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Michigan Supreme Court Fails to Clearly Decide Standards For "Lost-Opportunity" Cases

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Richard C. Kraus & Kirsten M. McNelly
Foster Swift Medical Malpractice E-News
July 29, 2008

In a much-anticipated case, the Michigan Supreme Court issued a decision with three separate opinions that does not clearly define the legal standards governing "lost-opportunity" medical malpractice cases.  While all seven Justices voted to affirm the Court of Appeals, no majority agreed as to the proper interpretation of MCL 600.2912a(2).  Because six Justices concluded that the plaintiff's claim was actually a traditional malpractice action and not a loss-of-opportunity case, the continued validity of Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002), is also unclear.  The Court also asked the Legislature to better articulate its intent regarding medical malpractice claims alleging only "lost-opportunity." Stone v Williamson, 2008 WL 2854124 (7/24/ 2008). 

In this case, the plaintiff suffered the rupture of an abdominal aortic aneurysm that had gone undetected despite physical examinations and testing by a number of physicians.  He underwent emergency surgery to repair the rupture, but later had both legs amputated at mid-thigh level.  Plaintiff sued and, at trial, presented expert testimony that a patient having elective surgery to repair an aneurysm has a 95% chance of surviving and avoiding additional complications but one whose aneurysm ruptures has only a 10% chance of such a result.  The defendants argued that (1) the risk of death should be factored out since it did not occur, and (2) the risk of complications other than death was 5-12% for elective surgery and up to 40% for emergency surgery.  The defendants asserted that the plaintiff only lost a 35% opportunity for a better result and the claim was therefore barred by MCL 600.2912a(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 achieve a better result unless the opportunity was greater than 50%.

Chief Justice Taylor, joined by Justices Corrigan and Young, concluded that the statute could not be enforced as written because the first and second sentences cannot be reconciled.  The first sentence requires a plaintiff to prove that the defendant proximately caused an "injury" while the second sentence permits recovery for a lost opportunity to achieve a better result which is not an "injury" according to their analysis.  The three Justices would not allow judicial enforcement of the second sentence of subsection 2 because doing so would require the Court to impose its own prerogative on an act of the Legislature. 

Justice Cavanagh, joined by Justices Weaver and Kelly, concurred with the result but not the interpretation. In their view, a lost opportunity is an "injury" and therefore, there was no conflict between the first and second sentences.  In order to recover, a plaintiff must show that the pre-malpractice opportunity for a better result was reduced by more than 50%.

In a separate opinion, Justice Markman agreed that the statute could be enforced.  In his view, the lost opportunity, not just the initial pre-malpractice opportunity, must be greater than 50%. 

The lack of a majority opinion leaves many questions unanswered, including the nature of a lost-opportunity case and the proofs required to establish such a case under MCL 600.2912(a)(2).  Unless the Legislature accepts the invitation to clarify the statute, lost-opportunity cases will continue to present difficult issues in the trial and appellate courts.