosta Co Gen Hosp, 262 Mich App 518, 531; 687 NW2d 143 (2004)].4
We granted leave to review this matter, asking the parties to brief:
(1) whether the requirements set forth in the second sentence of
MCL 600.2912a(2) apply in this case; (2) if not, whether the plaintiff presented sufficient evidence to create a genuine issue of fact with regard to whether the defendants’conduct proximately caused his injury or (3) if so, whether Fulton v William Beaumont Hosp, 253 Mich App 70 (2002), was correctly decided, or whether a different approach is required to correctly implement the second sentence of § 2912a(2) .5
II. STANDARD OF REVIEW
This case involves review of a trial court‘s decision on a motion for summary disposition, which this Court reviews de novo.6 The issue also involves questions of statutory interpretation. Statutory interpretation is a question of law, which this Court also reviews de novo.7
III. ANALYSIS
At issue is whether the Court of Appeals properly reversed the trial court‘s denial of summary disposition on the issue of proximate causation. In order to answer this question we must review
(1) Subject to subsection (2), in an action alleging malpractice, the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:
(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice or care in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
(b) The defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
(2) In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.
This statute, which governs the burden of proof in medical malpractice cases, was originally added to the Revised Judicature Act in 1977. It has been amended on several occasions, with the most recent amendment in 1993 adding subsection (2), which is at issue in this case. Subsection (2) contains two sentences. It is undisputed that the first sentence, which repeats the burden of proof as articulated in subsections (1)(a) and (b), merely reiterates the longstanding rule requiring a plaintiff to prove “that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants.”
The second sentence of
It is generally accepted that the 1993 amendment to
We next turn to the correct interpretation of both sentences of
case before us. In examining the first line of
The proper interpretation of proximate causation in a negligence action is well-settled in Michigan. In order to be a proximate cause, the negligent conduct must have been a cause of the plaintiff‘s injury and the plaintiff‘s injury must have been a natural and probable result of the negligent conduct. These two prongs are respectively described as “cause-in-fact” and “legal causation.” See Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994); Sutter v Biggs, 377 Mich 80; 139 NW2d 684 (1966); Glinski v Szylling, 358 Mich 182; 99 NW2d 637 (1959). While legal causation relates to the foreseeability of the consequences of the defendant‘s conduct, the cause-in-fact prong “generally requires showing that ‘but for’ the defendant‘s actions, the plaintiff‘s injury would not have occurred.” Skinner, 445 Mich at 163. It is equally well-settled that proximate causation in a malpractice claim is treated no differently than in an ordinary negligence claim, and it is well-established that there can be more than one
proximate cause contributing to an injury. Brisboy v Fibreboard Corp, 429 Mich 540; 418 NW2d 650 (1988); Barringer v Arnold, 358 Mich 594; 101 NW2d 365 (1960); Gleason v Hanafin, 308 Mich 31; 13 NW2d 196 (1944). Finally, it is well-established that the proper standard for proximate causation in a negligence action is that the negligence must be “a proximate cause” not “the proximate cause.” Kirby v Larson, 400 Mich 585; 256 NW2d 400 (1977). Thus, the burden of proof for proximate causation in traditional medical malpractice cases is analyzed according to its historical common-law definitions and the analysis is the same as in any other ordinary negligence claim. Nothing in this opinion changes or alters these well-settled principles.12
We next consider whether the Court of Appeals erred by relying on Fulton and applying the second sentence of
second sentence demonstrates that significant questions surround loss-of-opportunity cases, it is clear from the plain language of the statute that the second sentence is intended to apply to loss-of-opportunity cases. Today we address whether the second sentence of
Fulton involved a claim for the failure to timely diagnose cervical cancer. The plaintiff, the personal representative of the decedent‘s estate, alleged that if decedent‘s cancer had been diagnosed during her pregnancy, she would have had treatment options available that could have saved her life. The theory was that the decedent was not diagnosed until her cancer was untreatable and, as a consequence, she died. The plaintiff‘s expert‘s testimony on proximate causation was described by the Court of Appeals as follows:
Defendants moved for summary disposition under
MCR 2.116(C)(10) , arguing that plaintiff could not show that their negligence was the cause of Fulton‘s death. In response, plaintiff submitted an affidavit from Dr. Taylor, opining that if Fulton‘s cancer had been diagnosed while she was pregnant and if she had been treated after her child was delivered, she would have had an eighty-five percent chance to survive. Dr. Tayloropined that when Fulton was actually diagnosed with cancer, her opportunity to survive had decreased to sixty to sixty-five percent.
Therefore, according to Dr. Taylor, Fulton‘s opportunity to survive the cancer decreased by twenty to twenty-five percent because of defendants’ malpractice. In reply, defendants argued that Dr. Taylor‘s affidavit was improper because it contradicted his deposition testimony and that, in any event, this affidavit was not enough to create a question of fact under
MCL 600.2912a(2) .14
Fulton opined that because the decedent went from an 85 percent pre-malpractice chance of survival to a 60-65 percent post-malpractice chance of survival, she “suffered a loss of a twenty to twenty-five percent chance of survival.”15 Fulton determined that a percentage point differential subtraction analysis was required by the statute. As demonstrated by the Fulton analysis, the conclusion is reached by a simplistic subtraction formula. Fulton subtracted the statistical likelihood of a better outcome without treatment from the statistical likelihood of a better outcome with treatment to determine if the resulting number is greater than 50.
Fulton‘s simplistic subtraction formula is not an accurate way to determine whether a defendant‘s malpractice is a proximate cause of the injury. Fulton‘s analysis was erroneous because it misconstrued proximate causation as it applies to a traditional malpractice case. Under the Fulton subtraction formula it is mathematically impossible for there to be more than one proximate cause. Thus, in creating and applying this simplistic formula, Fulton fundamentally altered a plaintiff‘s burden of proof. Fulton transformed the burden of proof in traditional malpractice cases from a proximate cause to the proximate cause because it allows for only one proximate cause in any case. This proposition is in error because it has no basis in statute
or common law and it is inconsistent with the clear and unambiguous language of the first sentence of
The Court of Appeals’ analysis in the present case perpetuates the Fulton doctrine and the confusion surrounding proximate causation in medical malpractice claims. Much of the confusion stems from the inherent nature of medical malpractice: the plaintiff is generally seeking treatment for a preexisting medical condition that is causing a problem of some sort on its own, whereas in an ordinary negligence claim the plaintiff is generally an otherwise uninjured person who is claiming that the entire injury was caused by the incident.
In the present case, plaintiff was prepared to offer three expert witnesses to testify on his behalf on the issue of proximate causation at the time of trial. Two of plaintiff‘s experts unequivocally opined, in a discovery deposition, that had the necessary treatment been given, it was more probable than not that plaintiff would not have had a stroke.
Plaintiff‘s first expert, Dr. Richard Stein, opined:
Q. I just have one question. Doctor, based on the extrapolation of the peds data that you‘ve described for us, within a reasonable degree of medical certainty, and by that I mean with a greater than 50 percent likelihood, if Dr. Tapazoglou had met the standard of care as
you defined it today, would the stroke have been avoided? A. To a reasonable degree of medical certainty, my opinion is yes, and I have already stated the basis for that opinion.
After opining that an exchange transfusion was necessary to reduce plaintiff‘s hemoglobin S concentration to less than 30 percent, Dr. John Luce, plaintiff‘s second expert, opined:
Q. With respect to Mr. O‘Neal, if the hemoglobin S had been reduced to less than 30 percent, do you have an opinion as to whether or not he would have had the stroke anyhow?
A. I think it is probable that he would not have.
Q. When you say “probable,” are you prepared to say more probably than not had Mr. O‘Neal had his hemoglobin S reduced to less than 30 percent he would not have had a stroke?
A. Correct.
The testimony of the third expert, Dr. Griffin Rodgers, was more specific in expressing the statistics. The trial court summarized his testimony:
Dr. Griffin Rodgers, a hematologist, testified that a patient in sickle cell crisis of acute chest syndrome has in the order of 10 or 20 percent chance of developing a stroke. With a timely exchange transfusion, it reduces the risk of stroke to less than 5 or 10 percent. Dr. Griffin‘s testimony demonstrates that Plaintiff had more than a 50 percent chance to avoid a stroke.
As this case demonstrates, the way causation is analyzed is important, especially when reviewing statistical data. In this instance, do these facts represent at best a 20 percent chance to avoid an injury, as the Court of Appeals concluded, or do they establish proximate causation, as found by the trial court? To answer this question we must determine whether we use a percentage point differential subtraction analysis (as used by the Court of Appeals in applying the Fulton formula) or whether we follow the approach taken by the trial court. In doing so we must follow the analysis that is
most consistent with our historical rules governing proximate causation and the plain language of
In this case, it is undisputed that with or without treatment plaintiff was more probably than not going to avoid the stroke. In other words, even without treatment it was more probable that plaintiff would not have a stroke. However, plaintiff did have a stroke. If the Fulton 50 percentage point differential subtraction analysis is used, plaintiff cannot proceed with a traditional claim because the failure to provide treatment was not the cause of the injury expressed in percentage point differential terms. As previously indicated, however, the problem is that a 50 percentage point differential subtraction analysis necessarily means that there can only be one cause of an injury. This analysis is not consistent with the historical test for proximate causation, which has always been that the malpractice be a proximate cause rather than the proximate cause.
