Weymers v. Khera, Docket No. 102961

• Decision Date: 17 June 1997
• Docket Number: Docket No. 102961,No. 6,6
• Citation: 454 Mich. 639,563 N.W.2d 647
• Parties: Kimberly WEYMERS and Jonathan Weymers, Plaintiffs-Appellees, v. Rheka KHERA, M.D., Defendant-Appellant, and Gregorio V. Ferrer, M.D. and Gregorio V. Ferrer, M.D., P.C., Frank L. Fenton, D.O., Walled Lake Medical Center, P.C., and St. Joseph Mercy Hospital doing business as Sister Of Mercy Health, Defendants. Calendar
• Court: Michigan Supreme Court

Page 647

563 N.W.2d 647

454 Mich. 639

Kimberly WEYMERS and Jonathan Weymers, Plaintiffs-Appellees, v. Rheka KHERA, M.D., Defendant-Appellant, and Gregorio V. Ferrer, M.D. and Gregorio V. Ferrer, M.D., P.C.,

Frank L. Fenton, D.O., Walled Lake Medical Center, P.C., and

St. Joseph Mercy Hospital doing business as Sister Of Mercy

Health, Defendants.

Docket No. 102961.

Calendar No. 6.

Supreme Court of Michigan.

Argued Jan. 14, 1997.

Decided June 17, 1997.

[454 Mich. 641] Sommers, Schwartz, Silver & Schwartz, P.C. by Robert B. Sickels and Patrick Burkett, Southfield, for plaintiffs-appellees.

[454 Mich. 642] David L. Rosenthal, P.C. by David L. Rosenthal, Farmington Hills, for defendant-appellant.

OPINION

RILEY, Justice.

In this appeal, we address three issues: (1) whether Michigan recognizes a cause of action for the loss of an opportunity to avoid physical harm less than death, (2) whether the trial court abused its discretion in determining that plaintiff's complaint did not sufficiently plead a claim for pain and suffering from her pulmonary injury, ¹ and (3) whether the trial court abused its discretion in denying plaintiff's motion to amend her complaint to add a claim for pain and suffering from pulmonary injury. We hold that Michigan does not recognize a cause of action for the loss of an opportunity to avoid physical harm less than death. We also hold that the trial court did not abuse its discretion in ruling that plaintiff's complaint was inadequately specific and in refusing to allow plaintiff to amend her complaint. Accordingly, we reverse the Court of Appeals decision.

FACTS AND PROCEEDINGS

In early October 1990, plaintiff Kimberly Weymers, who was twenty years old, became ill with coughing, fever, nausea, aching, and chest congestion. After her condition did not improve for more than a week, she went to defendant Walled Lake Medical Center where she was initially examined by a physician's assistant. The physician's assistant concluded from plaintiff's symptoms that she suffered from a respiratory infection and gave her antibiotics. After another week, plaintiff returned to the medical center because her symptoms intensified. The physician's assistant diagnosed plaintiff with pneumonia and sent her home with a stronger prescription of antibiotics. On October 23, 1990, plaintiff visited the medical center a third time because her condition had not improved. A blood sample indicated that plaintiff suffered from severe anemia. Defendant Dr. Frank Fenton, the owner of the medical center, arranged for plaintiff to be admitted to defendant St. Joseph's Hospital in Pontiac.

On the evening of October 23, 1990, plaintiff was admitted to St. Joseph's intensive care unit and was given blood transfusions to combat the anemia. On October 24, 1990, defendant Dr. Rheka Khera examined plaintiff and suspected the possibility of a kidney problem and asked defendant Dr. Gregorio Ferrer, a nephrologist, ² to examine her. Dr. Ferrer examined her that day and concluded that she could have a rare disease, Goodpasture's syndrome. ³ He began an immunosuppressive therapy ⁴ immediately, and scheduled a kidney biopsy for October 25, 1990. Plaintiff initially responded to the treatment, but soon after her condition began to deteriorate. Plaintiff's biopsy was postponed until October 26, 1990, and she was placed on a respirator.

On October 26, 1990, plaintiff was transferred to William Beaumont Hospital in Royal Oak and placed under the care of Dr. Isam Salah. At the time, plaintiff had only ten to fifteen percent of her kidney functions. The biopsy was delayed for another three days. The hospital performed a plasma exchange, but it failed to save plaintiff's kidney functioning. ⁵ Plaintiff was placed on dialysis after her kidneys totally failed and eventually underwent a kidney transplant.

