Weymers v. Khera

KHERA v WEYMERS Argued January 14, (Calendar 6). 102961. No. Decided Docket No. June 1997. Weymers Kimberly brought malpractice and Jonathan a medical Khera, against in Drs. action the Oakland Circuit Court Rheka Gre- Ferrer, others, gorio alleging negligence V. in and the failure to timely Kimberly, kidney diagnose resulting in and treat failure. The summary court, Mester, J., granted disposition Fred M. for the defendants, noting plaintiff that the had failed to show that it was kidney probable by more than not that .her failure was caused the negligence, opportunity alleged and refused to the extend lost doc- injury to a situation where the did result in death. The trine pulmonary injury court further held that claim for was not suffi- ciently pleaded, plaintiff’s request and denied the to amend her complaint allege pain suffering pulmonary and from the condi- Appeals, P.J., tion. The Court of and Gribbs and Smolensk, White, reversed, JJ., holding opportunity applied that the lost doctrine injury death, physical less than and that the trial court abused its allowing complaint discretion in not to amend her pulmonary because the defendants were on notice of the claim of unduly prejudiced (Docket and would not have No. been appeals. 169280).Dr. Khera by opinion joined In an Justice Chief Justice Mallett, Riley, Supreme and Justices Court held: Brickley Weaver, Michigan malpractice law, Under medical no cause of action physical exists for the loss of an to avoid harm less The trial court did not abuse its discretion in determin- than death. sufficiently ing plead that the did not a claim for pulmonary injury denying plaintiff’s suffering from her and in pulmonary to amend her to add a new claim for motion injury. malpractice action, part prima 1. In a as of its facie medical case, prove negligence proxi- defendant’s must that the injuries by mately proving caused the both cause fact legal proximate cause. The antithesis of cause is the doctrine recovery opportunity, which allows when the defendant’s of lost i.e., fifty percent less, negligence possibly, probability 454 Mich 639 plaintiffs injury. approaches caused the There are three alternative pure approach, to the lost doctrine: the lost chance proportional approach, possibility approach. and the substantial causation, recovery allowing Each lowers the standard of without establishing case, Appeals, relying In cause fact. this the Court of possibility approach, opportu- on the substantial extended the lost nity opportunity any doctrine to the loss of a substantial to avoid physical harm, justifying its decision on deterrent reasons. While impor- and the deterrent loss-allocation functions of tort law are tant, rejected scrapping negligence causation must be in cases injury alleged something where the is less than death. malpractice actions, plaintiff allege, 2. In medical must with certainty, every necessary reasonable definiteness and fact to con- by establishing applicable stitute a cause of action the standard of care, standard, injury, proximate breach of that and causation injury. case, plaintiff’s between the breach and the In this the com- plaint sufficiently specific was not to inform the defendants of a pulmonary injury; rather, only injury claim of it addressed the of kidneys. plaintiff general allegation pain A cannot make a of suffering expect any and and the defendant to determine without guidance injury from the which formed the basis of the pain suffering. Thus, and the trial court did not abuse its discretion ruling pulmonary injury put in that a hint of was insufficient to the defendants on notice. pleadings ordinarily granted, A3. motion to amend should be only delay, faith, and should be denied because of undue bad repeated deficiencies, prejudice oppos- failure to cure undue to the party, ing futility. may prejudice and A trial court find when the moving party theory recovery seeks to add a new claim or a new of facts, discovery closed, just on the basis of the same set of after is trial, opposing party before and the shows that there was not rea- notice, any source, moving party rely sonable from that the would theory case, on the new claim or at trial. In this the trial court did plaintiff’s denying not abuse its discretion in the motion to amend sought just because the amendment to introduce a new claim trial, discovery closed, before after had and the defendants demon- they knowledge strated that did not have that the rely intending to on the new claim at trial. only Boyle Justice concurred in the result.

Reversed. Kelly, concurring part dissenting part, Justice in and in would recognize opportunity a cause of action for the loss of an to avoid physical opportunity pro- harm less than death. The lost doctrine exception general requirement proving vides an to the of causation malpractice A in actions. show medical must possibility negligence there is a substantial that the defendant’s injury. cause the policy opportunity apply The reasons behind the lost doctrine patient equally each, to fatal and nonfatal cases. In seeks to improve opportunity ameliorating, avoiding, reducing of physical pain suffering. majority explain harm and fails to why proper occurs, if the doctrine is if death but a lesser Considering policy arguments underlying involved. the lost opportunity doctrine, distinguishing there is no rational basis phy- has in between cases which death resulted and which cases recovery. negligence Hosp, sician has limited Memorial Falcon v (1990), 436 Mich 443 should be extended to nonfatal cases. Cavanagh, dissenting, agreed Justice that a cause action for an the loss avoid less harm than death physical recognized. should be The trial court abused its discretion deny- ing allega- motion to amend the to add an aggravation suffering tion mental physical from pathology. of the pulmonary App 231; (1995) 533 NW2d 334 reversed. — — Malpractice Negligence Opportunity 1. Medical Lost Doctrine. malpractice law, Michigan Under medical no cause action exists physical for the loss of an harm avoid less than death. Pleading Allegations — — — Malpractice 2. Medical General Pain and Suffering. malpractice plaintiff general allegation

A medical cannot make a of pain suffering expect determine, and and the defendant to without any guidance plaintiff, from the which formed basis of pain suffering. and Pleading Following — — 3. Discovery New Claims Lack Notice. may prejudice moving party A trial court find when the seeks to add a theory recovery new claim a new on the of the basis same set facts, discovery closed, just trial, oppos- after before and the ing party provided, any shows that no reasonable notice was from source, moving party rely that would new claim on the or the- ory at trial.

Sommers, Schwartz, Schwartz, Silver & P.C. (by Robert B. Sickels and Patrick for Burkett), plaintiffs. 454 Mich for L. the defendant.

David Rosenthal appeal, (1) three J. we address issues: In this Riley, Michigan recognizes for the a cause of action whether physical less an to avoid harm loss of (2) court abused its dis- death, whether the trial than plaintiffs complaint determining did in that cretion sufficiently plead pain suffering á claim for and pulmonary injury,1 (3) the trial from her and whether denying plaintiffs in court abused its discretion to her to add a claim for motion amend injury. pulmonary suffering from We hold and Michigan recognize does not a causé of action physical avoid harm the loss of an did less than death. We also hold that trial court plaintiffs ruling com- not abuse its discretion inadequately refusing plaint specific was complaint. Accordingly, allow to amend her Appeals reverse decision. we the Court FACTS AND PROCEEDINGS Kimberly early Weymers, In October twenty years coughing, old, was ill who became with aching, congestion. her fever, nausea, chest After improve a week, condition did not for more than she Walled Medical where went to defendant Lake Center initially by physician’s examined assistant. she physician’s The assistant from concluded respiratory symptoms from a infec- that she suffered gave week, After tion her antibiotics. another to the medical center because returned symptoms physician’s diag- intensified. assistant we For of this assume suffered purposes appeal, plaintiff pulmonary injury. plaintiff pneumonia nosed with and sent her home with a stronger prescription of antibiotics. On Octo- 23, 1990, ber plaintiff visited the medical center a third time because her condition had improved. A sample blood indicated that suffered from severe anemia. Defendant Dr. Frank Fenton, owner of the center, medical arranged be admitted to defendant St. Joseph’s Hospital Pontiac.

