O'neal v. St. John Hosp. & Med. Ctr.

• Decision Date: 31 July 2010
• Docket Number: Calendar No. 3.,Docket No. 138180.
• Court: Michigan Supreme Court
• Parties: Raymond O'NEAL, Plaintiff-Appellant, v. ST. JOHN HOSPITAL & MEDICAL CENTER, Ralph DiLisio M.D. and Efstathios Tapazoglou, M.D., Defendant-Appellees.

487 Mich. 485
791 N.W.2d 853

Raymond O'NEAL, Plaintiff-Appellant,
v.
ST. JOHN HOSPITAL & MEDICAL CENTER, Ralph DiLisio M.D. and Efstathios Tapazoglou, M.D., Defendant-Appellees.

Docket No. 138180.
Calendar No. 3.

Supreme Court of Michigan.

Argued Jan. 12, 2010.
Decided July 31, 2010.

791 N.W.2d 854

McKeen & Associates, P.C. (by Ramona C. Howard), Detroit, for Raymond O'Neal.

Kitch Drutchas Wagner Valitutti & Sherbrook (by Christina A. Ginter and Cheryl A. Cardelli), Detroit, for St. John Hospital & Medical Center and Ralph DiLisio, M.D.

Rutledge, Manion, Rabaut, Terry & Thomas, P.C. (by Paul J. Manion and Amy E. Schlotterer), Detroit, for Efstathios Tapazoglou, M.D.

Sommers Schwartz, P.C. (by Richard D. Toth), Southfield, for Amici Curiae Michigan Association for Justice.

Warner Norcross & Judd LLP (by John J. Bursch, Matthew T. Nelson, and Julie Lam) Grand Rapids, for Amicus Curiae Michigan Health & Hospital Association.

Ottenwess & Associates, PLC (by David M. Ottenwess, Stephanie P. Ottenwess, Detroit, and Melissa E. Graves), for Amicus Curiae Michigan Defense Trial Counsel.

Kerr, Russell and Weber, PLC (by Daniel J. Schulte and Joanne Geha Swanson), Detroit, for Amicus Curiae Michigan State Medical Society.

Opinion

HATHAWAY, J.

487 Mich. 489

This case addresses the burden of proof necessary to establish proximate causation in a traditional medical malpractice action. At issue is whether the Court of Appeals properly reversed the trial court's denial of summary disposition. The trial court ruled that plaintiff had

791 N.W.2d 855

established a question of fact on the issue of proximate causation sufficient to withstand a motion for summary disposition. The Court of Appeals reversed. It treated plaintiff's claim as a loss-of-opportunity claim instead of a traditional medical malpractice claim and held that plaintiff did not raise a genuine issue of fact, as required by Fulton v. William Beaumont Hosp., 253 Mich.App. 70, 655 N.W.2d 569 (2002), because plaintiff could not prove that receiving the alleged appropriate treatment would have decreased his risk of stroke by greater than 50 percentage points. We disagree with the Court of Appeals' analysis and conclusion.

We hold that the Court of Appeals erred by relying on Fulton and determining that this is a loss-of-opportunity case controlled by both the first and second sentences of MCL 600.2912a(2), and instead hold that this case presents a claim for traditional medical malpractice controlled only by the first sentence of

487 Mich. 490

§ 2912a(2). Further, we conclude that plaintiff established a question of fact on the issue of proximate causation because plaintiff's experts opined that defendants' negligence more probably than not was the proximate cause of plaintiff's injuries. Finally, we hold that Fulton did not correctly set forth the burden of proof necessary to establish proximate causation for traditional medical malpractice cases as set forth in § 2912a(2). Therefore, we overrule Fulton to the extent that it has led courts to improperly designate what should be traditional medical malpractice claims as loss-of-opportunity claims and has improperly transformed the burden of proof in a traditional malpractice case from a proximate cause to the proximate cause.

Accordingly, we reverse the judgment of the Court of Appeals and remand this matter to the Court of Appeals for consideration of the issue not decided on appeal in that court.

I. FACTS AND PROCEEDINGS

This case involves allegations of negligence in medical care. Plaintiff had an illness known as sickle cell anemia. Plaintiff developed acute chest syndrome (ACS), which is a known complication of sickle cell anemia. Plaintiff claims that his ACS was misdiagnosed as pneumonia and as a consequence he did not receive the correct treatment. Plaintiff's experts opined that ACS requires treatment with an aggressive blood transfusion or an exchange transfusion, either of which needs to be given on a timely basis. While plaintiff ultimately received a transfusion, his experts opined that it was given too late and as a consequence, plaintiff suffered a disabling stroke. Plaintiff alleged that defendants' failure to provide a timely transfusion violated the standard of care and that defendants'

487 Mich. 491

negligence was a proximate cause of his disabling stroke. Plaintiff's complaint pled a traditional malpractice claim and did not plead a claim for lost opportunity.

In support of his position, plaintiff offered two expert hematologists who testified that defendants' violations of the standard of care more probably than not caused plaintiff's injuries. Plaintiff's third hematology expert explained his opinion in statistical terms and testified that a patient with ACS has a 10 to 20 percent chance of developing a stroke. He further testified that with a timely exchange transfusion, the risk of stroke is reduced to less than 5 to 10 percent.

Defendants brought a motion for summary disposition challenging the sufficiency of plaintiff's expert testimony on the issue of proximate causation. Even though plaintiff's complaint pled only traditional malpractice, defendants' motion made no distinction between the proof required for proximate causation in a traditional malpractice claim and the burden

791 N.W.2d 856

required for a claim based on loss of opportunity. Instead, defendants argued that plaintiff's case was controlled by both the first and second sentences of MCL 600.2912a(2), which requires that the plaintiff prove "that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants" and that "the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%."

Defendants argued that a reduction in the risk of stroke from 10 to 20 percent to less than 5 to 10 percent amounted to at best a 20 percentage point differential,¹

487 Mich. 492

which would be insufficient to meet the burden of proof on proximate causation. Defendants relied on Fulton to support their position that plaintiff must comply with this percentage point differential theory. Plaintiff countered that defendants' statistical portrayal of these numbers was mathematically inaccurate because his experts' testimony supported a finding that his injuries were more probably than not proximately caused by defendants' negligence. The trial court agreed with plaintiff. The trial court denied defendants' motion, ruling that plaintiff had presented sufficient testimony to establish a question of fact on proximate causation.

The Court of Appeals based its decision entirely on Fulton and reversed the trial court in an unpublished opinion per curiam, holding that this case presented a claim for a loss of opportunity and that plaintiff had not met his burden of proof under MCL 600.2912a(2).² The Court of Appeals reasoned that plaintiff was bound by the Fulton analysis and that a percentage point differential applied to this case.³ The Court opined:

In asserting that defendants' negligence resulted in a stroke, plaintiff essentially argues that had defendants ordered a transfusion sooner, plaintiff would have avoided a stroke. Thus, to say defendants' failure to apply proper treatment caused the stroke is to say that this failure deprived plaintiff a greater opportunity to avoid the stroke. Consequently, plaintiff's claim amounts to one of lost opportunity to achieve a better result, and § 2912a(2) is applicable.
In Fulton, this Court set forth the formula by which to calculate whether the opportunity to achieve a better result

487 Mich. 493

was greater than 50 percent—specifically, the Court must "subtract[ ] the plaintiff's opportunity to survive after the defendant's alleged malpractice from the initial opportunity to survive without the malpractice." Ensink [ v. Mecosta Co. Gen. Hosp., 262 Mich.App. 518, 531, 687 N.W.2d 143 (2004)], supra at 531.^[[[^4]

We granted leave to review this matter, asking the parties to brief:
(1) whether the requirements set forth in the second sentence of MCL 600.2912a(2) apply in this case; (2) if not, whether the plaintiff presented sufficient evidence to create a genuine issue of fact with regard to whether the defendants'

791 N.W.2d 857

conduct proximately caused his injury or (3) if so, whether Fulton v. William Beaumont Hosp., 253 Mich.App. 70, 655 N.W.2d 569 (2002), was correctly decided, or whether a different approach is required to correctly implement the second sentence of § 2912a(2).^[5]

II. STANDARD OF REVIEW

This case involves review of a trial court's decision on a motion for summary disposition which this Court reviews de novo.⁶ The issue also involves questions of statutory interpretation. Statutory interpretation is a question of law, which this Court also reviews de novo.⁷

III. ANALYSIS

At issue is whether the Court of Appeals properly reversed the trial court's denial of summary disposition on the issue of proximate causation. In order to answer this question we must review MCL 600.2912a.

487 Mich. 494

MCL 600.2912a provides:

(1) Subject to subsection (2), in an action alleging malpractice, the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:

(a) The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice or care in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.

(b) The defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that

...