Falcon v. Memorial Hosp.
| Decision Date | 20 December 1990 |
| Docket Number | 86722,Docket Nos. 86721 |
| Citation | 436 Mich. 443,462 N.W.2d 44 |
| Parties | Ruby FALCON, Administratrix of the Estate of Nena J. Falcon, deceased, Plaintiff-Appellee, v. MEMORIAL HOSPITAL, a corporation, Defendant-Third Party Plaintiff, Cross-Plaintiff-Appellee, and Dr. S.N. Kelso, Jr., Defendant-Cross-Defendant-Appellant, and Norma Denny, CRNA, Third-Party Defendant. Ruby FALCON, Administratrix of the Estate of Nena J. Falcon, deceased, Plaintiff-Appellee, v. MEMORIAL HOSPITAL, a corporation, Defendant Third-Party Plaintiff and Cross-Plaintiff-Appellant, and Dr. S.N. Kelso, Jr., Defendant and Cross-Defendant-Appellee, and Norma Denny, CRNA, Third-Party-Defendant. |
| Court | Michigan Supreme Court |
Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen and Bartnick by Lee R. Franklin, Detroit, for plaintiff-appellee in No. 86722.
Weipert, Morr & Weipert by Michael A. Weipert, Monroe, for Dr. Kelso, Jr.
Plunkett & Cooney, P.C. by Robert G. Kamenec, Detroit, for Memorial Hosp.
Michigan Defense Trial Counsel by Barbara Hughes Erard, Robert W. Powell, Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, for Michigan Defense Trial Counsel as amicus curiae.
Mark Granzotto, Detroit, Monica Linkner, Berkley, Charles P. Burbach, Southfield, amicus curiae on behalf of Michigan Trial Lawyers Ass'n.
Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. by Susan Healy Zitterman, Detroit, amicus curiae on behalf of Michigan Hosp. Ass'n.
Schureman, Frakes, Glass & Wulfmeier by Priscilla L. Schwarze, Detroit, amicus curiae on behalf of Michigan Soc. of Hosp. Risk Management.
The deposition testimony of plaintiff Ruby Falcon's 1 expert witness tended to show that had the defendant physician, S.N. Kelso, Jr., followed the procedures the expert witness claims should have been followed, the patient, Nena J. Falcon, would have had a 37.5 percent opportunity 2 of surviving the medical accident that was a cause of her death.
The trial court dismissed the complaint 3 because Falcon's evidence did not show that Nena Falcon probably--defined as more than fifty percent--would have survived if the procedure had not been omitted. The Court of Appeals reversed, stating that Falcon need only "establish that the omitted treatment or procedure had the potential for improving the patient's recovery or preventing the patient's death." Falcon v. Memorial Hosp., 178 Mich.App.17, 26-27, 443 N.W.2d 431 (1989). The Court added that "while a plaintiff must show some probability that the treatment would be successful, that probability need not be greater than fifty percent." 4 We affirm.
Plaintiffs claiming medical malpractice ordinarily contend that the act or omission said to have constituted medical malpractice caused physical harm to the patient. Falcon so contends in the instant case, claiming that although Nena Falcon would have had only a 37.5 percent opportunity of surviving the medical accident that was a cause of her death had the defendant physician followed the procedures the expert claims should have been followed, and hence less than a fifty-one percent opportunity of surviving, the defendants nevertheless caused Nena Falcon's death.
The defendants contend that because the proofs at a trial of Falcon's claim would not show that it was probable, measured as more than fifty percent, that Nena Falcon would have avoided physical harm had the procedure not been omitted, Falcon cannot show that the asserted negligence of defendants caused her physical harm. They also contend that Falcon cannot maintain an action for wrongful death because such an action can only be maintained where the plaintiff can establish that the act or omission caused death, and, again, Falcon's proofs will fall short because they will show only that there would have been a 37.5 percent opportunity of avoiding death and not a more than fifty percent opportunity had the procedure not been omitted.