On the of evening October 1990, plaintiff was admitted to St. Joseph’s intensive care unit and was given blood transfusions to combat the anemia. On October 24, 1990, defendant Dr. Rheka Khera examined and suspected the possibility of a kidney problem and asked defendant Dr. Gregorio Ferrer, a nephrologist,2 to examine her. Dr. Ferrer examined her day and concluded that she could have a rare disease, Goodpasture’s syndrome.3 He began an immunosuppressive therapy4 immediately, kidney scheduled a biopsy for October 25, 1990. initially Plaintiff responded to the treatment, but soon 2 Nephrology is “the branch of medical science that deals with the kid ney.” College Random Dictionary. House Webster’s 3 Goodpasture’s syndrome is having glomerulonephritis (a type kidney condition of [t]he dis- ease, glomerulonephritis) but hemopty- more under associated with (the spitting up blood). generally

sis disease, It is a fatal and at autopsy lungs (abnormal are found to show hemosiderosis deposits iron) hemorrhage. Attorney's Schmidt’s Diction- [2 ary Medicine, p G-120.] 4 Immunosuppressive therapy is (as multiple myeloma, treatment of certain [t]he diseases chronic

nephritis, diseases, allergy) by sup- autoimmune medicines which press immunity response body [Id., supra, p of the n 3 1-41.] 639 Mich 454 644 began to deteriorate. Plaintiffs after her condition biopsy postponed 1990,and she 26, October until was respirator. placed a was on plaintiff to was transferred 26, 1990, On October Royal placed Hospital in Oak and William Beaumont plaintiff time, Dr. Salah. At the under the care of Isam kidney percent func- days. of her had ten to fifteen delayed biopsy for another three The was tions. plasma performed exchange, hospital it but a The kidney functioning.5 plaintiffs Plaintiff failed to save kidneys totally dialysis placed her failed after was on kidney transplant. eventually underwent a and August medical mal 16, 1991, On filed this practice against Khera, Ferrer, defendants Drs. suit against Medical Walled Lake Center Fenton, discovery, Mercy Hospital. During Joseph and St. by expert plaintiff presented Dr. an affidavit witness Renal Division of the Uni Eric Chief of the Neilson, versity Pennsylvania Hospital, if who testified that given plaintiff proper care she would had defendants retaining thirty forty percent to chance have had a kidneys. functioning Dr. Neilson noted that of her expectancy “significantly plaintiffs had been life consequence of loss of her kid as a shortened” neys, ultimately prema she suffer and that would discovery Joseph’s closed, St. ture death.6 After summary pursuant Hospital disposition to moved for 2.116(C)(10), arguing had to failed MCR alleged negligence caused the demonstrate that the Joseph’s equipped provide time, Hospital was to At the St. not plasma exchange. September 1993, were from Dr. affidavit statements Neilson’s only presented the trial the court in a motion reconsideration after granted summary disposition in had favor defendants. court

Opinion Court s.7 kidney joined loss of her The other defendants response motion, plaintiff motion. In to defendants’ kidney asserted that she could recover for her dam age though fifty percent even there was less than a chance negligence that defendants’ caused the dam age on the basis of the lost doctrine rec in Falcon v ognized Hosp, 443; Memorial 462 NW2d 44 Plaintiff (1990). also that her argued damages were limited the loss of her kidneys, pulmo but also included suffering from nary injury.8 responded Defendants had allege damages pulmonary injury. failed to from her agreed The trial court with granted defendants and summary disposition. their motion for trial The court noted that had failed to show that it was more than her probable kidney not that failure was by caused defendants’ alleged negligence, and refused to extend lost recognized the doctrine in Falcon, wrongful case, death in to situations which injury the did not result in death. The trial court fur- ther held pulmonary that claim of injury 7 hearing motion, Joseph’s Hospital, Before on the defendants St. Center, Walled Lake Medical and Dr. Fenton settled case their with Weymers approximately $300,000. for 8 stated, an Plaintiff attached affidavit Dr. Eric Neilson which rele part: vant Additionally, opinion patient 3. I am of the that while a at St.

Joseph Hospital, Kimberly Weymers pulmonary suffered extensive damage. Specifically, opinion 4. I am of the that the failure of staff at Hospital Joseph plasmapheresis therapy arrange [plasma St. to timely exchange], manner, pulmonary ain in the resulted extensive hemorrhage and deterioration. Weymers’ Kimberly pulmonary 5. deterioration resulted her placement weeks, required aon ventilator for over two and she therapy extensive thereafter. 646 639

Opinion the Court Plain- complaint. in her sufficiently pleaded her to trial court to allow subsequently asked the tiff pain and complaint specifically allege to her amend trial The pulmonary from condition. suffering her request. denied this court which appealed Appeals, in the Court of

Plaintiff court, holding trial of the reversed decision physical applied doctrine lost 231, 236-237; Mich App less than death. d Appeals Court of also held (1995). NW2 in not abused its discretion the trial court because allowing plaintiff to amend pul plaintiffs claim of were on notice defendants monary injury would not have been and therefore 241. “unduly prejudiced” by the amendment.9 Id. at appealed, Drs. and Ferrer and this Defendant Khera May on 1996.10 appeal leave to granted Court I. DOCTRINE LOST OPPORTUNITY

A summary disposition their brought Defendants Under that pursuant 2.116(C)(10). motion to MCR subsection, summary disposition proper when is no damages, as to amount of there “[e]xcfept moving any fact, issue as material and the genuine partial as a judgment entitled or party judgment is must be sat- words, of law.” In “court matter other impossible . . . that for the claim isfied ‘it 9 Appeals address the whether The Court of did not issue sufficiently pul pleaded suffering her a claim for from monary injury trial its discretion in because it found that the court abused complaint. 240, denying plaintiff’s n 6. See id. at motion to amend 10 1996, 30, Mich On this dismissed Ferrer’s 451 898. October Court pursue. appeal for failure to 647 1997] supported defense to be at trial because of some defi ” ciency which cannot be overcome.’ Stevens v McLouth Steel Corp, Products 433 365, 370; Mich 446 NW2d 95 (1989), quoting Rizzo v Kretschmer, 389 363, Mich 207 372; NW2d 316 In (1973). making that determination, the court affidavits, plead considers ings, depositions, admissions, and documentary evi parties dence filed in the light most favorable Quinto party to the v Cross & opposing the motion. Co, Peters 358, Mich 362; 547 NW2d 314 (1996). summary We review disposition decisions de novo. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996).

B We address whether Appeals the Court of erred in recognizing a cause of action for the loss of an oppor- tunity to avoid physical harm less than death.

Under Michigan medical malpractice law, part as prima its case, facie a plaintiff prove must that the defendant’s negligence proximately caused plain- injuries. tiff’s MCL 600.2912a; MSA 27A.2912(1); Locke v Pachtman, 216, Mich 222; 521 NW2d 786 (1994). proximate To establish cause, prove must the existence of both cause in fact and Square Skinner v legal cause. Co,D 153, 162-163; 516 NW2d 475 (1994). To establish cause in fact, present the plaintiff must substantial evidence from which

jury may likely not)[ conclude that more than but for the phrase likely probability fifty “more than not” means a more than percent. Falcon, supra at n 6. 454 639 648 Mich Opinion of Court the injuries plaintiff’s would have conduct, not the defendant’s occurred.

