*1 System Oakwood Healthcare 53 WICKENSv OAKWOODHEALTHCARESYSTEM Argued 8, (Calendar 11). Docket No. 117731. March 2001 No. Decided July 24, Rehearing post, 2001. denied 1204. Sandra J. Wickens and her husband Appeals, granted facilities and Mich Circuit Court diagnose App the defendants’ Hood, and treat her cancer. The 385 doctors, alleging (2000) (Docket 221927). against P.J., and Oakland Healthcare pretrial Sawyer motion for dismissal. The Court of and brought court, Cavanagh, The defendants malpractice an Edward M. action JJ., and affiliated reversed. [242] in appeal. Thomas, J., failing Wayne to opinion by joined by In an Justice Chief Justice Young, Corrigan, Supreme and Justices Taylor and Court held: Markman, In an action 500.2912a(2), living for under MCL person may opportunity survive; not recover for loss of an to there- fore, plaintiffs’ claim is barred to the extent that it is based on opportunity. that loss of dismissing The trial court erred in entirety case in its because she made additional claims independent that are of her claim for loss of an survive. 500.2912a(2) expressly recovery 1. MCL limits already have been suffered and more than not were malpractice. Thus, plaintiff the defendant’s can recover injury, potential not a future That the long-term chances of survival decreased is evidence of a injury, death, injury already which is not an suf- required fered as the statute. A loss of an to survive clearly already claim is limited to situations where death has occurred. alleged 2. The negligent also that the defendants’ one-
year delay diagnosing past her breast cancer caused and future damages, including treatments, the need for more invasive medical trauma, suffering. damages emotional Because those premised upon long-term are not her decreased chances of survival suffered, and have the trial court should not have dis- plaintiffs’ entirety. missed the case in its part, part, Reversed in vacated in and remanded. 465 Mich Court joined by Justices concur- Weaver Justice Cavanagh, Kelly, person may part dissenting part,
ring in stated that a oppor- expectancy not recover for a reduction in life as a loss of survive, expectancy tunity but recover for reduced life recovery of an to achieve a better result. The a loss *2 plaintiffs potential death, the latter claim is not based on the damages already However, suffered. but is limited to the emotional opportunity recover for a loss of either an to survive or achieve result, opportunity, any malpractice, a better absent must have fifty percent malprac- greater than to ensure tice more than not caused the Lopatin, Miller, Freedman, Bluestone, & Herskovic (by Domol Barbara H. Goldman and Richard E. plaintiffs-appellees. Shaw) for the Tanoury, Willmarth, Ramar, Corbet, Garves & Anthony (by Paradiso, Sokol, Shaw Elizabeth L. Corbet) defendants-appellants. R. Daniel for the Amici Curiae: Dunlap, (by &
Fraser, Trebilcock, Davis PC. Crabtree), Graham K. for ProNational Insurance Company Company. and MHAInsurance J. The trial court directed a verdict in this Young, in favor case defendants’ on the basis that claim was barred MCL 600.2912a(2), precludes recovery which for “loss of an “opportunity to survive” unless the ” living person We that a 50%. hold an survive, recover for loss of claim is therefore barred to the extent opportunity. that it is based on such loss We fur- ther hold that the trial court nevertheless erred in dis- missing plaintiff’s entirety,
case its because she has independent made additional claims that are of her claim for loss of an to survive. Accord- 2001] Oakwood Healthcare Court of the ingly, part part opin- we reverse and vacate in ion of the Court remand this matter to proceedings the trial for court further consistent with opinion. this proceedings
I. PACTS and System operates Defendant Oakwood Healthcare outpatient medical clinic where Sandra Christopher Wickens1consulted Dr. defendant Pabian lump regarding right in her breast. Dr. Pabian mammogram referred that Oakwood personnel interpreted April administered and 1995. interpreter reported breast tissue had they abnormalities, but that were not cause alarm plaintiffs age, forty-eight, because of breast density. get repeat tissue She was told mam- mogram in six months. *3 get repeat
In 1995, November tried to the personnel mammogram, incorrectly but Oakwood pay told her that her insurance would not for a sec- mammogram ond within twelve months. Plaintiff waited the additional six months and had another mammogram May spot- interpreter in when 1996, the right ted a biopsy. in mass the and breast recommended a biopsy, performed two later, weeks malignancy. revealed a May mastectomy 29,
On 1996, underwent a right adjacent lymph to remove her breast the malignant lump nodes. The in her measured breast about six in centimeters diameter. Nine the thir- of lymph malignant teen nodes tissue, contained indicat- 1 Plaintiff David Wickens’ claim in is derivative nature. the sake of For simplicity, “plaintiff.” we refer Sandra Wickens as of Court probability that the cancer had a substantial