Applying a 50 percentage point differential subtraction analysis requires that we change the traditional analysis of causation in medical malpractice cases to
the proximate cause rather than a proximate cause. This approach is simply not in keeping with our historical view of causation.16
The Fulton approach is incorrect because it requires a reliance on probabilities and possibilities of things that have not yet occurred, rather than reliance on what has actually occurred. Plaintiff in this case did have a stroke and was injured; his claim is for an existing injury, not just the possibility of one. Plaintiff‘s injury is no longer a statistical probability, it is a reality. The focus, once he was injured, is on the connection between defendants’ conduct and the injury. The relevant inquiry for proximate causation is whether the negligent conduct was a cause of plaintiff‘s injury and whether plaintiff‘s injury was a natural and probable result of the negligent conduct. If so, defendants’ conduct was a proximate cause, even though there may have been other causes. The analysis for proximate causation is the same whether we are discussing medical malpractice or ordinary negligence. Defendants’ conduct in this case meets this standard when the defendants’ actual conduct, rather than plaintiff‘s statistical probability of achieving a better outcome, is the focus of the inquiry.
In this instance, plaintiff suffered an injury that was more probably than not proximately caused by the negligence of defendants. As the trial court properly found, defendants’ negligent conduct increased plain-
tiff‘s risk of stroke from less than 5 to 10 percent to 10 to 20 percent. When viewed in the light most favorable to plaintiff, the change is from less than 5 percent to 20 percent. As the trial court analyzed, this represents a change that is greater than 50 percent in this instance. The trial court‘s approach is in keeping with the historical analysis of proximate causation because it involves a comparative analysis, not a simplistic subtraction formula. Determining what is “more probable than not” is inherently a comparative analysis. The proper method of determining whether the defendant‘s conduct more probably than not proximately caused the injury involves a comparative analysis, which is dependent upon the facts and circumstances and expert opinion in a given case.17
We conclude that Fulton‘s simple subtraction analysis is wrong and unsupportable. While
No single formula can be dispositive for all cases. In this case if we were to use a standard percentage decrease calculation (meaning that defendants were responsible for 15 percentage points out of the 20 total percentage points of plaintiff‘s risk of the bad result, so that there is a 15/20 chance or 75 percent chance) defendants’ malpractice
dard percentage increase calculation (meaning that defendants were responsible for 15 percentage points of increase over the 5 percentage points to begin with, thus causing a 300% [15/5] increase in plaintiff‘s risk of harm) defendants’ malpractice was a proximate cause of the injury.19
It is also important to emphasize that not all traditional medical malpractice cases can or will be expressed in statistical or percentage terms, nor is a plaintiff required to express proximate causation in percentage terms. The plain language of the statute requires that proximate causation in traditional malpractice cases be expressed by showing that the defendant‘s conduct was more probably than not a cause of the injury, not by statistical or percentage terms.20
Given that Fulton used an incorrect mathematical formula and is being used to transform the burden of proof in traditional malpractice cases, we must next decide if it has any continuing validity. We find that it has none in the context of traditional medical malpractice cases. In Stone, all seven justices of this Court recognized that Fulton‘s analysis was incorrect or should be found to no longer be good law, though their reasons for doing so varied.21 While I was not a member of this Court when Stone was decided, I also conclude that Fulton did not correctly set forth the burden of proof necessary to establish proximate causation as set forth in
We emphasize that we hold that the second sentence of
IV. CONCLUSION
For all the foregoing reasons, we conclude that the Court of Appeals erred in the present case by reversing the trial court‘s denial of summary disposition. The case before us presents a traditional malpractice claim. It does not present a claim for loss of opportunity. In traditional malpractice cases, the plaintiff is required to prove that the defendant‘s negligence more probably than not caused the plaintiff‘s injury. In this case, the testimony of plaintiff‘s expert witnesses supports plaintiff‘s position on proximate causation. While that testimony is not dispositive, it is sufficient to raise a question of fact to defeat a motion for summary disposition, allowing the issue to be adjudicated on the merits by the trier of fact. Finally, we overrule Fulton to the extent that it has led courts to improperly designate what should be traditional medical malpractice claims as loss-of-opportunity claims and has improperly transformed the burden of proof in a traditional malpractice case from a proximate cause to the proximate cause.
Accordingly, we reverse the judgment of the Court of Appeals and remand this matter to the Court of Appeals for consideration of the issue not decided on appeal in that court.
WEAVER, J., concurred with HATHAWAY, J.
CAVANAGH, J. (concurring). I concur in the result. I agree with the majority that the Court of Appeals’ judgment in this case should be reversed because the Court erred by treating this case as a loss-of-opportunity case instead of a traditional medical malpractice case and, as a result, erred by requiring plaintiff to meet the requirements in the second sentence of
This case raises the issue of what the proper burden of proof for proximate causation is in medical malpractice cases in which the plaintiff had a preexisting risk of the bad result that occurred, even absent the defendant‘s alleged negligence. I agree with the lead opinion that the second sentence of
The first sentence of
Under this approach, a court should consider the total risk of the bad result that the plaintiff faced, including the risk caused by the alleged negligence. Then, the court should consider how much of that risk was created by the negligence. If the negligence was responsible for more than half of the total risk of the bad result and the plaintiff suffered that bad result, then the cause-in-fact prong of the proximate cause analysis is met because it is more probable than not that the defendant‘s negligence was a cause in fact of the bad result.5 This approach is consis-tent with the statutory language “more probable than not” and with the historical approach to proximate causation.6
For the foregoing reasons, I concur with the lead opinion that the judgment of the Court of Appeals should be reversed. I would remand the case to the Court of Appeals for further proceedings.
KELLY, C.J., concurred with CAVANAGH, J.
KELLY, C.J. (concurring). I fully join Justice CAVANAGH‘S concurring opinion. I write separately because in his dissent (which Justice CORRIGAN joins), Justice YOUNG continues to quote and misleadingly characterize a statement I made nearly two years ago off the bench. Post at 532. For my response, I refer the reader to my concurring opinion in Univ of Mich Regents v Titan Ins Co, 487 Mich 289, 318-320; 791 NW2d 897 (2010) (KELLY, C.J., concurring).
WEAVER, J., (concurring). I concur fully with and sign Justice HATHAWAY‘S opinion. I write separately to note that by overruling the Court of Appeals’ decision in Fulton, we are not overruling precedent from this Court. Justice YOUNG‘S dissent, however, attempts to mislead the public into thinking that this Court is overruling such precedent by introducing a discussion of stare decisis into this case.
Justice YOUNG‘S dissent lists 12 cases that have been overruled by this Court in the past 18 months. While Justice YOUNG may feel aggrieved by this Court overruling those 12 cases, amongst those cases were some of the most egregious examples of judicial activism that did great harm to the people of Michigan. Those decisions were made by the “majority of four,” including Justice YOUNG, under the guise of ideologies such as “textualism” and “judicial traditionalism.”
As I stated in my concurrence in Univ of Mich Regents v Titan Ins Co, 487 Mich 289, 311-313; 791 NW2d 897 (2010),
stare decisis is neither an “inexorable command,” Lawrence v. Texas, 539 U.S. 558, 577 [123 S. Ct. 2472; 156 L. Ed. 2d 508] (2003), nor “a mechanical formula of adherence to the latest decision,” Helvering v. Hallock, 309 U.S. 106, 119 [60 S. Ct. 444; 84 L. Ed. 604] (1940).... If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants. See Plessy v. Ferguson, 163 U. S. 537 [16 S. Ct. 1138; 41 L. Ed. 256] (1896), overruled by Brown v. Board of Education, 347 U. S. 483 [74 S. Ct. 686; 98 L. Ed. 873] (1954); Adkins v. Children‘s Hospital of D. C., 261 U. S. 525 [43 S. Ct. 394; 67 L. Ed. 785] (1923), overruled by West Coast Hotel Co. v. Parrish, 300 U. S. 379 [57 S. Ct. 578; 81 L. Ed. 703] (1937); Olmstead v. United States, 277 U. S. 438 [48 S. Ct. 564; 72 L. Ed. 944] (1928), overruled by Katz v. United States, 389 U. S. 347 [88 S. Ct. 507; 19 L. Ed. 2d 576] (1967).
Chief Justice Roberts further called stare decisis a “principle of policy” and said that it “is not an end in itself.” Id. at 920; 175 L Ed 2d at 807. He explained that “[i]ts greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.” Id at 921; 175 L Ed 2d at 807. It appears that Justice YOUNG does not agree with Chief Justice Roberts.
The consideration of stare decisis and whether to overrule wrongly decided precedent always includes service to the rule of law through an application and exercise of judicial restraint, common sense, and a sense of fairness—justice for all.1
MARKMAN, J. (concurring in the result only). Unlike the majority, I conclude that this is a lost-opportunity case because it is possible that the bad outcome here, i.e., suffering a stroke, would have occurred even if plaintiff had received proper treatment. However, I concur in the result reached by the majority because plaintiff has raised a genuine issue of material fact regarding whether he suffered a greater than 50 percent loss of an opportunity under
I. STATUTE AND CASELAW
In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.1
In Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002), the Court of Appeals held that a lost-opportunity plaintiff must prove that his loss was greater than 50 percentage points. That is, the difference between the plaintiff‘s premalpractice chance to achieve a better result and the plaintiff‘s postmalpractice chance to achieve a better result must be greater than 50 percentage points.2
In Stone v Williamson, 482 Mich 144; 753 NW2d 106 (2008), although all seven justices concluded that Fulton was wrongly decided, this Court could not overrule Fulton because, while four justices concluded that Fulton was a lost-opportunity case, six justices concluded that Stone was not a lost-opportunity case. See id. at 164 n 14 (opinion by TAYLOR, C.J.) (“[B]ecause a majority of justices hold that this is not a lost-opportunity case, the issue of the correctness of Fulton cannot be reached, and Fulton‘s approach remains undisturbed as the method of analyzing lost-opportunity cases.“).3 In Stone, Chief Justice TAYLOR and Justices CORRIGAN and YOUNG concluded that the loss-of-an-opportunity provision is “unenforceable.” Id. at 147 (opinion by TAYLOR, C.J.). They concluded that if the plaintiff‘s premalpractice opportunity to achieve a better result was greater than 50 percent, the plaintiff could bring a traditional medical-malpractice action. However, if the plaintiff‘s premalpractice opportunity to achieve a better result was 50 percent or less, the plaintiff could not bring a traditional medical-malpractice action or a lost-opportunity action because lost-opportunity actions are no longer allowed under the language of the statute.