[*] ^{[*] [*]} plaintiff which affords a “The must introduce evidence likely that it is more for the conclusion reasonable basis was a of the defendant cause than not that the conduct possibility such of A mere of causation fact the result. pure spec enough; one of when the matter remains evenly probabilities conjecture, at or or the are best ulation duty balanced, court to direct a ver it becomes the of the 164-165, quoting Prosser & dict for the defendant.” at [Id. p41, Keeton, (5th ed), § Torts 269.][12] must that cause, establish the show legal To “may that the defendant’s conduct it was foreseeable victim, and . . . create a of harm the risk [that] causes intervening the result of that conduct Moning 400 Alfono, were v Mich foreseeable.” 439; 254 (1977). NW2d 759 is the of proximate

The cause doctrine antithesis lost allows opportunity. opportunity lost doctrine when negligence a to recover the defendant’s fifty percent less, possibly, i.e., probability a or injury.13 a Reisig, caused the See The loss of 12 145, 151; Whiting Corp, also Mich 240 NW2d 468 See Jordon v 396 negligence may (1976) (“[t]he possibility that have mere a defendant’s cause, conjectural, an suf the theoretical accident is not been either two”); Szylling, a link Glinski v ficient establish causal between jury 182, 201-202; (“[a]'case go (1959) Mich NW2d 637 cannot to a 358 supported merely by 99 something might speculation have been sheer further, cause, or, step possibility going was a that some one that there 632, 636; thing cause”); Daigneau Young, v NW2d 88 was the possibility (1957) (“ than must be more a mere unreasonable ‘[t]here injury’ ”). caused the conduct the defendant permits way, opportunity the lost doctrine Stated another when, malpractice malpractice to maintain an action for plaintiff denied injury, where an to avoid even fifty percent or less.

chance theory malpractice medical cases: An over- view, 13 Am J Trial Advocacy 1163 In (1990). Falcon, supra at (Levin, J., 469-470 lead opinion), 472-473 J., this concurring), adopted Court the lost (Boyle, opportunity doctrine in wrongful death cases. Our immediately Legislature rejected Falcon and the lost opportunity doctrine. MCL 600.2912a(2); MSA 27A.2912(1)(2).14 Accordingly, only Falcon applies to causes action that arose before 1, October 1993. See 1993 PA 4(1) subsection (providing the effec- tive date of the We amendment). do not address the issue raised in Falcon because it is not now before this Court.15However, for the reasons that follow, we refuse to extend Specifically, Falcon. we hold that no cause of action exists for the loss of an opportunity physical to avoid harm less than death.16 14 provides: 2912a(2) Subsection alleging malpractice, plaintiff In an action medical the has the proving injury burden prob- that he or she suffered an that more ably proximately than not was negligence caused the of the alleging defendant or defendants. In malpractice, an action medical plaintiff opportunity

the cannot recover for loss of an to survive or opportunity an to achieve a better result unless the greater than 50%. 15 argument Plaintiff’s that her case falls within Falcon because defend negligence likely premature ants’ unpersuasive will lead to a death is plaintiff’s injury kidneys, because claim was for to her it was not for wrongful death. 16Although malpractice the case action, before us is a medical we note holding applies negligence that our However, to all actions. our decision today does not affect the situation where the inextricable combination of joint tortfeasors combines to cause harm in a manner where individual responsibility Thus, cannot be fixed. where several factors combine to produce injury, any them, an operating alone, and where one of would harm, plaintiff may have been sufficient to cause the a establish factual by showing actions, likely causation not, that the defendant’s more than producing plaintiff’s were a injuries. “substantial Brisboy factor” a v Corp, 540, 547; (1988). Fibreboard 429 Mich 418 NW2d 650 See also Pros Keeton, supra, 41, p ser & § distinguishable 266. These situations are 454

C approaches to the lost alternative are three There pure (1) lost chance the doctrine: approach, (3) proportional approach, (2) approach approach. possibility low- Each substantial a the effect that causation, with ers the standard establishing plaintiff without recover is allowed to in fact. cause approach pure allows chance

The lost likely injury 'though it was more his even recover for if the have suffered not that he would than Thompson negligent. v See not been defendant had Hosp, City Community 597; Ariz 688 P2d Sun (1984). that the has to show negligence decreased the defendant’s injury. avoiding slight, matter how chance, no showing, receives he If makes such Id. damages.17Id. full pure approach proportional identical to the is approach; recov- however, the chance

lost multiplied ery percent of chance lost is limited to the ordinarily by damages that would amount of the total McKellips v St Francis in that action. be recovered 1987). (Okla, Hosp, For 476 Inc, 467, 741 P2d example, liability opportunity is fastened after because from the lost doctrine plaintiff’s injuries

judicial some- were caused determination that the impossible. proof responsibility one, In lost but person suggests cases, preponderance that no known of the evidence the was at fault. 17 Moore, approach. South Car Only See follow this extreme five states doctrine, 201, (1996), citing rejects R 207 the lost chance 48 SC L olina Inc, Hosp Bldg, (Fla, supra; Gooding Thompson, 2d 1015 v Univ 445 So Hosp, 1986); Rouge (La, 1984); Hastings Gen’l 498 So 2d 713 v Baton CAMC, Bashline, (1978); Thornton v 256; Hamil v Pa 392 A2d 1280 360; (1983). W SE2d 316 172 Va v Khera Weymers patient forty percent if a had recovering chance of from negligent physician’s breast cancer and a misdiagnosis dropping percent, results her chances to ten then the plaintiff thirty percent can recover of her total death-related injuries. Thus, damages if $100,000, totaled the $30,000. [Moore, rejects could recover South Carolina the doctrine, 201, (1996).] lost-chance 48 SC L R approach, possibility- The last the substantial approach, adopted by this Court in Falcon for wrongful pure death cases. It also is a variation of the approach. approach, plain- lost chance Under this possibility tiff must show that there is a substantial negligence injury. that the defendant’s caused his See supra Falcon, at 469. It is unclear what constitutes a possibility.” (holding “substantial See id. at 470 that a percent 37.5 chance of survival was substantial, but refusing showing to state what constitutes a threshold substantial). clear, It is however, that it does not fifty percent.18 have to be more than Id. Thus, the possibility approach substantial is identical to the approaches approach other to the extent that each injury though allows a to recover for his even likely it was more than not that he would have suf- injury fered the if the defendant had not been negligent.19 18Furthermore, Falcon, supra 471, this Court in at combined the sub possibility approach proportional approach stantial with the and reduced damage percentage award to reflect the of chance lost. 19 Falcon, supra injury In at this Court defined the as the loss of harm, i.e., death, to avoid the rather than the harm itself. Redefining injury, however, problem: does not solve the causation Whether the court lowers the standard of causation or redefines chance, as a lost the result is the same in that a compensation despite greater probability receives that he or injury physician she would have suffered the even if the had used [Moore, doctrine, supra due care. Lost chance n 17 at 206-207.] 454 Mich

Opinion the Court of d Court, this the case now before Turning to possibil- substantial on the Appeals, relying of Court doctrine opportunity the lost extended ity approach, any to avoid opportunity a substantial to the loss of justified its decision on the harm. The Court physical reason of deterrence: proffered often limited to cases lost doctrine is If the examples malprac- flagrant involving death, potentially of uncompensated the same go in cases in which tice could oppor- diagnose in a lost negligent or treat results failure tunity harm, i.e., paralysis egregious or coma. to avoid Thus, functions of tort law the deterrent and loss-allocation liability escape could be undermined if defendants would negligent that cause demonstra- for the conduct effects App ble losses. 237.] [210 the deterrent and loss- acknowledge We How- important.20 functions of tort law are allocation argument Joseph King, Jr., championed H. the deterrence Professor article, Causation, valuation, in his for the lost doctrine preexisting personal involving conditions and torts chance (1981): consequences, L J 90 Yale future all-or-nothing approach subverts the to loss of a chance also recovery objectives by denying law for the deterrence of tort By statistically that causes demonstrable losses. effects conduct approach

placing law, all-or-nothing such losses outside tort loss-assigning law. the universe of distorts the role of that Over cases, avoiding both the adverse effects such losses of chances preexisting of future conse- of a condition and the occurrence statistically quences injury represent actual losses. We can be of an patients probably (but certain, example, that a number of with preexisting necessarily) conditions would have achieved fatal conduct, hoped-for even if cure in the absence of the tortious doing individually so. A fail- had a better-than-even chance of none the costs of these losses to their tortious sources ure to allocate range of functions served the causation- undermines the whole system process integrity valuation and strikes at the of the torts allocation. loss 653

