Velez v. Tuma, Docket No. 281136.

CourtCourt of Appeal of Michigan (US)
Citation283 Mich. App. 396,770 N.W.2d 89
Docket NumberDocket No. 281136.
PartiesVELEZ v. TUMA.
Decision Date16 April 2009

Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak, and the Thurswell Law Firm (by Judith A. Susskind), Southfield, for the plaintiff.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by Noreen L. Slank and Geoffrey M. Brown), Southfield, for the defendant.



Defendant appeals as of right a judgment in plaintiff's favor following a jury trial in this medical malpractice action. We affirm.

This action arises from defendant's alleged failure to timely and properly diagnose and treat the acute vascular insufficiency condition that plaintiff presented with on February 1, 2000, which resulted in her left leg being amputated below the knee on February 13, 2000.

On appeal, defendant first argues that he was entitled to a judgment notwithstanding the verdict (JNOV) because plaintiff did not establish proximate cause in this purported "lost opportunity" medical malpractice action. After a review de novo of the trial court's decision, and viewing the evidence and all legitimate inferences in the light most favorable to plaintiff, we disagree with defendant. Sniecinski v. Blue Cross & Blue Shield of Michigan, 469 Mich. 124, 131, 666 N.W.2d 186 (2003).

To establish medical malpractice, a plaintiff must prove the following elements: (1) the applicable standard of care, (2) breach of that standard, (3) injury, and (4) proximate causation between the alleged breach and the injury. Weymers v. Khera, 454 Mich. 639, 655, 563 N.W.2d 647 (1997). Thus, plaintiff must prove that defendant's negligence proximately caused her injuries. Id. at 647, 563 N.W.2d 647. To establish proximate cause, plaintiff must prove the existence of both cause in fact and legal cause. Id., citing Skinner v. Square D Co., 445 Mich. 153, 162-163, 516 N.W.2d 475 (1994). To prove cause in fact, "`the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred.'" Weymers, supra at 647-648, 563 N.W.2d 647, quoting Skinner, supra at 164-165, 516 N.W.2d 475. To prove legal cause, "the plaintiff must show that it was foreseeable that the defendant's conduct `may create a risk of harm to the victim, and ... [that] the result of that conduct and intervening causes were foreseeable.'" Weymers, supra at 648, 563 N.W.2d 647, quoting Moning v. Alfono, 400 Mich. 425, 439, 254 N.W.2d 759 (1977).

Defendant argues that "Fulton v. [William] Beaumont Hosp., 253 Mich.App. 70 (2002) requires plaintiffs to prove a loss of opportunity of greater than 50 percentage points to establish causation in medical malpractice cases like this one alleging damages caused by a delay in treatment. Plaintiff failed to do so here." But, as in Stone v. Williamson, 482 Mich. 144, 753 N.W.2d 106 (2008), this plaintiff did not plead a loss of opportunity claim. Plaintiff sued defendant, alleging that his negligence resulted in an actual, physical injury—the loss of her left leg below the knee. Accordingly, the "lost opportunity doctrine" is not applicable to plaintiff's claim.

A "lost opportunity" cause of action was first recognized in Falcon v. Mem. Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990), a wrongful death case in which the decedent, after giving birth, suffered from an amniotic fluid embolism that caused her death. The subsequent medical malpractice case was premised on the fact that, although this complication was unpreventable, the defendants' failure to start an intravenous line to the decedent' before the event occurred deprived the decedent of a 37.5 percent chance of surviving the complication. Thus, although the defendants caused the decedent some harm, more probably than not they did not cause her death. She only had a 37.5 percent chance of surviving even if the intravenous line had been placed, i.e., even if the alleged negligence had not occurred. Nevertheless, the Falcon Court noted, the plaintiff was deprived of that opportunity, and the Court held: "We thus see the injury resulting from medical malpractice as not only, or necessarily, physical harm, but also as including the loss of opportunity of avoiding physical harm." Id. at 461, 462 N.W.2d 44 (opinion by LEVIN, J.). The Falcon Court continued:

A number of courts have recognized, as we would, loss of an opportunity for a more favorable result, as distinguished from the unfavorable result, as compensable in medical malpractice actions. Under this approach, damages are recoverable for the loss of opportunity although the opportunity lost was less than even, and thus it is not more probable than not that the unfavorable result would or could have been avoided.