On August 16, 1991, plaintiff filed this medical malpractice suit against defendants Drs. Khera, Ferrer, and Fenton, and against Walled Lake Medical Center and St. Joseph Mercy Hospital. During discovery, plaintiff presented an affidavit by expert witness Dr. Eric Neilson, Chief of the Renal Division of the University of Pennsylvania Hospital, who testified that if defendants had given plaintiff proper care she would have had a thirty to forty percent chance of retaining the functioning of her kidneys. Dr. Neilson noted that plaintiff's life expectancy had been "significantly shortened" as a consequence of the loss of her kidneys, and that she would ultimately suffer a premature death. ⁶ After discovery was closed, St. Joseph's Hospital moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff had failed to demonstrate that the alleged negligence caused the loss of her kidneys. ⁷ The other defendants joined the motion. In response to defendants' motion, plaintiff asserted that she could recover for her kidney damage even though there was less than a fifty percent chance that defendants' negligence caused the damage on the basis of the lost opportunity doctrine recognized in Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990). Plaintiff also argued that her damages were not limited to the loss of her kidneys, but also included pain and suffering from her pulmonary injury. ⁸ Defendants responded that plaintiff had failed to allege damages from her pulmonary injury.

The trial court agreed with defendants and granted their motion for summary disposition. The trial court noted that plaintiff had failed to show that it was more probable than not that her kidney failure was caused by defendants' alleged negligence, and refused to extend the lost opportunity doctrine recognized in Falcon, a wrongful death case, to situations in which the injury did not result in death. The trial court further held that plaintiff's claim of pulmonary injury was not sufficiently pleaded in her complaint. Plaintiff subsequently asked the trial court to allow her to amend her complaint to specifically allege pain and suffering from her pulmonary condition. The trial court denied this request.

Plaintiff appealed in the Court of Appeals, which reversed the decision of the trial court, holding that the lost opportunity doctrine applied to physical injury less than death. 210 Mich.App. 231, 236-237, 533 N.W.2d 334 (1995). The Court of Appeals also held that the trial court abused its discretion in not allowing plaintiff to amend her complaint because defendants were on notice of plaintiff's claim of pulmonary injury and therefore would not have been "unduly prejudiced" by the amendment. ⁹ Id. at 241, 533 N.W.2d 334.

Defendant Drs. Khera and Ferrer appealed, and this Court granted leave to appeal on May 22, 1996. ¹⁰

I. LOST OPPORTUNITY DOCTRINE

A

Defendants brought their summary disposition motion pursuant to MCR 2.116(C)(10). Under that subsection, summary disposition is proper when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." In other words, the "court must be satisfied ... that 'it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.' " Stevens v. McLouth Steel Products Corp., 433 Mich. 365, 370, 446 N.W.2d 95 (1989), quoting Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316 (1973). In making that determination, the court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed by the parties in the light most favorable to the party opposing the motion. Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996). We review summary disposition decisions de novo. Groncki v. Detroit Edison Co., 453 Mich. 644, 649, 557 N.W.2d 289 (1996).

B

We address whether the Court of Appeals erred in recognizing a cause of action for the loss of an opportunity to avoid physical harm less than death.

Under Michigan medical malpractice law, as part of its prima facie case, a plaintiff must prove that the defendant's negligence proximately caused the plaintiff's injuries. M.C.L. § 600.2912a; M.S.A. § 27A.2912(1); Locke v. Pachtman, 446 Mich. 216, 222, 521 N.W.2d 786 (1994). To establish proximate cause, the plaintiff must prove the existence of both cause in fact and legal cause. Skinner v. Square D Co., 445 Mich. 153, 162-163, 516 N.W.2d 475 (1994). To establish cause in fact,

the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, [ ¹¹] but for the defendant's conduct, the plaintiff's injuries would not have occurred.

* * *

"The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." [Id. at 164-165, 516 N.W.2d 475, quoting Prosser & Keeton, Torts (5th ed.), § 41, p. 269].[ ¹²

To establish 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." Moning v. Alfono, 400 Mich. 425, 439, 254 N.W.2d 759 (1977).

The antithesis of proximate cause is the doctrine of lost opportunity. The lost opportunity doctrine allows a plaintiff to recover when the defendant's negligence possibly, i.e., a probability of fifty percent or less, caused the plaintiff's injury. ¹³ See Reisig, The loss of a chance theory in medical malpractice cases: An overview, 13 Am J Trial Advocacy 1163 (1990). In Falcon, supra at 469-470, 462 N.W.2d 44 (Levin, J., lead opinion), 472-473 (Boyle, J., concurring), this Court adopted the lost opportunity...