Justices CAVANAGH, KELLY, and WEAVER concluded in Stone that if the percentage point difference between the plaintiff‘s premalpractice opportunity to achieve a better result and his postmalpractice opportunity to achieve a better result was greater than 50 percentage points, the plaintiff could bring a traditional medical-malpractice action. However, if the percentage point difference was 50 points or
Finally, in Stone, I concluded that a lost-opportunity case is “one in which it is at least possible that the bad outcome would have occurred even if the patient had received proper treatment.” Id. at 186 (opinion by MARKMAN, J.).4 I further concluded that in order for a lost-opportunity plaintiff to prevail, he must prove that his lost opportunity was greater than 50 percent. And,
[i]n order to determine whether the “lost opportunity” was greater than 50 percent, the postmalpractice chance of obtaining a better result must be subtracted from the premalpractice chance, the postmalpractice chance must then be subtracted from 100, the former number must be divided by the latter number, and then this quotient must be multiplied by 100 to obtain a percentage. [Id.]
“If this percentage is greater than 50, the plaintiff may be able to prevail; if this percentage is 50 or less, then the plaintiff cannot prevail.” Id.
II. PROBLEMS WITH FULTON
As I observed in Stone, the first problem with Fulton is that it requires a loss of more than 50 percentage points, while
The Court of Appeals in Fulton... concluded that because the plaintiff‘s premalpractice chance of survival was 85 percent and her postmalpractice chance of survival was 60 percent to 65 percent, her “lost opportunity” was 20 percent to 25 percent and, thus, because the plaintiff‘s “lost opportunity” was not greater than 50 percent, she could not recover under
As I also observed in my opinion in Stone, Justice CAVANAGH made this same mistake in his opinion in Stone:
Like the Court of Appeals in Fulton, Justice CAVANAGH offers no explanation as to why he repeatedly calculates the “lost opportunity” in terms of the percentage points lost rather than the actual percentage lost when
MCL 600.2912a(2) clearly states that the “lostopportunity” must be “greater than 50%,” not greater than 50 percentage points. These statistical concepts are utterly distinct. [Id. at 196 n 11.]
I am pleased that Justice CAVANAGH and the other justices who signed his opinion in Stone (Chief Justice KELLY and Justice WEAVER) now apparently recognize this analytical error, and that they now “repudiate” that position. Thus, a majority of the justices of this Court now agree that
The other problem with Fulton, which Justice CAVANAGH and his colleagues in the majority also now apparently recognize, is that “it does not differentiate between those patients who would have survived regardless of whether they received proper or improper treatment and those patients who needed the proper treatment in order to survive.” Id. at 197.5 As I observed in Stone:
Such a differentiation is necessary because only those in the latter group have truly suffered a “lost opportunity” as a result of the improper treatment. That is, if a patient would have survived regardless of whether he received proper or improper treatment, the improper treatment cannot be said to have caused him to lose an opportunity to survive. On the other hand, if the patient would have survived only if he had received the proper treatment, the improper treatment can be said to have caused him to lose an opportunity to survive.
MCL 600.2912a(2) requires us to determine whether the patient more likely than not fell into the latter category rather than the former category,
because the statute only allows a plaintiff to recover for a “loss of an opportunity” that was “greater than 50%” and that was “caused by the negligence of the defendant....” Dr. Waddell‘s calculation does just that:
(Premalpractice chance) - (Postmalpractice chance) / 100 - (Postmalpractice chance)
What the Waddell formula essentially does is test the sufficiency of the expert testimony, which is typically presented in the form of two statistics: the likelihood that a patient would have had a good outcome with proper treatment (the “[premalpractice chance]“) and the likelihood that a patient would have had a good outcome with negligent treatment (the “[postmalpractice chance]“). The Waddell formula allows a court analyzing this data to determine whether the plaintiff, when the patient has experienced a bad outcome, has created a question of material fact concerning whether proper treatment more likely than not would have made a difference. The formula does this by identifying the universe of patients who would have had a bad outcome (the denominator) and the subset of those patients who could have been favorably treated (the numerator).
It is easiest to start with the formula‘s denominator. This denominator consists of the universe of all patients who would have had a bad outcome, for whatever reason. This group includes two subsets of patients: those who would have had a bad outcome because they received negligent treatment, and those who would have had a bad outcome despite receiving proper treatment. The formula identifies this group by subtracting from 100 the percentage of patients who would have had a good outcome even without proper treatment; in other words, it subtracts the “[postmalpractice chance]” from 100. In this way, a court can take the expert‘s statistics and identify those patients who were not treated properly and who experienced a bad outcome. A patient who is the subject of a medical-malpractice action is a member of this group. But we cannot determine whether the patient is a member of this group because he or she was denied the proper treatment or because he or she would have suffered a bad outcome even with proper treatment.
One more calculation must then be made in order to answer the dispositive question posed by the statute: whether it is more likely than not that the patient would have benefited from proper treatment or, put another way, whether the “opportunity to survive or... to achieve a better result” was “greater than 50%.”
Once the numerator and denominator have been calculated, comparison of these two numbers by their quotient
As Dr. Waddell has explained:
“[T]he intent of the law is to disallow damages unless it can be shown that proper treatment creates a better than even (“greater than 50%“) chance of survival of the patients who would have died without treatment. In other words, if appropriate treatment cannot save at least half of the patients who otherwise would have died, then you do not have sufficient evidence to show that the negligence made the difference in the adverse outcome (death). Conversely, if good treatment can save more than half of the patients who otherwise would have died, then you have adequate evidence that the poor treatment or negligence was likely to blame for the bad outcome. This is exactly what this definition of opportunity measures.” [Waddell, 86 Mich B J at 33 (emphasis in original).]
III. APPLICATION
In the instant case, plaintiff alleged that defendants failed to timely and properly treat his acute chest syndrome, a serious complication of sickle-cell disease, and that, as a result, he suffered a stroke. More specifically, plaintiff alleged that defendants should have performed an exchange blood transfusion in which the patient‘s abnormal blood is taken out and replaced with normal blood, rather than a simple blood transfusion in which normal blood is simply added to the patient‘s abnormal blood.7 Plaintiff‘s expert witness testified that there was a 10 to 20 percent chance of stroke without proper treatment, but that with proper treatment there would have been only a 5 to 10 percent chance of stroke. In other words, with proper treatment plaintiff had a 90 to 95 or more percent chance of not suffering
95-80 / 100-80 x 100 = 75%
Therefore, plaintiff has raised a genuine issue of material fact regarding whether he suffered a greater than 50 percent loss of an opportunity under
IV. MAJORITY‘S ANALYSIS
Although I agree with the majority that the Court of Appeals should be reversed, I strongly disagree with its analysis.
A. LOST OPPORTUNITY VS. TRADITIONAL MEDICAL MALPRACTICE
1. GREATER-THAN-50-PERCENT REQUIREMENT
On the one hand, the majority concludes that whether the plaintiff‘s lost opportunity is greater than 50 percent determines whether the plaintiff‘s action is a lost-opportunity action or a traditional medical-malpractice action. I find this conclusion to be completely illogical. Either the defendant‘s negligence has caused the plaintiff to suffer the injury, or it has caused the plaintiff to suffer a loss of an opportunity to achieve a better result—the better result being not to suffer the injury. How substantial the plaintiff‘s lost opportunity is determines whether he satisfies the “greater than 50%” requirement of
In order to satisfy traditional medical-malpractice action requirements, there must be no question that the proper treatment would have resulted in a good outcome (at least with regard to the specific injury suffered by the patient), because if there is any chance that a patient who received proper treatment might nevertheless have suffered the specific bad outcome ultimately suffered by the patient, it cannot be proved that the improper treatment caused the bad outcome. If there is any chance that the proper treatment could have resulted in the bad outcome, the chances of a good outcome with proper treatment and the chances of a good outcome with improper treatment must be compared. That is, under those circumstances, although the plaintiff cannot prove that the defendant‘s malpractice caused the bad outcome because the bad outcome might have occurred even with proper treatment, the plaintiff may be able to prove that the defendant‘s malpractice increased the patient‘s chances of obtaining a bad outcome and, thus, caused him or her to suffer a “lost opportunity” to achieve a better result. This is the only coherent concept of a “lost opportunity” cause of action under
MCL 600.2912a(2) . [Stone, 482 Mich at 271 (opinion by MARKMAN, J.).]
Because it is possible that the bad outcome in this case, i.e., suffering a stroke, might have occurred even if plaintiff had received proper treatment, the instant case constitutes a lost-opportunity action.