Opinion Court reject we ever, scrapping (the causation bedrock of law) injury our tort cases where the negligence by alleged something is less than death, lost for the doctrine’s deterrent effect. As Supreme succinctly the Texas Court stated: reject the notion that the enhanced deterrence of [W]e approach might jus- the loss of chance be so valuable as to tify scrapping concepts our traditional of causation. If law, deterrence were the sole value to be served tort we dispense altogether could with the notion of causation damages negligence award on the basis of alone. v [Kramer Hosp, (Tex, 1993).] Lewisville Memorial 858 SW2d Furthermore, Supreme the South Carolina Court reflects our sentiments in this regard: persuaded

We are “the loss chance doctrine is fun- damentally requisite degree at odds with the of medical cer- necessary titude to establish a causal link between the patient physician.” of a and the tortious conduct aof responsibility Legal approach reality assigned in this is in possibility negligence based on the mere that a tortfeasor’s contrary was a cause of ultimate harm. This formula is proof undergird to the most basic standards of which system. Owings, 72, 77; tort v 318 SC 456 SE2d 371 [Jones (1995) (emphasis original, omitted).] citations Accordingly, because we refuse to discard causa- tion in negligence kind, actions this we do not rec- ognize a cause of action for the an opportunity loss of physical to avoid harm less than death. Therefore, the Appeals Court of recognition of such a cause of action was in error and is reversed. 454 AND AMENDMENT OF PLEADING

H. SPECIFICITY

A scope concerning meaning Decisions motions granting denying and decisions pleading, are within the sound discretion pleadings, to amend only appropriate and reversal of the trial court discretion. Dacon v when the trial court abuses that NW2d 369 Transue, 315, 328; (1992); 441 Mich Co, 649, 658; & 390 Mich Fyke Ben P Sons v Gunter 134 (1973). 213 NW2d

B We first address whether the trial court abused its complaint did not holding plaintiffs discretion that sufficiently plead pain suffering a claim for and from pulmonary injury. requires complaint spe-

MCR that a be 2.111(B)(1) reasonably party cific inform the adverse enough him. against Court, of the nature the claims This Dacon, supra 329, explained at designed opposite, equivalent, is but rule to avoid two

[t]Ms straightjacket evils. At one extreme lies the of ancient summarily action. forms of Courts would dismiss suits plaintiffs when could not fit the facts into these abstract conceptual packages. ambiguous At the other extreme lies pleading. Leaving guess and uninformative a defendant to upon recovery justified grounds what believes is play justice. violates basic notions of fair and substantial equiva- ambiguity Extreme formalism and interfere extreme lently ability judicial system with the of the to resolve a dis- pute poten- on the merits. The former leads to dismissal of tially meritorious claims while the latter undermines a present . . defendant’s a defense. . Neither acceptable. Opinion Court malpractice actions, In medical must with reasonable definiteness and certainty, allege, necessary every fact to constitute a cause of action. supra 332-333; Cassidy, at Simonelli v Dacon, 635, 644; 59 NW2d 28 To establish medi- (1953). must malpractice, cal establish the follow- applicable (1) care, (2) standard of ing elements: standard, (3) injury, proximate of that and (4) breach injury. between the breach and the alleged causation supra at 222. Locke,

c to the case before this Turning Court, plaintiff the trial court abused its argues discretion in that her determining complaint sufficiently did not a claim for plead suffering pulmo- from her nary injury. We disagree hold that the trial court its did not abuse discretion. specific

Plaintiffs first amended was not reasonably enough to inform defendants of a claim pulmonary injury. Paragraph 29, the section of plaintiffs complaint addressing proximate cause elements of malpractice claim, pulmonary injury. mention did not it Rather, injury of plaintiff’s kidneys: addressed the proximate As a direct and result of the aforementioned negligence malpractice of and as acts described Kimberly 28, Plaintiff, Weymers, paragraphs 26 and has suf- injuries grievous fered and continues to suffer severe and damages, including, to, following: and but not limited Significant expenses, past, present medical A. and future. earnings earning capacity. B. Loss of and physical pain suffering, and mental and anxi- C. Severe ety, anguish, embarrassment, emotional humiliation and enjoyments life. loss of natural of 454 Mich renalp[21] requiring D. Permanent loss all function periodic frequent dialysis.[22][Emphasis and added.] by persuaded plaintiffs argument We are not the trial court abused its discretion rec- refusing to ognize plaintiffs general allegation pain and encompassed pulmonary her claim for suffering injury. malpractice A in a action cannot make a general allegation suffering expect and any the defendant to determine without guidance pertaining kidneys is defined as “of or Renal to or the surround ing regions.” Dictionary, supra. Random House n 2 22Furthermore, complaint, the first section of the which set forth the general allegations regard defendants, with to all indicated that plaintiff’s kidneys: asserted was limited to Defendant, admitting diagnosis 19. Dr. Rheka Khera’s differential Goodpastures Syndrome. included [sic] 25, 1990, Defendant, 20. On or about October Dr. Rheka Khera requested Defendant, Gregorio Ferrer, a consultation from Dr. nephrologist, performed and the consultation was on that date. Defendant, Gregorio Ferrer, impression 21. Dr. also reached the Goodpastures Syndrome, ordered the administration of steroid

therapy planned perform kidney biopsy day. to the next 26, kidney 1990, biopsy per- 22. On October before the formed, Kimberly Weymers Hospital was transferred to Beaumont Royal where Oak she was admitted. Plaintiff, Kimberly Weymers, hospitalized 23. remained at Beau- Hospital During confinement, mont until November 1990. diagnosed having Goodpastures she was as and was treated for Syndrome. Similarly, complaint setting applicable the section of the forth the stan- pulmonary dards of care did not mention medicine. The standards of care were as follows: (1) duty provide plaintiff Walled Lake Medical Center had the to with applicable physicians specializing the “standards of care to in the field of family practice” (¶¶ 25, 27); (2) duty provide plaintiff prac- Khera had to with the “standards of applicable physicians specialized tice to who have in the field of internal (¶ 31); and medicine” (3) duty provide plaintiff prac- Ferrer had the with the “standards of applicable physicians specializing tice in the field of internal medicine nephrology” (¶ 35). Weymers 657 Khera v

Opinion of the Court injury which formed the basis of the from the Dacon, supra at pain suffering. (conclud- and See 330 . . . pleadings “alleg[e] everything ing . . . proper are not under MCR allege nothing [and] [] plaintiffs pulmo- unlike claim for 2.111”). Moreover, nary injury, plaintiffs defendants were on notice of kidney for from her suffering resulting claim specifically para- alleged failure because complaint injury 29 of her that she suffered graph kidneys. injury in pulmonary The mention of arguable complaint was in the sections plaintiffs addressing Dr. Khera’s and Walled Lake Medical defendants breach of the standard of care: alleged Center’s appropriate Dr. to obtain Failure consultations [of Khera] timely manner, including nephrology a in a consult and a pulmonary consult. [¶ 32.][23] Kimberly

Failure Walled Lake Medical to refer [of Center] Weymers appropriate light consultation of her history, presenting signs symptoms, including [sic] internist, nephrolo pulmonologist an consultation with gist. [¶ 28.][24]

We conclude that the trial court did not abuse its injury in ruling pulmonary discretion that this hint of 23 diluted, however, significance allegation of this was because the injuries paragraph par next stated that suffered the mentioned in kidney proxi agraph (which damage) 29 of the discusses as a ¶ mate cause of the breach. See 33. paragraph discussing alleged We note that the defendant Dr. Ferrer’s kidney duty suggests breach of that the suffered was failure: timely perform kidney biopsy, promptly result- Failure to delay

ing proper management in a in the of Plaintiff’s condition. [¶ 36.] put Thus, was insufficient to defendants on notice.25 the trial court’s determination that claim for pulmonary injury sufficiently pleaded' was not not an abuse of discretion.