ing chemother- postsurgery Plaintiff underwent spread. any to minimize chance apy and radiation treatments spreading. of about a January 1997, plaintiff consulted doctors
In Although malignancy in her left breast. no lump mastectomy a to remove detected, plaintiff underwent chemotherapy was followed with her left breast. That radiation treatments. malpractice Sep- suit in Plaintiff filed this medical delay in 1997, one-year diag- that alleging tember her cancer constituted medical nosing that mal- alleged defendants. She the defendants’ poorer prognosis had her to suffer a practice survival, qual- a in the long-term cure or reduction of ity expectancy, undergo life and life the need to of than radical intervention would have been nec- essary year earlier, suffering. Dr. parties deposed plaintiff’s expert, David Both Schapira Schapira, an Dr. testified oncologist. would lump plaintiff’s right breast most malignant likely have less than two centimeters measured plain- time fewer nine of April 1995; at that lymph three, one and nodes, tiff’s between cancer; been affected and that it would have appropriate treatment regarded was generally type a cancerous condition of that would consist therapy, and radiation rather than mas- lumpectomy Schapira, plain- tectomy. Moreover, according Dr. the 1996 probability diag- tiff’s after If percent. was fifteen breast cancer nosis would diagnosed April 1995, she have *4 had surviving ten seventy percent had a chance of (1) lymph node, or years if the cancer involved one 2001] Oakwood Healthcare
Opinion of the Court fifty-fivepercent (2) surviving chance if of ten lymph the cancer involved three nodes. On cross- Schapira opined examination, Dr. that can- likely lymph had cer affected two or three nodes in 1995. filed a
Defendants motion limine for a directed arguing according Schapira’s verdict, that to Dr. testi- plaintiff mony, requirements could not meet the 600.2912a(2). provides: 2912a(2) MCL Section alleging plaintiff malpractice, In an action medical has proving the burden of that he or she suffered an proximately neg- than not was ligence alleging of the defendant or defendants. In an action malpractice, cannot recover for loss of to survive or an to achieve greater better result unless the than 50%. argued Schapira’s testimony Defendants that Dr. any malpractice by showed that defendants reduced plaintiff’s probability years by forty surviving percent.2 Because defendants calculated only forty percent, they loss at contended that she prove therefore could not she lost fifty percent opportunity required by to survive, as 2912a(2). § agreed granted
The trial court defendants’ dismissing motion, entire case. holding
The Court of reversed, only requires that demonstrate negligent, that had the defendant not been there was forty percent by subtracting May Defendants arrived at 1996 ten- year percent April fifty-five survival rate of fifteen from the 1995 rate of percent, Schapira’s opinion given likely Dr. that the cancer affected had lymph two to three nodes in 1995. *5 58 465 Mich 53 Opinion of the Court fifty percent opportunity to survive.3 Additionally, the Court of held that 2912a(2) by presenting expert testimony satisfied § fifty-five seventy per- that she would have had a cent chance of if surviving her cancer had diagnosed April panel in 1995. The further ruled that the trial court should not have plain- dismissed entirety: tiffs case in its argue
Plaintiffs farther that the trial court erred proceed allowing that, this case to to trial on their claim as negligence, deprived a result of defendants’ Wickens was agree. for a better result. We Pursuant to 2.515, “party MCR move for a directed verdict at the opponent. close of the evidence offered The motion specific grounds support must state of the motion.” . . . Thus, dismissing plaintiffs’ the trial court erred in entire affording cause of action without Furthermore, their case at trial. the trial court’s plaintiffs’ dismissal of entire cause of action was erroneous merely plaintiffs’ because defendants discussed claim for loss of to survive in their motion for directed App verdict. Mich [242 393.] granted We application defendants’ for leave to appeal, parties directing to brief the issue whether a living bring can a cause of action for loss of an opportunity to survive when the claimed is a reduction in projected chances of long-term survival.4
3
App 385;
(2000).
242 Mich
Opinion of the Court
n. STANDARD OF REVIEW
Before trial, defendants filed a motion in limine for
directed verdict
dismiss
claims for loss
of an opportunity to survive
opportu-
and loss of an
nity to
better result. At the hearing on the
motion, however, defendants referred to the motion
motion for summary disposition,
“defendants[’]
directed verdict.” The trial court granted the motion
on
defendants,
the basis of
interpreta-
defendants’
*6
tion of 2912a(2). Because MCR
§
2.515 states that “[a]
party may move for a directed verdict at the close of
the
by
evidence offered
an opponent[,]” we find
defendants’
characterization
of the motion
as
directed verdict
pretrial
at
the
stage incorrect.