On the other hand, the lead opinion concludes that “the second sentence of § 2912a(2) applies only to medical malpractice cases that plead loss of opportunity and not to those that plead traditional medical malpractice . . . .” That is, the lead opinion concludes that whether the plaintiff‘s action constitutes a lost-opportunity action or a traditional medical-malpractice action is a function of whether the plaintiff has used the magic words “lost opportunity” in his pleading. If he did not, the action is a traditional medical-malpractice action and the plaintiff need not concern himself with satisfying the greater-than-50-percent requirement of
Thus, just as whether a plaintiff labels an action as an ordinary negligence action does not control whether that action is, in fact, an ordinary negligence action or a medical-malpractice action, see Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411; 684 NW2d 864 (2004), whether a plaintiff labels an action as a traditional medical-malpractice action or a lost-opportunity action cannot control whether the plaintiff‘s action is, in fact, a traditional medical-malpractice action or a lost-opportunity action. This established principle ensures that the governing law, and not the label the parties attach to that law, controls the outcome of an action. As the United States Supreme Court has observed, any other approach would allow a party to avoid the requirements of a legislative mandate simply by artful pleading. See Allis-Chalmers Corp v Lueck, 471 US 202, 211; 105 S Ct 1904; 85 L Ed 2d 206 (1985). Yet this is exactly what the lead opinion would allow a plaintiff to do in relation to the requirements of
B. WHICHEVER FORMULA BEST SERVES THE PLAINTIFF
The lead opinion offers no explanation, and I can think of none, to support its alternative “standard percentage increase calculation” formula, other than the fact the justices signing the lead opinion believe that it somehow indicates that plaintiff has suffered a 300 percent loss of an opportunity! However, none of this really seems to matter to the justices signing the lead opinion because in the end they conclude that
V. CONCLUSION
As I summarized in Stone:
A “lost opportunity” action is one in which it is possible that the bad outcome would have occurred even if the patient had received proper treatment. On the other hand, if there is no question that the proper treatment would have resulted in a good outcome and the patient
has suffered a bad outcome, the plaintiff possesses a traditional medical-malpractice action. In order for a traditional medical-malpractice plaintiff to prevail, the plaintiff must prove that the bad outcome was more probably than not caused by the defendant‘s malpractice. In order for a “lost opportunity” plaintiff to prevail, the plaintiff must prove that the “lost opportunity” to achieve a better result was more probably than not caused by the defendant‘s malpractice and that the “lost opportunity” was greater than 50 percent. In order to determine whether the “lost opportunity” was greater than 50 percent, the postmalpractice chance of obtaining a better result must be subtracted from the premalpractice chance; the postmalpractice chance must then be subtracted from 100; the former number must be divided by the latter number; and then this quotient must be multiplied by 100 to obtain a percentage. The calculation can be summarized as follows: (Premalpractice chance) - (Postmalpractice chance)
100 - (Postmalpractice chance)If this percentage is greater than 50, the plaintiff may be able to prevail; if this percentage is 50 or less, then the plaintiff cannot prevail. [Stone, 482 Mich at 218-219 (opinion by MARKMAN, J.).]9
As discussed earlier, because it is possible that the bad outcome in this case, i.e., suffering a stroke, would have occurred even if plaintiff had received proper treatment, the instant case is, in fact, a lost-opportunity action, and because plaintiff has raised a genuine issue of material fact regarding whether he suffered a greater than 50 percent loss of an opportunity under
However, I emphatically disagree with the majority‘s incoherent analysis and the implications of such analysis. The majority effectively transforms a lost-opportunity action into a traditional medical-malpractice action, for no other apparent reason than to afford plaintiffs larger potential recoveries. Instead of limiting a plaintiff‘s recovery to the opportunity that he or she may have lost as a result of the defendant‘s negligence, the majority now expands the plaintiff‘s recovery to include potentially all damages related to his medical condition, even though the plaintiff may well have suffered the condition even had he received perfect medical treatment. Thus, having already undermined the Legislature‘s attempt at medical-malpractice reform, see, e.g., Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009); Potter v McLeary, 484 Mich 397; 774 NW2d 1 (2009); and ADM File No. 2009-13, 485
CORRIGAN, J., concurred with MARKMAN, J., with respect to parts IV(A)(2) and (B).
CORRIGAN, J. (dissenting). I fully join Justice YOUNG‘S dissenting opinion. I also join part IV(A)(2) and part IV(B) of Justice MARKMAN‘S opinion concurring in the result only.
YOUNG, J. (dissenting). Our new Chief Justice established the “agenda” for the newly reconstituted Court in her recent comments captured by the press:
We the new majority [Chief Justice KELLY and Justices CAVANAGH, WEAVER, and HATHAWAY] will get the ship off the shoals and back on course, and we will undo a great deal of the damage that the Republican-dominated court has done. Not only will we not neglect our duties, we will not sleep on the bench.1
There are many cases this term that can be said to exemplify the new majority‘s commitment to “undo . . . the damage” of the prior majority, but this case certainly qualifies as a first among equals. Here, not only do my colleagues in the “new majority” destroy the doctrinal integrity of medical malpractice law, they do so in highly fractured opinions that will require a Venn diagram for the bench and bar to construct the points at which four of them agree on any governing principle of law. The new majority has thus made it more difficult to determine what it has done today. Perhaps this is intended.
Chaos and confusion in the law only promote more litigation. The decisions the new majority has issued today in this case will thus benefit only those who profit from litigating medical malpractice cases. The rest of us desire to know what legal rules control our rights and obligations, and we desire and deserve to know them before we act. The citizens of this state are entitled to that kind of clarity in the decisions from the state‘s senior court, not the disorder this Court has sown today. Today‘s decision returns this Court to an era in which the bench and bar must decipher this Court‘s split opinions in order to figure out what principles of law they collectively articulate.2 It is no small challenge
Despite the Legislature‘s codification of the traditional obligation to prove that alleged malpractice “more probably than not” caused a plaintiff‘s injury,3 20 years ago, in Falcon v Mem Hosp, this Court waded into the realm of policy-making and judicially created the lost opportunity doctrine as an exception to the traditional and statutorily codified causation standard of proof.4 Even after the Legislature subsequently recognized the lost opportunity doctrine,5 it also expressly retained the traditional requirement that “[i]n an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants.”6
Until today, this Court has always made clear that when a traditional medical malpractice claim was at issue, the more-probable-than-not standard of causation applied and required the plaintiff to “‘exclude other reasonable hypotheses with a fair amount of certainty.‘”7 However, as the Court did in Falcon, today the majority makes a radical transformation of medical malpractice law and again jettisons traditional causation doctrine by equating causation of the injury with risk of the injury. But, unlike in Falcon, the new majority here does not recognize merely an exception to the traditional malpractice requirement of “but for” causation, it essentially eliminates the traditional rule entirely by importing that exception into all malpractice cases. In declaring this case to be a “traditional” medi-
cal malpractice claim, the new majority applies the relaxed causation rules that previously had applied only to lost opportunity claims. After today, therefore, all malpractice claims will be treated under relaxed causation principles previously applied only to lost opportunity claims. This is a tectonic shift in our law, for which there is no basis but the preference of the justices in the new majority to foster more legal chaos that will promote litigation in this area of the law. This shift is significant because a traditional medical malpractice injury creates liability for the entire injury, while a lost opportunity claim creates liability only for that portion of the increased risk of injury attributable to a defendant.8 Make no mistake: Although Justice CAVANAGH feigns that he is unaware of the significant change in the law being made in this case, the reduced burden of persuasion and the broader scope of damages permitted is the reason the new majority now applies lost opportunity causation principles to all medical malpractice claims.9
Rather than attempting to give meaning to the words of the statute at issue in this
sen “free form” to change the law to match its policy preference that no legal doctrines shall exist to eliminate any claim of medical malpractice—even those doctrines codified by our Legislature to accomplish this very goal.
For someone who campaigned on the theme that more of this Court‘s precedent should be preserved,10 we are surprised at how eagerly Justice HATHAWAY has striven in this case to overturn precedent—even to the extent of offering her own new views that precedent is not a serious barrier to any change desired by the new majority.11
The dicta in Justice HATHAWAY‘S opinion bears out her newfound position on stare decisis because her opinion purports to opine on “the full scope and extent of loss-of-opportunity claims,”12 even while denying that such a claim is involved in this case. In doing so, Justice HATHAWAY engages in a completely gratuitous assault on this Court‘s decision in Wickens v Oakwood Healthcare Sys.13 Wickens involved a claim for the lost opportunity to survive, and it was brought by a living plaintiff—someone who had not yet lost her opportunity to survive. No justice even contends that plaintiff in this case has asserted a claim for the lost opportunity
to survive, and therefore it is completely unnecessary for Justice HATHAWAY to opine on whether the majority or dissent correctly interpreted the question whether a living plaintiff could recover for the loss of an opportunity to survive.
Ordinarily, this fact would hinder any justice from engaging in a discussion on the scope of a claim for the lost opportunity to survive that is not implicated in the case before the Court. Justice HATHAWAY, though, is not constrained to consider only the legal issues she claims are involved here because, consistent with the new majority‘s “agenda,”14 she has a desire to overrule in one fell swoop as many cases decided by the “Republican-dominated court” as she can. Unfazed by the inconvenient fact that Wickens is irrelevant to any question posed by this case, Justice HATHAWAY‘s opinion observes that it “agree[s] with Justice CAVANAGH‘s partial dissent in Wickens . . . .”15 Such dicta do not yet operate to overturn this Court‘s decision in Wickens. Nevertheless, given that Justice HATHAWAY is now the fourth sitting justice on this Court to support the partial dissenting opinion in Wickens, it is safe to conclude that the majority opinion in Wickens has, more probably than not, lost a substantial part of its opportunity to survive.16
to the extent it is inconsistent with their opinions.17 However, again, the new majority overreaches; Fulton applies only to lost opportunity cases, not to traditional medical malpractice cases, and the new majority‘s decision to convert claims previously considered lost opportunity claims into traditional medical malpractice claims serves to eliminate the application of Fulton. The new majority‘s deliberate decision to repudiate Fulton in this expansive manner provides further support for my claim that it now applies lost opportunity principles to all medical malpractice claims.
For these reasons and more, I vigorously dissent. I believe that the new majority has intentionally mischaracterized this as a “traditional” medical malpractice claim because plaintiff‘s expert testimony unquestionably established that the alleged malpractice was not the “but for” cause of plaintiff‘s injury. Were the new majority‘s characterization of this case as a traditional medical malpractice claim accurate, I would affirm for failure of proofs. However, because I believe this to be a lost opportunity case, I would vacate as improvidently entered our September 30, 2009, order granting leave to appeal. I continue to adhere to the position stated in the lead opinion in Stone v Williamson that the second sentence of
I. FACTS AND PROCEDURAL HISTORY
Because none of the opinions that collectively create
.a majority elaborates on the facts necessary to decide this case, I present the following complete recitation of the pertinent facts and procedural history of this case.