D We next address whether the trial court abused its refusing discretion in to allow to amend her suffering to include a claim for pulmonary injury. from her summary grants disposition pursuant

If a court to 2.116(C)(8), (9), (10), give MCR the court must parties pleadings an to amend their pursuant 2.118, to MCR unless the amendment would 2.116(I)(5). 2.118(A)(2) provides be futile. MCR MCR freely pleading given that leave to amend a “shall be justice requires.” A(3), when so Under subrule party amending compensate court can order the to party opposing expense the by for the additional caused attorney including amendment, the late reasonable fees. ordinarily granted,

A motion to amend should be following particu- and should be denied for the larized reasons:

part “[1] amendments opposing of the undue movant, delay, party by previously ^{[3] [2]} repeated bad faith or virtue of allowance allowed, failure to cure deficiencies dilatory ^[4] undue of the amend- motive on the prejudice [Fyke, supra ment, futility . . . .” at [and 5] 656.] reasons, plaintiff’s argument pulmonary For similar that her claim for sufficiently alleged Goodpasture’s syn because the nature of pulmonary kidney hemorrhage damage drome is that it results in unpersuasive. repeating complaint alleging It should not need that a mal practice specificity certainty must state with reasonable the facts nec essary Dacon, supra to establish the cause of action. See at 332-333.

If a trial court denies a motion amend, it should specifically state on the record the reasons for its decision. Id. at 656-657.

Delay, alone, does not warrant denial of a motion supra to amend. Fyke, However, at 663-664. a court may deny a delay motion to amend if the was in bad faith or if the opposing party suffered actual prejudice “Prejudice” as a Id. result. in this context does not mean that proffered the allowance of the may amendment cause the opposing party to ulti- mately lose on the Rather, merits. Id. at 657. “prejudice” exists if prevent the amendment would party the opposing trial, from a fair if receiving example, opposing party would not be able to properly contest the matter raised the amendment important because witnesses necessary have died or evidence has destroyed been or lost. Id. at 663.

In Fyke, we suggested may there be some cases in delay which the is so long and the amend- ment so substantial that party the opposing would be by denied a fair delay, trial and therefore be prejudiced: litigation may proceed point opposing to a where the

party reasonably expected cannot against be to defend amendment; especially pertinent this anis factor on the eve of, during, or after trial. [Id.] We reaffirm principle, clarify application. this but its may We hold that a trial prejudice court find when the moving party seeks to add a new claim or a new theory recovery on the basis of the same set of facts, after discovery just is closed, trial, before the opposing party shows that he did not have rea- notice, any sonable from source, that the moving 660 454 Mich 639 theory party rely would on the new claim or at trial.26 recognize parties We to be afforded ought great trial, latitude in their before how- amending pleading ever, par- interest must be weighed against public’s speedy ties’ and the interest in the resolution disputes. Coffey As John L. of the United Judge Appeals States Court of the Seventh Circuit explained: 15[27)

While R Fed Civ P favors amendments when required by justice, it is not license for carelessness or gamesmanship. litigation Parties have an in interest speedy disputes expense. resolution of their without undue just Substantive amendments to the before trial only are not to be countenanced and serve to defeat these 26 requirements We note the distinction between the strict for amend 2.118(C)(2) ment at trial of MCR and the free amendment rule of MCR 2.118(A)(2). However, 2.118(A)(2) MCR is not limitless. Under MCR 2.118(A)(2), proposed granted party amendment should be unless the opposing particularized the amendment shows that one of the five rea specified Fyke, supra 656, prejudice, sons at which includes exists. 27 1963, 1963, adop MCR 2.118 is based on GCR 118. GCR 118 “is an Cooper, 401, 405; tion of Federal Rule 15.” LaBar v 376 Mich 137 NW2d (1965). Further, guided by precedent this Court has been federal Fyke, supra 15(a) this area See at 656. Rule of the Federal Rules of Civil provides, part: Procedure in relevant party may party’s only pleading by amend the leave of court [A] by party; freely or written consent of the adverse and leave shall be justice

given requires. when so Furthermore, permitted deny federal courts are a motion to amend a pleading particularized Fyke, if one of the five reasons stated in supra Davis, 178, 182; 227; at exists. See Foman v 371 US S Ct L (1962): Ed 2d any apparent In the absence of or declared reason —such as delay, dilatory part movant,

undue repeated bad faith or motive on the of the by previously failure to cure deficiencies amendments allowed, prejudice opposing party under to the virtue of allow- futility amendment, amendment, ance of the of etc.—the leave sought should, require, “freely given.” as the rules be 1997] harm when The district court must consider the

interests. grant deciding whether to leave. obviously require will additional a new claim

Defense of discovery, probability new wit in all interview of rounds of evidence, nesses, gathering and the identification of further necessarily appropriate legal arguments. All this takes preparation parties have an time. The must delay meaningful of trial if be and clear. Some trial is to consequence allowing natural therefore is inevitable —a delay sense, brought In this alone is not claims to be at all. refusing an On the other a sufficient basis for amendment. may require hand, the time set for trial amendments near postponement allegations made earlier when the same delay. ample prepare without would have afforded time to by impede justice imposing even Plaintiff is not entitled to Abudu, preparation Cf. v intervals seriatim. Ins reasonable 904, 913; (1988) 94, L 2d 90 108 S Ct 99 Ed US [485 public bringing litigation (“strong in to a close as interest promptly giving with the interest as is consistent develop present their fair adversaries a respective cases”). from bad faith or Whether it results may absentmindedness, judge act to deter a district mere protraction litigation, to all and its costs such artificial Corp concerned, denying amendment. Zenith Radio 795; Research, Inc], [321], 401 US S Ct Hazeltine [91 [v Ind], City Chicago, (1971)]; 28 L Ed 2d 77 Bohen East [v Allegheny 7, [1180], [(CA 1986)]. v F2d 1184-1185 [Feldman 7, 'l, Inc, 1217, (CA 1988).] F2d 1225-1226 Int for the Sixth Cir- Appeals States Court of The United Edelman, 883 F2d explained Priddy v cuit further (CA 6, 1989): 446-447 discovery party wait until the cutoff A is not entitled to summary judgment passed has a motion for date has original claims asserted in the been filed on the basis of entirely legal introducing different theo- before complaint. complex ... In cases such in an amended ries likely one, particularly that drastic amend- as this ... it is prejudice . . . will the defendants. ments on the eve of trial 662 454 Mich 639 op Opinion the Court expense Putting “through the defendants the time and theory, possibility litigation a new continued on with the manifestly unduly discovery, additional would be unfair and prejudicial.” [Citations omitted.][28]

E Turning Court, plaintiff to the case now before this attempted to amend 29 of her paragraph add the following subparagraph: Physical pain suffering resulting and mental from the pulmonary

aggravation pathology. of the opposed motion, they Defendants that asserting prejudiced by would be the amendment because pulmonary was her claim for introducing just for the first time before trial was sched- begin. uled to The trial court denied plaintiffs motion, on focusing length delay of the and on defend- plaintiff’s ants’ lack of notice of new claim: The Court is satisfied that this is a 1991 case. The general Defendants damage did not have notice that the ele- specific suffering damages ment of to the aris- pulmonary ing pathology. prepared out of Defendants for prepared mediation, trial and the Defendants the Court satisfied, despite due to the loss of renal function. And contentions, the Plaintiffs the Court’s satisfied that the [sic] Complaint, Motion for Amendment of the Second Amended Complaint, denied, should be I and do so.