Motions
summary disposition
are brought at this
stage, and we therefore treat defendants’ motion as a
summary
motion for
disposition. This Court reviews a
trial court’s decision
grant summary
disposition de
novo. Sewell v
Schs,
Public
456
670,
Mich
Southfield
674;
m. ANALYSIS A. A LIVING PLAINTIFF MAY NOT RECOVER FOR
LOSS OF AN OPPORTUNITY TO SURVIVE
Plaintiff contends
that she can recover
for the
reduction in her chances of
by
survival caused
the
delayed diagnosis as a claim for
opportu-
loss of an
nity to survive under
2912a(2).
reject plaintiff’s
§
We
contention
that a living
may recover
Opinion op the Court
loss of an
to survive
under §
contrary
because it
Legislature’s intent,
is
to the
plain
evidenced
the statute’s
language.
paramount
statutory interpretation
rule of
is
that we are to effect
the intent of the Legislature.
Tryc v Michigan
Facility,
129,
Veterans’
451 Mich
135;
so,
NW2d 642
To do
we
with
(1996).
begin
the
language.
statute’s
If the statute’s
clear
language is
we
unambiguous,
Legislature
assume that
plain
intended its
meaning, and we enforce the stat-
ute as written. People Stone,
The trial court erred by application on the that it was barred ground case ten-year-survival-rate sta- 2912a(2). of subsection of avoid- say nothing tistics about chances suffered, she such as ing allegedly the other treatments caused the more invasive (1) the emotional one-year delay diagnosis, (2) in her unnecessarily worsened trauma attributable suffering condition, (3) physical unnecessarily physical worsened attributable to her *8 Opinion of the Court condition. Because of these alleged injuries, the trial court should not have dismissed case in its entirety on the basis of subsection 2912a(2).
In light of our determination that a living plaintiff may not recover for loss of an opportunity to survive and that pleaded a cause of action for her injuries from the more invasive procedures she incurred on account of the alleged negligent delay in diagnosis, it was unnecessary for the lower courts to have addressed whether had a cause of solely action on the basis of the reduction in her ten- year survival rate. Accordingly, we vacate that portion of the Appeals Court of opinion.
IV. CONCLUSION In light plain of the language MCL 600.2912a(2), which allows recovery only that have already been suffered, we conclude that a living plain- tiff not recover for loss of an opportunity to sur- vive on the basis of a decrease in her chances of long- term survival. We further conclude that, although plaintiff may not recover for loss of an opportunity to survive, the trial court improperly dismissed her remaining claims, which premised are not upon her decreased chances of long-term survival. Accordingly, we part reverse in part vacate in opinion Court of remand case to the trial court for further proceedings consistent with opinion. this Taylor C.J., and Markman, JJ., con-
Corrigan, curred with Young, J. Healthcare Oakwood
Opinion by Cavanagh, J. dissenting part (concurring Cavanagh, majority’s holding part). liv- that a I concur with the *9 opportu- may person ing recover for a loss of an plain language nity of MCL under the to survive majority, 600.2912a(2). holds that however, also plaintiffs expec- concerning reduced life the evidence potential tancy only future death. is relevant to plaintiff majority whether fails to address Thus, may injuries learn- for suffered as a result of recover expectancy ing life under the statute of her reduced opportunity to achieve a better result. as a loss of an person may living for I that a recover Because believe injuries learning of a reduction suffered as a result of opportunity expectancy as a loss of an to in life a better result and that the evidence concern- expectancy ing life is relevant to reduced injuries, respect- I whether defendant caused these fully dissent. she recover for her reduction
Plaintiff asserts expectancy loss of an in life as either a claim for opportunity to survive or loss of an 2912a(2). agree § I with achieve a better result under majority’s plain language reasoning that under the living person may 2912a(2), § a not recover However, the stat- loss of an to survive. provides claim, loss of an ute also for alternative Thus, I would to achieve better result. person may injuries living recover for conclude that learning of a reduction in life suffered as a result of expectancy that if there is evidence that claim, under probably than not caused the the defendant plaintiff injury. burden. I believe satisfied this expressly limits The first sentence of already recovery injuries suffered that have Mich 53 by Cavanagh, and more not were caused defen- malpractice. Thus, majority dant’s notes, plaintiff can injury, recover for a not for Although precludes this asserting opportu- from a claim loss of an for nity survive, it not preclude does from asserting a claim for loss of an opportunity to achieve majority a better result, as the contends. The statute injuries for recovery allows In suffered. case, injuries already this suffered are the were suffering, generated the knowledge years severely chances of decreased. Thus, plaintiff’s claim for such already suffered as a result of defendant’s malpractice satisfy would requirement, the first there be a *10 present injury. However, the correct claim for a is loss of an opportunity to a achieve better result. Plaintiff asserted a for of claim loss an a achieve better on result the basis of her life reduced expectancy. Therefore, question the next is whether summary disposition on this alternative claim was proper.