Plaintiff, Raymond O‘Neal, suffers from sickle cell anemia, a genetic condition that produces an increased amount of abnormally shaped red blood cells in his bloodstream.19 In January 2003, plaintiff‘s progressively worsening chest pain developed into acute chest syndrome (ACS), a known complication of sickle cell anemia.20 To treat ACS, a patient must undergo blood transfusions to reduce the amount of abnormal red blood cells. The difference between and effectiveness of two types of blood transfusions—standard transfusions and exchange transfusions—is at issue in this case. Standard transfusions add healthy red blood cells to the patient‘s existing blood supply and thereby reduce the patient‘s percentage of abnormal red blood cells. Exchange transfusions are more complicated, but they also more aggressively treat the blood abnormality because they physically remove existing abnormal
On January 23 through 24, 2003, plaintiff received a standard transfusion of three units of blood cells. He received two additional units of blood cells in another standard transfusion on January 28, 2003. Plaintiff suffered a stroke on the right side of his brain on February 1, 2003. Plaintiff received a third transfusion—an exchange transfusion—on February 2 through 3, 2003. Plaintiff‘s condition stabilized after this final transfusion, but he alleged permanent injury
as a result of the stroke, including partial paralysis of his left leg and loss of function of his left hand and arm.
Plaintiff filed the instant medical malpractice complaint, alleging that defendants failed to comply with the appropriate standard of care, which required them to “arrange for exchange transfusions” to treat plaintiff‘s ACS on or before January 28, 2003. He also alleged that “[p]erformance of [an] exchange transfusion prior to the . . . stroke would have prevented the stroke from occurring.”
Plaintiff retained and deposed three expert witnesses to testify on his behalf on the issue of causation. Dr. John Luce, a pulmonary care specialist, testified that reducing plaintiff‘s abnormal hemoglobin concentration to under 30 percent would have made it “probable that he would not have” suffered the stroke, although he acknowledged that plaintiff still could have suffered the stroke even with such a reduced abnormal hemoglobin concentration. Because no data existed on the frequency of strokes in adult sickle cell patients, Dr. Richard Stein, a hematologist, extrapolated from existing data on the effects of aggressive transfusion therapy on children with sickle cell disease. He testified that “more likely than not” plaintiff would have avoided a stroke if he had received aggressive transfusion therapy, what plaintiff alleged is the appropriate standard of care. Dr. Griffin Rodgers, also a hematologist, provided the most detailed testimony regarding the causal relationships between the stroke, plaintiff‘s underlying medical condition, and defendants’ alleged malpractice. He explained that sickle cell patients generally have a baseline risk of stroke that is significantly higher than the average population. Moreover, plaintiff‘s ACS further increased his baseline risk of stroke to between 10 and 20 percent. Dr. Rodgers testified that, with aggres-
sive transfusion therapy, plaintiff‘s risk of stroke would have “been cut in half,” that is, to between 5 and 10 percent. Stated otherwise, plaintiff‘s opportunity to avoid a stroke would have been between 90 and 95 percent with aggressive transfusion therapy, but it was reduced to between 80 and 90 percent without aggressive transfusion therapy. Thus, under either treatment regime, plaintiff‘s experts testified that it was more likely than not that plaintiff would avoid a stroke.
Defendants moved for summary disposition, arguing that Dr. Rodgers‘s testimony regarding plaintiff‘s lost opportunity to avoid a stroke failed to satisfy the requirement of
tunity here was, at most, 15 percentage points. The concurring opinion concluded that plaintiff also failed to present sufficient evidence of proximate causation because his “preexisting medical condition” precluded him from satisfying “his burden of establishing the existence of a genuine factual dispute concerning whether defendants’ alleged professional negligence ‘more probably tha[n] not’ proximately caused his stroke.”25
We granted leave to appeal and directed the parties to brief:
- whether the requirements set forth in the second sentence of
MCL 600.2912a(2) apply in this case;- if not, whether the plaintiff presented sufficient evidence to create a genuine issue of fact with regard to whether the defendants’ conduct proximately caused his injury; or
- if so, whether Fulton v William Beaumont Hosp, 253 Mich App 70 (2002), was correctly decided, or whether a different approach is required to correctly implement the second sentence of § 2912a(2).26
II. LEGAL BACKGROUND
The lead opinion in Stone aptly summarized the pertinent legal background relevant to this case, including the distinction between traditional malpractice claims and lost opportunity claims that the majority now eviscerates:
In the first Michigan case to refer to the legal theory of “the value of lost chance,” the Court of Appeals explained: “This theory is potentially available in situations where a plaintiff cannot prove that a defendant‘s actions were the cause of his injuries, but can prove that the defendant‘s actions deprived him of a chance to avoid those injuries.” Vitale v Reddy, 150 Mich App 492, 502; 389 NW2d 456
(1986). The Court in Vitale noted that allowing such claims would expand existing common law, and it declined to do so, stating that such a decision “is best left to either the Supreme Court or the Legislature.” Id. at 504 . . . .
In accord with this analysis, this Court has stated: “The lost opportunity doctrine allows a plaintiff to recover when the defendant‘s negligence possibly, i.e., [by] a probability of fifty percent or less, caused the plaintiff‘s injury.” Weymers v Khera, 454 Mich 639, 648; 563 NW2d 647 (1997) (emphasis added). The Weymers Court aptly described the lost-opportunity doctrine as “the antithesis of proximate cause.” Id. In cases in which the plaintiff alleges that the defendant‘s negligence more probably than not caused the injury, the claim is one of simple medical malpractice. Id. at 647-648.
In Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990), this Court first recognized a claim for lost opportunity to survive. Falcon was a wrongful-death case in which this Court allowed a claim to go forward even though the plaintiff‘s granddaughter would have had only a 37.5 percent chance of surviving a medical accident had she received proper care. Because proper medical procedures had not been followed, the granddaughter‘s chance of surviving the accident went to essentially zero. The lead opinion in Falcon admitted that the plaintiff could not show that the malpractice had more likely than not caused her granddaughter‘s death, but could show that it had caused her granddaughter to lose a “substantial opportunity of avoiding physical harm.” Id. at 470 (LEVIN, J.). The lead opinion disavowed the traditional rule that requires a plaintiff to show that, but for the defendant‘s negligence, the patient would not have suffered the physical harm, saying that the “more probable than not standard, as well as other standards of causation, are analytic devices—tools to be used in making causation judgments.” Id. at 451. Instead, despite the fact that the plaintiff could not show that the doctor‘s malpractice had more probably than not caused her granddaughter‘s death, the plaintiff had a claim because the malpractice did cause her granddaughter harm. The 37.5 percent chance for a better outcome was
“hardly the kind of opportunity that any of us would willingly allow our health care providers to ignore.” Id. at 460. This harm occurred before the granddaughter‘s death, at the moment “[w]hen, by reason of the failure to implement [certain] procedures,” she was denied any opportunity of living. Id. at 469, 471 n 44. The lead opinion characterized its holding as requiring the plaintiff to show, more probably than not, that the malpractice reduced the opportunity of avoiding harm: “failure to protect [the granddaughter‘s] opportunity of living.” Id. at 469. Loss of her 37.5 percent opportunity of living, the lead opinion stated, “constitutes a loss of a substantial opportunity of avoiding physical harm.” Id. at 470.
The lead opinion in Falcon thus concluded that the loss-of-opportunity claim accrued not when the patient died, but at the moment she went from having a 37.5 [percent] chance of survival to having no chance of survival. Under this theory, a plaintiff would have a cause of action independent of that for the physical injury and could recover for the malpractice that caused the plaintiff to go from a class of patients having a “good chance” to one having a “bad chance.” Without this analysis, the plaintiff in Falcon would not have had a viable claim because it could not have been shown that the defendant more probably than not caused the physical injury. Until Falcon, medical-malpractice plaintiffs alleging that the defendant‘s act or omission hastened or worsened the injury (such as by failing to diagnose a condition) had to prove that the defendant‘s malpractice more probably than not was the proximate cause of the injury. See, e.g., Morgan v Taylor, 434 Mich 180; 451 NW2d 852 (1990); Naccarato v Grob, 384 Mich 248, 252; 180 NW2d 788 (1970); Sheffington v Bradley, 366 Mich 552; 115 NW2d 303 (1962).
When the Court decided Falcon,
MCL 600.2912a read:“In an action alleging malpractice the plaintiff shall have the burden of proving that in light of the state of the art
existing at the time of the alleged malpractice: “(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable
professional practice in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
“(b) The defendant, if a specialist, failed to provide the recognized standard of care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.”
Three years after Falcon, the Legislature enacted 1993 PA 78, amending
“(1) Subject to subsection (2), in an action alleging malpractice, the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:
“(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice or care in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
“(b) The defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
“(2) In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.” [New language emphasized.]