Some courts disallow recovery for lost opportunity unless the plaintiff can establish that the patient would not have suffered the physical harm but for the defendant's negligence, or, at least, that it is more probable, measured as more than fifty percent, 5 that, but for such negligence, the patient would not have suffered the physical harm. 6
Under the more probable, measured as more than fifty percent, approach to causation, a plaintiff who establishes that the patient would have had more than a fifty percent opportunity of not suffering physical harm had the defendant not acted negligently, recovers one hundred percent of the damages. The better than even opportunity is compensated as if it were a certainty, although the patient's chances of a better result are significantly less than one hundred percent. 7
To say that a patient would have had a ninety-nine percent opportunity of survival if given proper treatment, does not mean that the physician's negligence was the cause in fact if the patient would have been among the unfortunate one percent who would have died. A physician's carelessness may, similarly, be the actual cause of physical harm although the patient had only a one percent opportunity of surviving even with flawless medical attention. 8
All this is simply to say that the more probable than not standard, as well as other standards of causation, are analytic devices--tools to be used in making causation judgments. They do not and cannot yield ultimate truth. Absolute certainty in matters of causation is a rarity. 9
Other courts have permitted recovery for physical harm on a showing that the lost opportunity was a substantial, albeit fifty percent or less, factor in producing the harm:
"An evolving trend has developed to relax the standard for sufficiency of proof of causation ordinarily required of a plaintiff to provide a basis upon which the jury may consider causation in the 'lost chance of survival' cases." McKellips v. St. Francis Hosp., Inc., 741 P.2d 467, 471 (Okla., 1987). 10
Some courts have held that the plaintiff need only show that the defendant's conduct was a substantial factor in producing the physical harm. 11 Other courts allow recovery for loss of a fifty percent or less opportunity of achieving a better result without clearly articulating a standard of causation. 12 A number of courts have so held on the basis of language in the Restatement Torts, 2d. 13
Nena Falcon, a nineteen-year-old woman, gave birth to a healthy baby, Justice Eugene Falcon, in the early morning hours of March 21, 1973. Moments after delivery, Nena Falcon coughed, gagged, convulsed, became cyanotic, and suffered a complete respiratory and cardiac collapse. Attempts to revive her were unsuccessful. 14 She was pronounced dead soon thereafter.
The autopsy report indicated that amniotic fluid embolism, 15 an unpreventable complication that occurs in approximately one out of ten or twenty thousand births, was the cause of death. The survival rate of amniotic fluid embolism is, according to Falcon's expert witness, 37.5 percent if an intravenous line is connected to the patient before the onset of the embolism. In this case, an intravenous line had not been established. 16
Falcon's theory is that had a physician or nurse anesthetist inserted an intravenous line before administering the spinal anesthetic to assist the physician in dealing with any of several complications, the intravenous line could have been used to infuse life-saving fluids into Nena Falcon's circulatory system, providing her a 37.5 percent opportunity of surviving. By not inserting the intravenous line, the physician deprived her of a 37.5 percent opportunity of surviving the embolism.
The question whether a defendant caused an event is not readily answered, 17 and is especially perplexing in circumstances such as those present in the instant case where the defendant's failure to act is largely responsible for the uncertainty regarding causation. 18
Had the defendants in the instant case inserted an intravenous line, one of two things would have happened, Nena Falcon would have lived, or she would have died. 19 There would be no uncertainty whether the omissions of the defendants caused her death. 20 Falcon's destiny would have been decided by fate and not possibly by her health care providers. The United States Court of Appeals for the Fourth Circuit, observed:
21 Hicks v United States, 368 F2d 626, 632 (C.A.4, 1966). 22 (Emphasis in original.)
In an ordinary tort action seeking recovery for physical harm, the defendant is a stranger to the plaintiff and the duty imposed by operation of law is imposed independently of any undertaking by the defendant. In an action claiming medical malpractice, however, the patient generally is not a stranger to the defendant. Generally, the patient engaged the services of the defendant physician. The physician undertook to perform services for the patient, and the patient undertook to pay or provide payment for the services.
The scope of the undertakings by a physician or hospital to the patient and by the patient to the physician or hospital is not generally a matter of express agreement. There is, however,...
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