The second sentence of 2912a(2) § states that a plaintiff may not recover for a of an opportunity loss to survive or a achieve better result “unless the ” opportunity was greater than 50%. The statute is clear that the Legislature intended the word “opportu- nity” phrase in that to mean plain- a tiff had to survive or achieve a result, better absent any malpractice. Thus, clearly requires the statute premalpractice opportunity to survive or a better fifty percent result must exceed for a plaintiff to recover. v Oakwood Healthcare by Cavanagh, Schapira Dr. testified case, plaintiff’s expert
In this properly diagnosed, that, plaintiff’s had cancer would ten-year percentage survival rate her lowest plaintiff’s fifty-five percent. Regarding have been proce- injury of more invasive undergoing delayed Schapira diagno- Dr. testified that the dures, lymph nodes, spread cancer to to more sis caused the injury clearly is procedures. these This necessitating to defendant’s percent one hundred attributable delayed Thus, the evidence diagnosis. viewing submitted evi- plaintiff, most favorable to she light jury would allow a to conclude that her dence that a better result premalpractice opportunity to achieve fifty and, therefore, sum- percent, was mary improper. of that claim was disposition is what if question damages,
The next to address in life any, plaintiff recover reduction discussed, expectancy. opinion previously As this first limits a recov- sentence ery injuries already suffered and that were more than not malpractice. defendant’s Thus, plaintiff present injury, can recover for a injury Plaintiff’s more radical treatment having undergo is injury, and, thus, is recoverable under the statute as injury plaintiff suffered. The additional suf- fered as a result of was severely beyond her chance to live majority decreased. The asserts *11 premalpractice years, fifty- ten surviving chance percent case, five in this is irrelevant to whether the injuries suffered, i.e., pain and defendant caused the about the reduction suffering, learning result of only way disagree. in that chance of survival. I Opinion by Cavanagh, plaintiff’s secondary injury pain defendant caused suffering learning expec- and from of her reduced life tancy plaintiff’s primary injury, is if defendant caused plaintiff’s expectancy. the reduction in life The secon- dary injury, pain always suffering, will be one percent primary injury, hundred attributable to the pri- thus, we must make sure defendant caused the mary injury. probably To ensure defendant more than primary injury resulting not caused the and, thus, the secondary injury, plaintiff prove pri- must that the mary injury fifty greater percent meets the than supporting threshold. Evidence the assertion that negligence more than not injury plaintiff’s expert opined caused this was who timely plaintiff’s diagnose that defendant’s failure to plaintiff’s fifty-five percent breast cancer caused premalpractice years chance to live ten to decrease to percent. fifteen This evidence, which shows that had a better than even chance of years malpractice, supports before defendant’s a find- ing prob- that defendant, not cancer, ably than not caused the Plaintiff, therefore, jury submitted evidence that would allow a to con- premalpractice clude that her to pain suffering a better result, i.e., to avoid after learning expectancy, of her reduced life was fifty percent, summary disposi- and, therefore, improper. tion of that claim Thus, I would con- clude that the reduction in better than even chance to live ten is a recoverable under statute; however, the correct claim is for loss of to achieve a result, better suffering generated can recover for the *12 Oakwood Healthcare Opinion by Cavanagh, J. by knowledge chances of ten severely decreased.
CONCLUSION In light plain of the language of MCL I 600.2912a(2), would person may conclude that a living not recover expectancy reduction in life aas loss of an to survive, but recover for a reduced life expectancy as a loss of an opportunity to achieve a better recovery result. The for a reduction in life expectancy as a loss of an opportunity to better result claim is plaintiff’s not based on the death, but is limited to the emotional damages suffered. However, to recover loss of either an opportunity to survive or achieve a better result, the opportunity, any absent malpractice, must have been greater fifty percent to ensure than not caused the The Court of applied this interpretation and held that loss of to achieve a better result claim erroneously dismissed because she submitted that, evidence had properly defendants diagnosed her breast cancer, she would have fifty-five had at least a percent chance of surviving years. I would, there- fore, affirm the judgment of the Court of Appeals and remand case to the trial proceed- court for ings consistent with opinion. this JJ., concurred with
Weaver Kelly, Cavanagh,