As can be seen, the Legislature retained the already-existing language, making it subsection 1 of the statute. Both subsection 1(a) and subsection 1(b) require the plaintiff to show that, “as a proximate result of the defendant failing to provide [the appropriate standard of practice or care], the plaintiff suffered an injury.” Further, the Legislature added subsection 2. Specifically, the first sentence of this new subsection codifies and reiterates the common-law requirement that a plaintiff show that the defendant‘s malpractice more probably than not caused the plaintiff‘s injury. The second sentence of subsection 2 adds that, in medical-malpractice cases, a “plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.” However, one must keep in mind that the relevant caselaw when subsection 2 was enacted held that the lost-opportunity doctrine applies “in situations where a plaintiff cannot prove that a defendant‘s actions were the cause of his injuries....” Vitale, [150 Mich App] at 502 (emphasis added). That is, the first sentence of subsection 2 requires plaintiffs in every medical-malpractice case to show the defendant‘s
Thus, in contrast with traditional malpractice claims, the very nature of the lost opportunity doctrine allows a plaintiff to recover in the absence of proximate causation between the alleged malpractice and the physical injury suffered. The lead opinion in Stone determined that “the two sentences of subsection 2 create a paradox, allowing claims in the second sentence while precluding them by the first sentence.”28 In this case, Justice HATHAWAY‘s opinion and Justice CAVANAGH‘s concurring opinion altogether avoid the implications of this paradox by essentially applying the lost opportunity analysis
(which never required “but for” causation) to a traditional medical malpractice claim that, until today, always required “but for” causation. In doing so, the new majority radically alters proximate causation doctrine by casting aside the traditional component of “but for” causation and by replacing causation of the injury with consideration only of the increased risk of the injury. This is a revolutionary change in our law and represents a change that not even the Falcon Court dared to make.
A necessary component of proximate causation is “but for” causation, or causation in fact.29 As this Court has previously held:
As a matter of logic, a court must find that the defendant‘s negligence was a cause in fact of the plaintiff‘s injuries before it can hold that the defendant‘s negligence was the proximate or legal cause of those injuries.
Generally, an act or omission is a cause in fact of an injury only if the injury could not have occurred without (or “but for“) that act or omission. While a plaintiff need not prove that an act or omission was the sole catalyst for his injuries, he must introduce evidence permitting the jury to conclude that the act or omission was a cause.
It is important to bear in mind that a plaintiff cannot satisfy this burden by showing only that the defendant may have caused his injuries. Our case law requires more than a mere possibility or a plausible explanation. Rather, a plaintiff establishes that the defendant‘s conduct was a cause in fact of his injuries only if he “set[s] forth specific facts that would support a reasonable inference of a logical sequence of cause and effect.”30
As Justice CAVANAGH has himself previously concluded, plaintiffs must present evidence of proximate causation that “‘must exclude other reasonable hypotheses with a fair amount of certainty.‘”31 By allowing plaintiff‘s claim to proceed as a traditional medical malpractice claim, the new majority today eviscerates the distinction between the weaker causation allowed in lost opportunity claims and the “but for” causation that has always been required in traditional medical malpractice claims.
A. PLAINTIFF ASSERTED A LOST OPPORTUNITY CLAIM BECAUSE THERE IS NO “BUT FOR” CAUSATION BETWEEN THE ALLEGED MALPRACTICE AND THE PHYSICAL INJURY SUFFERED
As stated, the crux of a lost opportunity claim is that a plaintiff cannot show that, more probably than not, the alleged malpractice proximately caused his injuries. This is because a plaintiff need only show that the alleged malpractice merely reduced his opportunity to achieve a better result. Accordingly, whether a claim is a traditional malpractice claim or a claim for the loss of an opportunity to achieve a better result depends on whether the alleged malpractice proximately caused the alleged injury.
Contrary to the new majority‘s position, this case presents a prototypical lost opportunity claim because no proximate causation exists between the alleged malpractice and plaintiff‘s physical injury. Plaintiff‘s experts testified that plaintiff‘s underlying medical condition—sickle cell anemia complicated by ACS—increased his risk of stroke above that of a healthy person and even above that of a sickle cell patient who
has not developed ACS. Plaintiff‘s underlying medical condition created a heightened chance of suffering a stroke, with or without the alleged malpractice. As Dr. Rogers, who provided the most detail of plaintiff‘s causation experts, testified, plaintiff would have had a 5 to 10 percent chance of suffering a stroke even if he had been treated according to the plaintiff‘s proposed standard of care.
The evidence here, therefore, does not ” ‘exclude other reasonable hypotheses [of the cause of injury] with a fair amount of certainty,’ ”32 as is required to prove “but for” causation in a traditional medical malpractice action. Plaintiff‘s expert testified that, in the absence of the alleged medical malpractice, plaintiff had between a 90 percent and 95 percent chance of avoiding a stroke. The alleged medical malpractice reduced plaintiff‘s chance of avoiding a stroke to between 80 percent and 90 percent. Even looking at the evidence in the light most favorable to the plaintiff, there is no basis for a fact-finder to conclude that defendants’ actions more probably than not caused plaintiff‘s injury. But this is unimportant because the new majority now only requires causation for the increased risk of injury.
Simply stated, the plaintiff has not asserted—and neither Justice HATHAWAY‘s opinion nor Justice CAVANAGH‘s concurring opinion assert—that the alleged medical malpractice increased his chance of suffering a stroke by the more than 50 percentage points required to prove proximate causation.33 This fact irrefutably establishes
that the plaintiff asserts a lost opportunity claim, not a traditional medical malpractice claim.
As stated, in determining that plaintiff‘s claim is a traditional medical malpractice claim, the new majority today applies relaxed causation rules that previously had applied only to lost opportunity claims—claims involving an increased risk of injury that did not rise to the level of proximate causation. These relaxed rules are inconsistent with the position that three of the justices of the new majority have taken previously on what evidence is required for a plaintiff to prove a traditional medical malpractice claim.34 Such claims have always required “but for” causation. After today‘s shift, therefore, all malpractice claims will be established using principles that could only have applied to lost opportunity claims. Few can miss how significant a departure this is from all of this Court‘s medical malpractice jurisprudence that preceded this case.
1. THREE JUSTICES TODAY REPUDIATE THE TRADITIONAL CAUSATION PRINCIPLES THAT THEY REAFFIRMED JUST TWO YEARS AGO
The new majority appears to be of the view that the less said about its radical rewriting of this statute the
no one, not even those in the Falcon decision who created an exception, has ever required less than a “more than 50 percentage point” change in order to establish a traditional medical malpractice claim. Just two years ago, Justices CAVANAGH, WEAVER, and KELLY reaffirmed this position. See Stone, 482 Mich at 175-177 (opinion by CAVANAGH, J.).
better. It is apparently not required to maintain a consistent position or explain a fundamental change in position when a judge is “doing” policy rather than interpreting the law. Certainly, such disclosures are probably not desired by jurists whose positions are undergoing radical “revision.” I commend the reader to compare the positions taken today by Chief Justice KELLY and Justices CAVANAGH and WEAVER with those taken just two years ago in Stone.35 These three justices now repudiate the traditional proximate cause requirements that they previously recognized and applied at that time.
In Stone, Justice CAVANAGH, writing for himself and Justices KELLY and WEAVER, held that a traditional medical malpractice action required “but for” causation. He specifically posed a hypothetical example in which a plaintiff‘s opportunity to achieve a better result was reduced by 40 percentage points, from 80 percent to 40 percent. Thus, this hypothetical plaintiff‘s risk of suffering a bad result increased from 20 percent to 60 percent as a result of the alleged medical malpractice. According to Justice CAVANAGH just two years ago, this hypothetical plaintiff “could not meet the more-probably-than-not standard of causation....” 36 Today these same three justices declare that a much smaller reduction in the opportunity to achieve a better result—from 90 to 95 percent to 80 to 90 percent—now satisfies the causation standard of a traditional malpractice case. This is not a product of the rule of law. This is a naked display of judicial whimsy and aggressive policy-making.
Justice HATHAWAY‘s opinion places much emphasis on the fact that our caselaw indicates that “a plaintiff need not prove that an act or omission was the sole catalyst for his injuries,”37 in recognition that any given injury may have more than one proximate cause. It then uses this fact of logic and causation to create a false distinction that radically refashions proximate causation and negates the traditional requirement—as previously articulated even by Justice CAVANAGH—that proof of “but for” causation must “exclude other reasonable hypotheses with a fair amount of certainty.”38
The proposition that any injury may have more than one proximate cause is an unremarkable one for anyone who understands the principles of “but for” causation. An injury that involves a series of individual occurrences before it is manifested will have multiple “but for” causes. However, in such a case, each of these causes must be proved to have produced the injury under the more-probable-than-not standard, not merely proved to have increased the risk of injury, as this case does.
One of this Court‘s cases on traditional causation, Brackins v Olympia, Inc, illustrates this point.39 The plaintiff, a roller skating instructor, fell while roller skating at the defendant‘s rink. He alleged that another skater had clipped his right skate and that, “as a result his skates became locked with his right foot and skate
behind his left skate.”40 Furthermore, the plaintiff claimed that he could not have prevented the fall “because his left skate struck a ridge or inequality in the floor of the rink....” 41 The defendant rink owner sought summary disposition because it claimed that the proximate cause of the plaintiff‘s injury was the other skater clipping the plaintiff‘s skate, not the flaw in the rink surface. To be sure, the other skater‘s action was a “but for” cause of the plaintiff‘s injury, as the injury would not have occurred without it. However, this Court concluded that the skating rink surface was also a proximate cause of the plaintiff‘s injury:
Defendant is not absolved from liability for its negligence because of the act of the other skater.... The proofs support the conclusion... that plaintiff fell because of the roughness of, or the inequality in, the floor of the skating rink. Defendant‘s negligence, if not the sole proximate cause of the accident, was, in any event, a proximate cause.42
Each of the “but for” causes in Brackins could be proved with near certainty. Accordingly, the Brackins Court concluded that both “but for” causes more probably
The dual “but for” causes in Brackins are very different from the situation in the instant case. Here, all that plaintiff can show is that defendants’ alleged malpractice exacerbated plaintiff‘s preexisting sickle cell anemia to the extent of increasing his risk of suffering a stroke by between 5 and 10 percentage points. Plaintiff has simply not proved that the alleged malpractice caused his stroke, nor has he “exclude[d]” the “other reasonable hypothes[i]s“—his preexisting sickle cell anemia—“with a fair amount of certainty.”44 Thus, plaintiff‘s preexisting sickle cell anemia could well have operated to injure him even in the absence of defendants’ alleged malpractice.