The Court Appeals reversed the decision of the court, trial holding that it abused its discretion in 28 Aerospace Workers, See also Acri v Int’l Ass’n Machinists & Corp, Stein v United (CA 1986); Artists F2d 1393, 9, 691 F2d 885, 1982); Addington Co, v Farmer’s Elevator Mut Ins (CA 650 F2d 9, (CA 1981). 666-667 5, Weymers v Khera

denying plaintiffs motion to amend because the evi- dence established that defendants “had notice of potential pulmonary complications and thus would unduly prejudiced not have been . . . 210 App doing Appeals rejected so, 241. In the Court of plaintiff’s argument defendants’ amendment theory sought to add a new to the case. Id. at 242. Contrary Appeals to the Court of assertion, we hold amendment did seek to introduce a theory new or claim into the case and that defendants did not have reasonable notice that would rely theory on that new at trial. argues sought

Plaintiff that her amendment to change type damages sought, the of not add a differ- theory ent claim or case, that, to the therefore, App on the basis of Stevens, Sherrard v 176 654; 440 NW2d 2 (1988), she was entitled to the supra In Sherrard, amendment. at 655, the Court of Appeals held: shortly While we note that the amendment came before

trial, we also note that the amendment did not raise new allegations, merely types factual but claimed new of dam- ages arising allegations. from the same set of factual Accordingly, we do not believe that the trial court abused granting its discretion the motion to amend the complaint. argument unpersuasive

Plaintiff’s is because her case distinguishable is from In Sherrard, Sherrard. plaintiffs sought legal malpractice to amend their complaint prayer exemplary damages. to add Weymers, sought Plaintiff on the hand, other to type injury change amend her of she proximately negli- claimed was caused defendants’ 454 Mich 639 Opinion Court gence.29 Therefore, plaintiffs amendment is more appropriately characterized as a new claim or raising theory, a new type damages.

Plaintiffs argument that defendants had reasonable pulmonary notice of unpersuasive. claim is also deposition Although testimony,30 medical records,31 29Thus, plaintiff’s requested change amendment the court to two of the malpractice proximate injury. four elements of her cause and action — proximate by chang Plaintiff would have to reestablish the cause element ing interdependent. element because the elements are In other words, required prove injury, must, by if a a new she defini tion, proximate cause. reestablish questioning plaintiff’s expert witness, Neilson, Defendants’ Dr. Eric knowledge Goodpasture’s syndrome is illustrative of their attacks the lungs lung damage: and that suffered Doctor, Goodpasture’s Q. I’d like to talk a little bit about what syndrome my understanding is. It’s it’s an autoimmune disorder by antiglomerular characterized antibodies which attack the base- lung kidney; ment membranes of the would that be correct? A. Yes. diagnosis Goodpasture’s . .Q. . The is differentiated between system other diseases which attack —attack the renal in that it lungs kidneys; manifests itself both in the and in the correct? Yes, groups A. lung there are of diseases that affect both the kidneys; simply that’s one of them.

[*] ^{[**] [*]} Doctor, [plaintiffs] lung Q. is there evidence that her hemor- rhage got dependent; worse because she became ventilator is that the evidence? No, lung hemorrhage profound A. I think her became more very because she was in the middle of a active disease it .and wasn’t treated. Okay. asking Q. I am not if the ventilator caused or contributed lung hemorrhage, to the I want to know what evidence there inis lung hemorrhage got the chart that the worse from the . . . time x-rays A. Her chest looked worse and the fact she was not able suggested great difficulty to doing ventilate herself she had in it on her own. 31 instance, acknowledged plaintiff’s pulmo For defendant Dr. Khera in nary discharge summary patient up being respira that ended “[t]he on a Also, plaintiff’s . . . .” Hospi- tor medical records from William Beaumont summary32 suggested that defend-

and the mediation Goodpasture’s syndrome had knowledge ants injury plaintiff and that suffered pulmonary causes plaintiff had injury, defendants no notice such pulmonary injury for to assert claim intending was is If defendants significant. at trial.33 This distinction was to assert an intending had no notice that injury, the brief independent pulmonary claim for pulmonary injury during discovery mention of reasonably automatically said to process cannot be appearance nonprejudicial later as a claim make its Given the wide of the dis- against defendants. latitude covery MCR as far as defendants rules, 2.302(B), see concerned, sporadic pulmonary were mention of discovery simply could have been during fortuitous. Hoekwater, also relies on Terhaar v

Plaintiff App 747, 752; (1990), support 452 NW2d 905 in of her contention that defendants had reasonable pulmonary injury. Plaintiff’s notice of her claim Terhaar, is because in misguided reliance on Terhaar us, case now before unlike the theory pursued during her new dis- investigated respirator respira- plaintiff was for two weeks: "For the tal state that on 26, tory failure, patient being in ventilated from Oct. 1990 Beaumont Hospital Nov. 1990.” summary Goodpasture’s syndrome states that is Plaintiffs mediation lungs of diseases which attacks the believed to be a combination kidneys. fact, response interrogatory requesting In to defendants’ causally alleged negligence specifically “state detail how injury,” plaintiff replied: related to the Syndrome Early diagnosis Pasture would have of Good [sic] prevented therapy and would have resulted in earlier initiation kidney complete destruction of function. 454 Mich 639 covery, she also notified the defendant discov- during ery pursue theory that she would that at trial.34

Therefore, we conclude that the trial court did not abuse its in denying plaintiffs discretion motion to amend because the sought amendment to introduce a just new claim trial, discovery before after had closed, they and defendants demonstrated that did not have that knowledge plaintiff was intending to rely on the new claim at trial.

CONCLUSION We conclude that Michigan does not recognize cause of action for the loss an opportunity to avoid plaintiff initially brought malpractice The in Terhaar a medical action, alleging “negligent during that the defendant was a wisdom tooth allegedly paresthesia, numbness, extraction which resulted in to her jaw.” However, during discovery, parties investigated Id. at 749. both properly whether the defendant had advised the before the possible complications. extraction of Id. The also indicated in her summary pursue theory mediation that “she would of lack of informed Furthermore, plaintiff’s complaint suggested consent.” Id. initial even pursuing theory: that she would be 6, 1984, duty “On November Defendant breached his to Plaintiff guilty following careless, negligent,

and was of one or more of the improper acts and/or omissions:

[*] ^{[**] [*]} “(f) examine, evaluate, Failure to treat and advise Plaintiff as any reasonably prudent careful and dentist in the same situation.” [Terhaar, supra at 749.] fact, Appeals In the Court of held that would not have been “[defendant prejudiced by generalized the amendment because he had notice of the allegation inadequate seven, paragraph plain- (f) advice in subsection original complaint.” tiff’s at Id. 752. plaintiff sought theory to amend her to add the of lack of just plaintiff’s informed consent motion, before trial. The trial court denied the Appeals reversed, holding and the Court of that the defendant had reasonable notice of the lack of informed consent claim. Id. at 752.