Under this approach, the plaintiff must establish more-probable-than-not causation. He must prove, more probably than not, that the defendant reduced the opportunity of avoiding harm. [Id. at 461-462, 462 N.W.2d 44.]

Accordingly, the Falcon Court recognized that the loss of a substantial opportunity of avoiding physical harm was actionable and that the loss in that case, of a 37.5 percent opportunity of living, was actionable. Id. at 469-470, 462 N.W.2d 44.

The Stone Court, in particular Chief Justice TAYLOR, whose opinion was joined by Justices CORRIGAN and YOUNG, further explained the Falcon decision:

Under this [loss-of-opportunity] theory, a plaintiff would have a cause of action independent of that for the physical injury and could recover for the malpractice that caused the plaintiff to go from a class of patients having a "good chance" to one having a "bad chance." Without this analysis, the plaintiff in Falcon would not have had a viable claim because it could not have been shown that the defendant more probably than not caused the physical injury. Until Falcon, medical-malpractice plaintiffs alleging that the defendant's act or omission hastened or worsened the injury (such as by failing to diagnose a condition) had to prove that the defendant's malpractice more probably than not was the proximate cause of the injury. [Stone, supra, at 154-155, 753 N.W.2d 106 (emphasis supplied).]

Justice CAVANAGH, whose opinion in Stone was joined by Justices WEAVER and KELLY, similarly explained the holding in Falcon:

In sum, when Falcon adopted the loss-of-opportunity doctrine, it recognized that the injury of loss of an opportunity was distinct from the injury of suffering the associated physical harm— which, in that case, was death. [Id. at 168, 753 N.W.2d 106.]

In response to the Falcon decision, Weymers, supra at 649, 563 N.W.2d 647, the Legislature amended MCL 600.2912a by adding subsection 2912a(2), which provides:

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 survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.

As our Supreme Court recognized in Stone, the proper interpretation of this statutory language is subject to considerable debate. Chief Justice TAYLOR, joined by Justices CORRIGAN and YOUNG, would hold: "the first sentence of subsection 2 requires plaintiffs in every medical-malpractice case to show the defendant's malpractice proximately caused the injury while, at the same time, the second sentence refers to cases in which such proof not only is unnecessary, but is impossible." Stone, supra at 157, 753 N.W.2d 106. On the ground that the two sentences created an incomprehensible paradox, Stone, supra at 157-159, 753 N.W.2d 106, these justices would hold that the statute was unenforceable as written. Justice CAVANAGH, joined by Justices WEAVER and KELLY, disagreeing with that interpretation of the second sentence, would hold that the statute was enforceable and "merely sets the threshold for invoking the loss-of-opportunity doctrine" that Falcon adopted. Id. at 172, 753 N.W.2d 106. That is, "[i]t requires that a plaintiff's premalpractice opportunity to survive or achieve a better result was greater than 50 percent." Id. Thus, the plaintiff in Falcon would not have met the threshold because his decedent only had a 37.5 percent chance of surviving the complication even if the defendants had not been negligent. Justices CAVANAGH, WEAVER, KELLY, and MARKMAN in Stone "would hold that loss of the opportunity is, by itself, a compensable injury, although the opportunity must be `lost'—that is, the bad result must occur—in order for a claim to accrue." Id. at 164, 753 N.W.2d 106 (opinion by TAYLOR, C.J.).

Here, defendant relies on the case of Fulton v. William Beaumont Hosp., 253 Mich.App. 70, 655 N.W.2d 569 (2002), for his argument that plaintiff was required, and failed, to prove a loss of opportunity claim. We note the statement in Stone, that "[a]ll seven justices believe that Fulton's analysis is incorrect or should be found to no longer be good law, though their reasons for doing so vary." Stone, supra at 164, 753 N.W.2d 106 (opinion by TAYLOR, C.J.). But because a majority of the Stone Court held that the Stone case was not a lost-opportunity case, the correctness of Fulton could not be reached and it remains undisturbed. Id. Thus, we turn to Fulton.

In Fulton, the medical malpractice claim was premised on the theory that the defendants' failure to properly diagnose and treat the decedent's cervical cancer resulted in a loss of her opportunity to survive. Fulton, supra at 73, 655 N.W.2d 569. Thus, like in Falcon, the claimed injury specifically pleaded was the loss of opportunity to survive, not a physical injury like the decedent's death. A medical...

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