3. JUSTICE HATHAWAY‘S AND JUSTICE CAVANAGH‘S OPINIONS TAKE INAPPROPRIATE LIBERTIES WITH PLAINTIFF‘S EXPERT STATISTICAL EVIDENCE BY FAILING TO COMPARE LIKE WITH LIKE
Even in applying their radical new approach to proximate causation, the justices in the new majority
condition exists.” Ante at 497 n 12. This is patently false. First, as stated, there can be multiple “but for” causes for a particular injury, including the negligent conduct of multiple medical providers. All of these hypothetical negligent acts, however, must themselves be “but for” causes, like the chain reaction of events that caused the roller skating injury in Brackins. Second, a medical provider‘s negligence may, more probably than not, be a “but for” cause of an injury even when the plaintiff has a preexisting condition. This was the very situation that this Court encountered in Stone. The plaintiff in Stone alleged that a timely diagnosis of an aortic aneurysm would have given him a 95 percent chance of attaining a good result. Instead, his aneurysm ruptured, requiring emergency surgery and ultimately amputation of his legs. According to the plaintiff‘s experts, “misdiagnosed patients whose aneurysms rupture have only a 10 percent chance to achieve a good result.” Stone, 482 Mich at 148 (opinion by TAYLOR, C.J.). Thus, even though the plaintiff had a preexisting medical condition, the defendants’ misconduct increased the plaintiff‘s probability of suffering a bad result from 5 percent to 90 percent. This increase of 85 percentage points provided a sufficient factual basis to defeat the defendants’ motions for judgment notwithstanding the verdict.
only reach their desired result by manipulating the expert‘s statistical evidence in ways inconsistent with the experts’ own use of the statistical evidence and, similarly, in ways inconsistent with the uncontroversial and essential principle of statistical methodology of comparing “like with like.” The new majority‘s inappropriate use of the statistical evidence presented in this case provides further proof that it is engaging in result-driven jurisprudence. Only this motivation could support such a mathematically illiterate presentation.
Justice HATHAWAY‘s opinion declares, under the guise of requiring “results [to] be viewed in the light most favorable to the nonmoving party,”45 that any mishmash of figures that yields a result of greater than 50 percent will establish proximate causation between the alleged malpractice and the plaintiff‘s injury sufficient to defeat summary disposition. Thus, while Justice HATHAWAY‘s opinion expressly declines to adopt any particular mathematical formula for determining whether proximate cause exists in a given case, it essentially adopts every formula that an attorney or judge can manufacture. This is not a serious analysis—“statistical” or otherwise. Justice HATHAWAY‘s opinion is simply an invitation for the artful manipulation of probability figures and calls to mind the adage Mark Twain once attributed to Benjamin Disraeli, that there are “three kinds of lies: lies, damned lies, and statistics.”46
Two of the formulas that Justice HATHAWAY‘s opinion identifies by name bear closer analysis. Her opinion indicates that the evidence in this case can be “viewed
as a standard percentage increase calculation....” 47 The flaw in using this “standard percentage increase calculation” in a traditional medical malpractice case is obvious. Such a calculation would turn the facts of Falcon—a case in which no justice believed that the plaintiff could prove “but for” causation using a more-probably-than-not standard48—into a traditional medical malpractice case.
In Falcon, the plaintiff‘s decedent, Nena Falcon, suffered an amniotic fluid embolism, “an unpreventable complication” of childbirth.49 A woman who suffers this complication has a 62.5 percent probability of dying, even if it is treated immediately. Because of alleged malpractice, however, Nena Falcon‘s amniotic fluid embolism was not treated immediately. This alleged malpractice increased her chance of death to 100 percent.50 Under the “standard percentage increase calculation” used by Justice HATHAWAY to support her radical departure from requiring traditional proximate causation in this case, the defendant‘s alleged malpractice in Falcon was responsible for increasing Nena Falcon‘s chance of dying by 37.5 percentage points over the preexisting 62.5 percentage point chance of dying. This represents a 60 percent increase in her chance of dying (37.5/62.5), and satisfies Justice HATHAWAY‘s conclusion that any
formula that reaches the magic number of more than 50 percent is satisfactory. Justice HATHAWAY‘s opinion has, therefore, taken a judicially created aberration of proximate causation, Falcon, and applied it so that she can satisfy the proximate cause component of a traditional medical malpractice claim. Fortunately, Justice HATHAWAY‘s opinion is the only opinion that adopts this approach, so this “standard percentage increase calculation” does not, therefore, have support from a majority of this Court.
However, a second approach used by Justice HATHAWAY that I wish to discuss does appear to have the support from a majority of this Court—what Justice HATHAWAY calls the “standard percentage decrease calculation.”51 This approach takes the pre- and postmalpractice probabilities of suffering the injury and calculates what proportion of the postmalpractice probability of injury is attributable to the malpractice. The percentage approach is found nowhere in this Court‘s proximate cause jurisprudence, yet both Justice HATHAWAY‘s opinion and Justice CAVANAGH‘s concurring opinion apply it to conclude that plaintiff has made the requisite showing of probable cause to defeat defendants’ motions for summary disposition.
As stated, three of the justices who support this approach do so in opposition to their previously stated positions.52 Moreover, Justice HATHAWAY‘s opinion and
Justice CAVANAGH‘s concurring opinion apply the new standard in an especially troubling fashion. It is a
in treating both that hypothetical case and the instant case as traditional medical malpractice cases, he is unequivocally converting what used to be a lost opportunity case into a traditional medical malpractice case.
A plaintiff who has a preexisting medical condition is only able to prove “but for” causation when the alleged malpractice increases the plaintiff‘s risk of suffering a “bad result” by more than 50 percentage points. Otherwise, there is no way to exclude, as Justice CAVANAGH (and this Court) has previously required, all “other reasonable hypotheses with a fair amount of certainty.” Skinner, 445 Mich at 166 (quotation marks and citation omitted). The approach adopted by the opinions of Justices HATHAWAY and CAVANAGH negates this basic requirement of proximate cause and would allow a plaintiff to recover for a bad result even in situations in which other, nonmalpractice “causes” for the result predominated in creating it.
The new majority‘s approach would allow a plaintiff to recover in full from a doctor who, for example, failed to diagnose cancer at its earliest stages, but still diagnosed it at a stage where it was much more probable than not that a patient would survive. To put figures on this situation, suppose a plaintiff‘s risk of dying from cancer is 1 percent if it is caught at its earliest stages. A doctor who fails to catch the cancer at that stage, but who catches it and treats it at a stage where the risk of dying from cancer is 3 percent, then, is liable, under the new majority‘s new approach, for the entire injury, should one occur, because the failure to diagnose contributed to 2/3 of the risk of injury. This is true, according to the new majority, even though the doctor only decreased the patient‘s chance of surviving by 2 percentage points, from 99 percent to 97 percent.
By shifting many lost opportunity claims into traditional medical malpractice claims, the new majority creates additional liability of a defendant for the entire injury, not just for the increased risk of injury, as lost opportunity claims provide. See Falcon, 436 Mich at 471 (opinion by LEVIN, J.) (“In this case, 37.5 percent times the damages recoverable for wrongful death would be an appropriate measure of damages.“). This shift in determining a defendant‘s liability is essential to understanding what the new majority is trying to accomplish in this case. Now plaintiffs need only prove that a doctor‘s negligence contributed to the risk of injury, not that his negligence actually caused the injury. And no amount of pretended ignorance about the significance of these changes by members of the new majority alters their fundamental and radical impact on this area of the law.
truism in statistical methodology that one marshaling statistical evidence to support causation must apply the principle of ceteris paribus by “comparing like with like.”53 The new majority violates this basic principle of statistical analysis to reach its desired result. The expert testimony indicated that plaintiff‘s chance of suffering a stroke would have been reduced from the range of 10 to 20 percent to the range of 5 to 10 percent if plaintiff had been treated according to the asserted standard of care. In clarifying these statistical ranges, the expert concluded that plaintiff‘s likelihood of suffering a stroke would have been “cut in half” under the standard of care urged by plaintiff. In other words, the upper end of the range of plaintiff‘s likelihood of suffering a stroke was “cut in half,” from 20 percent to 10 percent, and the lower end of that range was also “cut in half,” from 10 percent to 5 percent. Rather than comparing like with like—the lower end of each range or the upper end of each range—a majority of this Court fallaciously compares the lower end of one range (5 percent) with the upper end of the other (20 percent). They do so in order to conclude that the alleged malpractice caused 75 percent of plaintiff‘s chance of suffering a stroke (15/20).54 This failure to “compare like with like” is a patent error of statistical analysis, but it
gets the majority where it needs to go to support its conclusion that plaintiff has established “but for” cause.
Finally, Justice HATHAWAY‘s opinion concludes that “plaintiff established a question of fact on the issue of proximate causation because plaintiff‘s experts opined that defendants’ negligence more probably than not was the proximate cause of plaintiff‘s injuries.”55 This statement might have had more relevance if it had been supported by the experts’ actual statistical evidence of plaintiff‘s chances of suffering the stroke. However, as discussed above, plaintiff‘s experts were unable to show proximate causation
As stated, this case is a prototypical lost opportunity case because plaintiff cannot establish
C. MCL 600.2912a(2) IS (STILL) UNENFORCEABLE AS ENACTED
Because the new majority concludes that plaintiff‘s claim is a traditional medical malpractice claim, it does
not need to reach the question whether plaintiff‘s claim meets the requirements of the second sentence of
- Lee v Macomb Co Bd of Comm‘rs, 464 Mich 726; 629 NW2d 900 (2001);
- Crawford v Dep‘t of Civil Serv, 466 Mich 250; 645 NW2d 6 (2002);
- Nat‘l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004);
- Associated Builders & Contractors v Dep‘t of Consumer & Indus Servs Dir, 472 Mich 117, 124-127; 693 NW2d 374 (2005);
- Mich Chiropractic Council v Comm‘r of the Office of Fin & Ins Servs, 475 Mich 363; 716 NW2d 561 (2006);
- Rohde v Ann Arbor Pub Sch, 479 Mich 336; 737 NW2d 158 (2007);
- Mich Citizens for Water Conservation v Nestlé Waters North America Inc, 479 Mich 280, 302-303; 737 NW2d 447 (2007); and
- Manuel v Gill, 481 Mich 637; 753 NW2d 48 (2008).