Opinion Kelly, J. physical Thus, less than death. the trial court harm summary disposition properly granted defendants’ We further conclude that the trial court did motion. determining not abuse its discretion sufficiently plead a and suffer- did not claim for pulmonary injury. ing The trial court also did from denying in motion not abuse its discretion pul- claim for amend her to add new to monary injury. Accordingly, Court of we reverse the Appeals decision. JJ., con-

Mallett, C.J., and Brickley Weaver, J. Riley, curred with only in the result.

Boyle, J., concurred part dissenting (concurring in Kelly, J.. majority opinion. part). agree part II the I with finding trial court did not abuse its discretion plaintiffs’ complaint inadequately first amended noti- plaintiffs damages pul- sought fied defendants that for monary injuries. Moreover, the trial court did not denying plaintiffs’ abuse its discretion in motion to respect- I However, amend because of its late date. fully respect part majority dissent with to I of the opinion. recognize I would a cause of action for the opportunity physical an loss of to avoid harm less than death.

Generally, alleging malprac- in an action medical proving the has burden four ele- tice, the applicable (2) (1) care, ments: standard of the injury, (3) standard, breach of that an defendant’s proximate (4) causation between the breach and injury. 27A.2912(1); 600.2912a; MCL MSA Locke v (1994). Pachtman, 216, 222; 446 Mich 521 NW2d 786 requires proof separate cause of two ele- Proximate 454 Mich 639 Opinion by Kelly, J. legal (1) (2) Skinner v in fact and cause. ments: cause Square NW2d 475 153, 162-163; 445 Mich Co,D Moning (1994); 425, 437; Alfono, v Generally, (1977). the cause- to establish NW2d 759 that, but for the element, in-fact must show not have action, would defendant’s supra Skinner, at 163. occurred. adopted by opportunity this doctrine,

The lost wrongful death in Falcon v Memorial Court for cases exception provides general an to the rule of Hosp,1 malpractice proving in medical actions. causation According damages doctrine, are recoverable though survive, even the lost fifty percent. less than Id. at 461 J.). A must show that there is a (Levin, possibility negligence substantial that the defendant’s injury. Id. at caused the 469. adoption reasons have been advanced for

Several First, of because medicine is an inexact the doctrine. easily questions regarding are science, causation not physician’s especially answered, where a failure to act responsible alleged Falcon, is supra to be the harm. J.). at 455 Fundamental fairness dictates (Levin, uncertainty imposed be tortfeasor, that the on the not patient. on As one has the commentator stated: conduct, But for the defendant’s tortious it would not necessary grapple imponderables have with of been chance. Fate would have run its course. A defendant’s tort only destroys destroys ticket,” doing not a “raffle in it so any knowing chance of ever how that ticket would have drawing. [King, Causation, valuation, fared in personal involving preexisting in con- chance torts 443; (1990). 436 Mich 462 NW2d Weymers v Khera Opinion by Kelly, J. consequences, 90 Yale L J ditions and future (1981).] doctor-patient relationship

Second, the should be physicians taken into account. Patients retain only injury, to cure disease or heal but also to maxi- recovery assuage and to their mize their chance pain suffering. supra J.). Falcon, at 459 (Levin, helps physi- doctrine ensure The lost gross negligence negligence cians are liable for or deprives patients their of less than an even obtaining chance of a better result. Appeals as

Third, stated, the Court of where the recovery fifty percent less, chance of the tradi- tional rule undermines the loss allocations and deter- functions of law. rent tort

If lost doctrine is limited to cases involving death, potentially flagrant examples malprac- go uncompensated tice could cases which the same diagnose oppor- negligent failure in a or treat results lost tunity paralysis egregious harm, i.e., to avoid or coma. Thus, deterrent and loss-allocation functions of tort law liability escape would be undermined if defendants could negligent for the effects of conduct that cause demonstra- App 231, 237; (1995).] ble losses. 533 NW2d 334 [210 application It is of real concern that the of traditional concepts proximate may unjustly deny legal cause patients injured by physician’s recourse to negligence. majority importance acknowledges of the law.

deterrent and loss-allocation functions tort jettison However, it refuses to the element of causa- opportunity’s gain in the lost deterrent tion order Falcon, effect. In Justice Levin remarked that causa- 670 454 Mich 639 J.

Opinion by Kelly, are not discarded where principles tion than the ultimate the lost chance rather viewed as more-probable- A must still establish harm. that, than-npt proven It must be more causation. oppor- not, the defendant reduced the probably than 462. tunity Falcon, supra harm. at avoiding recently Supreme Court discarded what it The Ohio traditionally adopted view” and proclaimed “the harsh theory. Roberts v Ohio Permanente the loss-of-chance 668 NE2d Group, Inc, 483, 488; 76 Ohio St 3d Medical It reasoned: (1996).2 profes- patient A medical assistance from a who seeks expect proper caregiver right sional has the care and compensated any injury by should be caused caregiver’s negligence which has reduced his or her chance years, technology of survival. Over the medical has improved treatment and advances have been made many medicine, including However, areas of cancer. these early meaningless are detection is medical strides unless practiced Thus, diligently those the health care field. liability provider health care should not be insulated from expert testimony showing where there is medical that he or patient’s she reduced the chances of survival. Unfortu- nately, view, precisely under the traditional this is the out- patient come. The innocent is the loser while the health provider escapes liability despite negligence. care his or her policy reasons behind the lost doc- apply equally trine to fatal and nonfatal cases. Patients seek treatment from doctors for maladies In potentially other than fatal diseases.3 both fatal and contrary doing so, previous position In the Ohio court overruled its Cooper Charity Cincinnati, Inc, taken in v Sisters Ohio St 2d 242; (1971). 272 NE2d 97 Humberger, 127; (1985), In Aasheim v 215 Mont 695 P2d 824 plaintiff alleged negligence the defendant’s resulted in the Opinion by Kelly, J. cases, patient improve seeks to

nonfatal opportunity of or “avoiding, ameliorating, reducing Falcon, supra physical harm and and suffering.” (Levin, J.). at 461 majority explain why

The fails to the doctrine is proper occurs, if death but if a lesser Supreme involved. It cites Texas and South Carolina support Court cases in of the that tradi- argument tional notions of causation should not be discarded. Hosp, Kramer v Lewisville Memorial 858 SW2d 397 Owings, Jones v (Tex, 72; 318 SC 456 SE2d 1993); (1995). However, both cases focused on whether opportunity apply the lost doctrine should where They death is the ultimate result. did not discuss whether, opportunity applies, once the lost doctrine it limited should be to death cases. jurisdictions adopted

Other have a cause of action opportunity physical for the loss of an avoid harm Humberger, less than death. In Aasheim v plain medically tiff physician consulted with the defendant problems in her left regarding knee. The defendant x-rays. failed to order diagnosed The with chondromalacia. After the condition of her knee improve, did not she was physi referred another arthroscopic Preoperative x-ray cian for films surgery. giant Physi revealed cell tumor the left knee. cians had to along remove the infection with all the given bone and soft tissue the knee area. She was prosthetic knee.

losing surgery preserve a chance at less radical and a chance to her natu- ral knee. 4 Aasheim, supra. n 3 454 Mich 639 J. Opinion Kelly, diagnostic failure to order filed suit for lose the error caused her to films. She alleged preserve surgery have less radical the chance to Supreme The Montana Court stated: her natural knee. causality including within “loss of chance” We feel negligence recognizes liti the realities inherent in medical People are diseased or gation. who seek medical treatment properly injured. diagnose Failure to treat denies Including this lost to recover. causality gives recognition to a real loss within the embrace consequence [Aasheim, supra failure. at of medical 133.] Sipes,5 In an action Ehlinger parents brought v physician injuries arising pre- a from the against They failure alleged mature birth of their twins. that multiple to was a substantial diagnose pregnancies injuries. that, causing physician argued factor the satisfy issue, their burden on the causation the to plaintiffs that, proper diagnosis had to show with appropriate treatment, probably (1) more than not the injuries, (2) twins would not have suffered their or injuries the would have been less severe. The Wiscon- Supreme rejected stating: sin Court the argument, disagree Ehlingers

We to the that establish causation proper diagnosis must show that and treatment would have nature, We conclude in a case of this been successful. relationship the causal between the defendant’s where only alleged negligence plaintiff’s and the harm can be plaintiff’s surmising inferred as to what the condition ordinary would have had the defendant exercised been care, satisfy production his or her on causa- to burden of (cid:127) tion, the need show that the omitted treatment prevent very type harm which was intended to the resulted, the would have submitted to the (1990). 155 Wis 2d 454 NW2d 754 1;

Opinion by J. Kelly, probable treatment, and that it is more than not the treat- plaintiff’s injury ment have or could lessened avoided the had it then been rendered. It is for the trier of fact to deter- negligence mine the a whether defendant’s substantial causing (emphasis factor in harm. at 13-14 [Id. original).] In v Delaney Supreme Cade6 the Kansas Court con- sidered recognizing cause of action for the loss aof chance of a better recovery as contrasted with lost chance survive. reviewing policy After arguments relating to the lost chance doctrine, court found that the lost recovery chance of a better stated cause of legitimate action. It stated: authority We have found no argument or rational which apply theory would solely the loss of chance to survival recovery actions or loss of a better actions not to by plaintiff both. As certainly noted brief: “There is nothing justify leaving in that rationale to [Roberson] open persons paralysis, organ season on loss, who suffer other protecting only serious short of death while those negligence.” who do not survive the acknowledge majority

We that the vast of cases we have patient reviewed involved death of the and a loss chance recognize apportionment survival. We also that the may damages recovery be more difficult in a loss of a better case resulting However, than in the cases in death. the fact patient that most cases have involved of death the and that may damages be difficult to in a of resolve loss a better recovery grounds case should not be recognize to to refuse the malpractice substantially doctrine when medical has person’s recovery. reduced a chance of a better at [Id. 210.] acknowledged jurisdictions court that several have refused to recognize the loss of chance doctrine (1994). 255 Kan 873 P2d 175 199; 454 by

Dissenting Opinion Cavanagh, J. jurisdic- type However, no it found in either of case. theory type applied in one of case which the tion juris- most The court found that denied it in the other. simply to had not had occasion Kansas, like dictions, doctrine in both situations. address the Supreme reasoning agree of Kansas I with the the underlying Considering policy arguments the Court. no doctrine, there is rational the lost distinguishing cases and between death basis for physician negligence has which limited cases in reasoning recovery. Consequently, I would the extend in to nonfatal cases. of our decision Falcon analysis agree (dissenting). I the J. with Cavanagh, recognize of a cause action of the dissent would physical opportunity to harm for the of an avoid loss part n However, I also dissent from less than death. majority opinion, which holds that the trial court plaintiffs denying abuse its did not discretion complaint. Appeals motion amend The Court holding this that it issue, reversed the trial court on denying plaintiffs motion abused its discretion physi- allegation to add an to amend suffering aggrava- cal mental from pulmonary pathology. tion of the Appeals aptly so stated in its As the Court of opinion: summary disposition grounded a motion for is on

Where required give 2.116(C)(10), court MCR the trial provided parties pleadings their as an to amend 2.118, be futile. MCR unless the amendment would MCR freely provides be 2.118(A)(2) leave to amend shall given justice requires. pertaining when so The rules to the designed pleadings amend- are to facilitate amendment party except prejudice opposing when to the would ment Dissenting by Opinion Cavanagh, J. generally right result Amendment is matter of rather than ordinarily grace. granted; A motion to amend should be particularized reasons, denial should be for such as delay, dilatory faith, motive, repeated undue bad failure to deficiency by previously allowed, cure amendments undue prejudice futility. opposing party, to the case,

In the trial stated: this court is this “The Court satisfied that is a 1991 case. The general damage Defendant did not have that the notice ele- specific pain suffering damages ment of and was to the aris- pulmonary pathology. ing prepared out of Defendants for mediation, prepared trial and the Defendants the Court satisfied, despite is due to the loss renal And function. contentions, the Plaintiffs the Court’s that satisfied the . Complaint, Motion for Amendment of the Second Amended Complaint, denied, I should be and do so.”

However, plaintiff summary stated in her mediation that damages “probability pulmonary her included the that dam- ages have would been minimized such that mechanical ven- respiratory therapy tilation and extensive would have necessary.” alleged original been Plaintiff also in both her complaint 23, 1990, and first amended on October she symp- went to defendant Walled Lake Medical Center with “bloody tom, among others, sputum cough,” with that she subsequently hospital was admitted to defendant by Khera, examined defendant and that defendant Khera timely pulmonary failed to obtain a consultation. Defend- depositions ants Khera Ferrer both testified in their Goodpasture’s Syndrome lungs affects the and that they pulmonary problems. having observed Plaintiff subsequently placed respirator. aon These facts indi- potential pulmonary cate that defendants had notice of complications unduly and thus would not have been prejudiced allowing to amend her allege damages suffering that her included from pulmonary aggravation. Because the amendment would not prejudiced defendants, have this mere fact that case deny originated in 1991 is an insufficient reason to leave to amend. 454

Dissenting by Cavanagh, Opinion J. Transue, 315; 441 Mich argue that Dacon v Defendants point. Supreme Dacon, (1992), on In our 490 NW2d upheld to amend of the motion Court the denial plaintiff sought However, complaint. that case theory malpractice. had medical add a new theory developed on the the alleged and case prescribed medicine, wrong and not until defendants theory alleging that the defend- trial did she seek to add delayed treating medicating negligently her. ants had case, plaintiff However, distinguishable. In this Dacon is plaintiff’s Moreover, sought the amendment before trial. theory pulmonary damage original from her arises claim of timely diagnose negligently to failed that defendants Goodpasture’s Syndrome. treat her allowing might Thus, although have the amendment trial, it would not have denied affected the result of Accordingly, the abused a fair trial. trial court defendants denying plaintiff’s its motion to amend. We discretion the trial denial of motion amend reverse court’s remand, complaint. her On is to be allowed to allegation to add an and suf- amend App 231, relating pulmonary damage. fering [210 240-242; (1995) (citations omitted).] 533 NW2d 334 analysis Appeals, I with of the Court of agree also. and I would its decision on this issue affirm

Case Details

Case Name: Weymers v. Khera

Court Name: Michigan Supreme Court

Date Published: Jun 17, 1997

Citation: 563 N.W.2d 647

Docket Number: 102961, Calendar No. 6

Court Abbreviation: Mich.