Falcon v. Memorial Hosp.
Decision Date | 16 August 1989 |
Docket Number | Docket No. 101586 |
Citation | 178 Mich.App. 17,443 N.W.2d 431 |
Parties | Ruby FALCON, Administratrix of the Estate of Nena J. Falcon, v. MEMORIAL HOSPITAL, a corporation. 178 Mich.App. 17, 443 N.W.2d 431 |
Court | Court of Appeal of Michigan — District of US |
[178 MICHAPP 18] Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Monica Farris Linkner, Detroit, for Ruby Falcon.
Plunkett & Cooney, P.C. by Robert G. Kamenec, Detroit, for Memorial Hosp.
[178 MICHAPP 19] Weipert, Morr & Weipert by Michael A. Weipert, Monroe, for S.N. Kelso, Jr., M.D.
Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Richard E. Eaton and Ann M. Cisco, Detroit, for Norma Denny.
Before HOLBROOK, P.J., and SAWYER and BATZER, * JJ.
Plaintiff appeals from an order of the circuit court granting summary disposition to defendants Memorial Hospital and Dr. S.N. Kelso, Jr., pursuant to MCR 2.116(C)(10) ( ). Additionally, third-party defendant Norma Denny cross appeals, challenging the trial court's order denying her motion to amend the pleadings to eliminate her as a third-party defendant. We reverse in both respects.
This matter, which has lingered in the court system for over fifteen years, arises from the death of plaintiff's decedent in March, 1973, from an amniotic fluid embolism following the otherwise normal birth of the decedent's child. Plaintiff alleges malpractice on the part of defendant doctor on the basis of the failure to have an "i.v." in place during the use of a spinal-block anesthesia. Briefly, plaintiff has experts willing to testify that an i.v. should have been in place prior to the administration of the anesthesia and that, had the i.v. been in place, there would have been a 37.5 percent probability that the decedent's life could have been saved when the embolism arose. Absent the i.v., plaintiff's experts opine that there was zero chance of saving the decedent.
Plaintiff commenced this action in August, 1973. The third-party complaint was filed against Denny, [178 MICHAPP 20] who was the attending nurse-anesthetist whose responsibility it was to monitor the patient while the patient was under the anesthetic. For reasons not apparent to us, trial did not commence until January 7, 1985. Part way through trial, the trial court granted a directed verdict in favor of defendants Memorial Hospital and Kelso, having ruled that plaintiff's experts were not qualified to testify and that plaintiff had therefore failed to present competent expert testimony as to the standard of care. The order granting the directed verdict also stated that the third-party complaint and cross-complaint were dismissed without costs.
Plaintiff appealed the directed verdict, but defendant hospital did not pursue a cross appeal of the dismissal of its claims against defendant Denny. This Court reversed, concluding that the trial court erred in granting a directed verdict in favor of defendants. Falcon v. Memorial Hosp, unpublished opinion per curiam, decided August 12, 1986 (Docket No. 83193).
On remand, defendants moved for summary disposition on the basis that plaintiff had insufficient evidence to raise a jury question on the issue of proximate cause. The trial court granted the motion, concluding that Michigan does not recognize the "value of lost chance" doctrine and that, under the wrongful death act, plaintiff would have to prove that the wrongful acts or omissions of the physician were the cause of the decedent's death and plaintiff could only prove that defendants caused her to lose a 37.5 percent chance at life, not that defendant's acts or omissions caused her death. We disagree.
At least for purposes of this appeal, the parties are in agreement as to the basic facts of this case: that plaintiff's decedent died during childbirth as a result of an amniotic fluid embolism, that plaintiff [178 MICHAPP 21] could offer expert testimony which would opine that the decedent would have had a 37.5 percent chance of survival had an i.v. been established prior to the administration of the anesthetic and that the standard of care requires the use of an i.v. in conjunction with the type of anesthetic administered to the decedent, and that no such i.v. had been in place, resulting in the decedent having zero chance of survival according to plaintiff's experts. Thus, the question for our consideration is whether the failure to establish the i.v., thus reducing the decedent's chance of survival from 37.5 percent to zero, could be found by a rational trier of fact to be a proximate cause of the decedent's death. We conclude that the trial court erred in granting summary disposition and that the issue of proximate cause should have been submitted to the jury.
First, although the parties in the trial court frame this case as being one involving the value of lost chance, we are not convinced that this case truly falls within that doctrine. Generally, the value of lost chance involves a situation where a physician fails to perform a particular treatment, often, though not necessarily, a result of a failure to timely achieve the proper diagnosis. See Vitale v. Reddy, 150 Mich.App. 492, 502, 389 N.W.2d 456 (1986), vacated on other grounds 430 Mich. 894, 425 N.W.2d 89 (1988). In the case at bar, the attending physician's alleged act of malpractice does not arise from the failure to pursue a particular treatment so much as it arises from the physician's failure to properly perform the procedure involved, the delivery of the baby while using a spinal-block anesthetic. In any event, the proper labeling of plaintiff's claim does not affect the legal analysis and we leave it for academicians to affix the label.
The question before us is whether, under Michigan[178 MICHAPP 22] law, a plaintiff in a medical malpractice case can establish proximate cause where the alleged act of malpractice involves an omission by the physician and the plaintiff can establish that, but for the omission, the patient had a better chance of survival, but the plaintiff cannot establish that, but for the omission, the patient would have survived or was even more likely than not to have survived. We believe that the trier of fact could conclude in the case at bar that the plaintiff has established proximate cause.
Our analysis begins with the Supreme Court's decision in Rogers v. Kee, 171 Mich. 551, 137 N.W. 260 (1912). In Rogers, the alleged act of malpractice was the failure to properly diagnose a fracture of the neck of the left femur and unskillful and negligent treatment of that fracture. The plaintiff presented evidence which suggested that, under a proper diagnosis and treatment, a better recovery from the injury would have occurred. The Rogers Court, supra at 561-563, 137 N.W. 260, discussed the obligations of a treating physician:
These excerpts illustrate the nature of the testimony given by the various physicians relative to proper treatment of such an injury. Such testimony imports clearly that a patient suffering from such an injury, on calling a physician, is entitled to approved methods of treatment from which experience of the profession indicates beneficial results are probable and to be anticipated; and, if not an entire recovery, a better ultimate condition than if left to chance. If so, can it not be legitimately inferred by a jury that plaintiff, a strong man, who, untreated and with his recovery left to chance, "shows as good results as would ordinarily obtain in a patient of his age under skillful treatment," if properly and skillfully treated would, in all probability, have a better recovery and be in yet better condition? We think such testimony [178 MICHAPP 23] presents an issue of fact for the jury--on probability, it is true. The issues of sickness and healing, life and death, are too uncertain to be otherwise forecast, but negligence which deprives a man of such probability is more than injuria sine damno.
What would constitute an injury to the plaintiff in an action like the present has been thus defined:
"Any want of the proper degree of skill or care which diminishes the chances of the patient's recovery, prolongs his illness, increases his suffering, or, in short, makes his condition worse than it would have been if due skill and care had been used, would, in a legal sense, constitute injury." Craig v Chambers, 17 Ohio St 253 [1867].
* * * * * *
... Until the learned experts testify that no treatment would avail or be beneficial, that no better results are probable with treatment than without--in other words, that a physician is useless in such a case (and they have not so testified here)--we think such facts present an issue for the jury.
Admittedly, the Rogers Court does refer to the "probability" of recovery and better results being more "probable" with treatment than without, upon which defendants base their argument that for plaintiff to recover she must show that...
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