11. In Bezeau v Palace Sports & Entertainment, Inc, 487 Mich 455; 795 NW2d 797 (2010), the new majority expressly overruled the limited retroactive effect of Karaczewski v Farbman Stein & Co, 478 Mich 28; 732 NW2d 56 (2007).
12. In Univ of Mich Regents v Titan Ins Co, 487 Mich 289; 791 NW2d 897 (2010), the new majority overruled Cameron v Auto Club Ins Ass‘n, 476 Mich 55; 718 NW2d 784 (2006).
Given this list of “lately departed” decisions of the “Republican-dominated Court,” killing one Court of Appeals case such as Fulton—even if entirely irrelevant to the question the new majority purports to address here—is hardly surprising for the new majority which, before its members became the majority, were individually and collectively notably more “hawkish” on preserving precedent. See Pollard v Suburban Mobility Auth for Regional Transp, 486 Mich 963, 963-965 (2010) (YOUNG, J., dissenting statement). As in three other cases decided this term, Justice WEAVER repeats her tired and unsuccessful attempt to defend her changing position on stare decisis. Ante at 513-515. See also Univ of Mich Regents, 487 Mich at 310-314 (WEAVER, J., concurring); Lansing Sch Ed Ass‘n, 487 Mich at 381-384 (WEAVER, J., concurring); McCormick, 487 Mich at 223-226 (WEAVER, J., concurring). Her position does not become any more convincing with repetition. My dissenting opinion in Univ of Mich Regents, 487 Mich at 325-327 & n 11 (YOUNG, J., dissenting), explains in full why Justice WEAVER‘s position is merely an attempt to justify stark judicial policy-making.
new claim for loss of an opportunity to survive. The new subsection provides:
In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.57
As the lead opinion in Stone aptly observed, there are multiple problems in determining whether the requirements of
[T]he first sentence of this new subsection codifies and reiterates the common-law requirement that a plaintiff show that the defendant‘s malpractice more probably than not caused the plaintiff‘s injury. The second sentence of subsection 2 adds that, in medical-malpractice cases, a “plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.” However, one must keep in mind that the relevant caselaw when subsection 2 was enacted held that the lost-opportunity doctrine applies “in situations where a plaintiff cannot prove that a defendant‘s actions were the cause of his injuries....” Vitale, [150 Mich App] at 502 (emphasis added). That is, the first sentence of subsection 2 requires plaintiffs in every medical-malpractice case to show the defendant‘s malpractice proximately caused the injury while, at the same time, the second sentence refers to cases in which such proof not only is unnecessary, but is impossible.58
Even ignoring the internal inconsistency, the second sentence of subsection (2) is incomprehensible as written. Subsequent to the amendment, the split Court of Appeals panel in Fulton offered two contradictory interpretations of the second sentence, neither of which was consistent with the text of that sentence as enacted. The Fulton majority determined that ”
The dissenting judge in Fulton did not fare any better. His interpretation of
an opportunity to achieve a better result unless the [initial] opportunity was greater than 50%.”
Thus, both the majority and the dissent in Fulton inserted additional words into the statute. Their reasons for doing so were identical: each believed the additional language was necessary to enforce the perceived legislative intent to respond to the Falcon Court‘s creation of the lost opportunity claim. However, these multiple interpretations show that, even if they were correct that the amendment was a legislative response to Falcon, the scope of such response was far from clear.
In the end, the lead opinion in Stone concluded:
It is confounding to attempt to ascertain just what the Legislature was trying to do with this amendment....
As written, the second sentence of
MCL 600.2912a(2) can be made understandable only by adding words or by redefining “injury” in a way significantly contrary to the mass of caselaw at the time the sentence was added.... None of these multiple, contradictory interpretations can be shown to be the “correct” construction of legislative intent. Choosing between them can only be a guess.... Accordingly, I conclude that the second sentence of subsection 2 cannot be judicially enforced because doing so requires the Court to impose its own prerogative on an act of the Legislature.62
Since this Court‘s split opinions in Stone, the Legislature has not clarified the confusion surrounding the appropriate interpretation of
The decision by the new majority that this case represents a traditional medical malpractice case further muddles this important area of the law. Moreover,
three justices of the new majority have changed their published positions over the past several years on the nature of the evidence required to prove proximate cause.
If the numerous fractured decisions and inconsistent opinions of the members of this Court fail to demonstrate that this statute is impossible to interpret reasonably, then it is hard to envision a better illustration that
IV. CONCLUSION
Confusion and uncertainty in the law prevent citizens from arranging their affairs in a predictable fashion. This Court initially created uncertainty in adopting the lost opportunity claim in Falcon because it was so profoundly at odds with traditional principles of causation. It is no wonder that the Legislature had difficulty reconciling ”Falcon causation” with the traditional causation that the Legislature clearly desired to maintain in medical malpractice claims. Today, the new majority has created even more uncertainty in interpreting the legislative response to Falcon. While the result in this case undoubtedly serves the interests of lawyers who litigate medical malpractice cases, it poorly serves the people of this state to
enacted through the democratic process, should not be agents of “societal change” they desire, and they certainly should not contribute to confusion and chaos in the law. The new majority‘s resolution of this case fails on both counts.
Plaintiff‘s claim is a prototypical lost opportunity claim. As such, the second sentence of
Today is a sad day for predictability in Michigan law. The disorder sown by the new majority in their several opinions speaks poorly of the quality of decision-making in this Court. Doctrinal destruction aside, the obvious manipulation of the statistical evidence by the justices of the new majority to achieve their goal of creating a cause of action when the proofs have failed is itself worthy of condemnation.
For all of the reasons stated, I vigorously dissent from overreaching by the new majority and, instead, would vacate as improvidently entered this Court‘s September 30, 2009, order granting leave to appeal.
CORRIGAN, J., concurred with YOUNG, J.
Notes
For a discussion of the common law that existed before the enactment of this statutory provision, see my opinion concurring in the result in Stone v Williamson, 482 Mich 144; 753 NW2d 106 (2008) (opinion by MARKMAN, J.). She Said, Detroit Free Press, December 10, 2008, p 2A. Chief Justice KELLY objects that I “continue[] to quote and misleadingly characterize a statement [she] made nearly two years ago off the bench.” Ante at 513. As my dissenting opinion in Univ of Mich Regents v Titan Ins Co, 487 Mich 289, 322-325, 327-330; 791 NW2d 897 (2010) (YOUNG, J., dissenting), explains at length, my characterization of her statement is not misleading. Chief Justice KELLY‘s remarks both set an agenda for undoing the precedents of the previous 10 years and are especially mean-spirited in light of the political attacks against former Chief Justice TAYLOR during the 2008 campaign.Consequently, I want to focus my remarks here on the embarrassment that the common law presents—or ought to present—to a conscientious judicial traditionalist....
To give a graphic illustration of my feelings on the subject, I tend to think of the common law as a drunken, toothless ancient relative, sprawled prominently and in a state of nature on a settee in the middle of one‘s genteel garden party. Grandpa‘s presence is undoubtedly a cause of mortification to the host. But since only the most ill-bred of guests would be coarse enough to comment on Grandpa‘s presence and condition, all concerned simply try ignore him. [Young, A judicial traditionalist confronts the common law, 8 Texas Rev L & Pol 299, 301-302 (2004).]
(Premalpractice chance of better result) - (Postmalpractice chance of better result) / 100 - (Postmalpractice chance of better result)
or, as the majority now does(Postmalpractice chance of worse result) - (Premalpractice chance of worse result) / (Postmalpractice chance of worse result)
the same figure is obtained. Given Justice CAVANAGH‘s forceful criticisms of my formula in Stone, it is encouraging that we are now in agreement on this critical point. See, e.g., Stone, 482 Mich at 183-184 (opinion by CAVANAGH, J.) (“the Waddell formula [which I adopted in Stone and to which I continue to adhere] is blatantly inconsistent with the language ofOne could read this dicta in Justice HATHAWAY‘s opinion as a signal that the new majority will overrule Wickens. However, the majority has already so signaled in its order granting leave to appeal in Edry v Adelman, 485 Mich 901 (2009). Edry was decided on narrow evidentiary grounds, Edry v Adelman, 486 Mich 634; 736 NW2d 567 (2010), but, as Justice HATHAWAY‘s decision in this case exemplifies, its decision was decidedly not a reaffirmation of the continued vitality of Wickens.A civil action for malpractice may be maintained against any person professing or holding himself out to be a member of a state licensed profession. The rules of the common law applicable to actions against members of a state licensed profession, for malpractice, are applicable against any person who holds himself out to be a member of a state licensed profession. [Emphasis added.]
By my count, the new majority has now overturned this term 12 cases in addition to the one that it overturns today:
- In People v Feezel, 486 Mich 184; 783 NW2d 67 (2010), the new majority overruled People v Derror, 475 Mich 316; 715 NW2d 822 (2006).
- In McCormick v Carrier, 487 Mich 180; 795 NW2d 517 (2010), the new majority overruled Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004).
In Lansing Sch Ed Ass‘n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010), the new majority overruled the following cases: