Weymers v. Khera

• Decision Date: 21 April 1995
• Docket Number: Docket No. 169280
• Citation: 533 N.W.2d 334,210 Mich.App. 231
• Parties: Kimberly WEYMERS and Jonathan Weymers, Plaintiffs-Appellants, v. Rheka KHERA, M.D., Gregorio V. Ferrer, M.D. and Gregorio V. Ferrer, M.D., P.C., Defendants-Appellees, and Frank L. Fenton, D.O., Walled Lake Medical Center, P.C. and St. Joseph Mercy Hospital d/b/a Sister of Mercy Health, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 334

533 N.W.2d 334

210 Mich.App. 231

Kimberly WEYMERS and Jonathan Weymers, Plaintiffs-Appellants, v. Rheka KHERA, M.D., Gregorio V. Ferrer, M.D. and Gregorio V Ferrer, M.D., P.C., Defendants-Appellees and Frank L. Fenton, D.O., Walled Lake Medical Center, P.C. and St. Joseph Mercy Hospital d/b/a Sister of Mercy Health, Defendants.

Docket No. 169280.

Court of Appeals of Michigan.

Submitted Jan. 10, 1995, at Detroit.

Decided April 21, 1995, at 11:20 a.m.

Released for Publication June 19, 1995.

Gage & Sickels, P.C. by Robert B. Sickels and Ronda Little, Detroit, for Kimberly and Jonathan Weymers.

David L. Rosenthal, Farmington Hills, for Rheka Khera, M.D.

Michael F. Kenny, Bloomfield Hills, for Gregorio V. Ferrer, M.D., and Gregorio V. Ferrer, M.D., P.C.

Before WHITE, P.J., and GRIBBS and SMOLENSKI, JJ.

SMOLENSKI, Judge.

In this medical malpractice action, plaintiffs appeal as of right from orders granting summary disposition pursuant to MCR 2.116(C)(10), no issue of material fact, in favor of defendants Rheka Khera, M.D., Gregorio V. Ferrer, M.D., and Gregorio V. Ferrer, M.D., P.C., and denying plaintiffs' motion to amend their complaint. We reverse and remand.

I

Plaintiff Kimberly Weymers, ¹ then twenty years old, was admitted to defendant St. Joseph Mercy Hospital ² in Pontiac on October 23, 1990, where she was treated by defendant Khera and, subsequently, by defendant Ferrer. Plaintiff's kidneys failed by October 25, 1990. Plaintiff was also placed on a respirator. On October 26, 1990, plaintiff was transferred to another hospital facility where she remained on a respirator for approximately two weeks. Plaintiff was diagnosed as suffering from Goodpasture's Syndrome, a disease of the immune system that affects the lungs and kidneys. Plaintiff suffered complete and permanent kidney failure. ³

Plaintiff brought a medical malpractice action against, among others, defendant hospital and defendants Khera and Ferrer. Plaintiff alleged that defendants Khera's and Ferrer's negligent failure to timely diagnose and treat her Goodpasture's Syndrome caused the following damages: medical expenses, lost earnings, physical and mental pain and suffering, and permanent loss of all kidney function.

During discovery, plaintiff's expert testified that if plaintiff had been timely and properly diagnosed with and treated for Goodpasture's Syndrome upon being admitted to defendant hospital she would have had a thirty to forty percent chance of retaining kidney function. Defendant hospital moved for summary disposition pursuant to MCR 2.116(C)(10) with regard to the issue of causation. Defendants Khera and Ferrer joined in defendant hospital's motion, which the trial court granted. Plaintiff subsequently moved to amend her complaint to specifically allege pulmonary damage, but the motion was denied by the trial court. Plaintiff appeals as of right.

II

On appeal, we review the trial court's grant or denial of summary disposition de novo. Allstate Ins. Co. v. Elassal, 203 Mich.App. 548, 552, 512 N.W.2d 856 (1994). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests whether there is factual support for a claim. When deciding such a motion, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Allen v. Keating, 205 Mich.App. 560, 562, 517 N.W.2d 830 (1994). Summary disposition pursuant to MCR 2.116(C)(10) is proper when, except with regard to the amount of damages, there is no genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law. Allstate, supra.

III

The essential facts in this case are not in dispute. Defendants Khera and Ferrer do not dispute that plaintiff's expert would testify that plaintiff had a thirty to forty percent chance of retaining kidney function if her disease had been timely and properly diagnosed and treated. However, defendants argue that they were entitled to judgment as a matter of law because plaintiff cannot establish that their conduct more likely than not was the proximate cause of her injuries, and because the doctrine of lost chance or lost opportunity as interpreted in Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990), only applies in wrongful death cases. Plaintiff argues that Falcon applies in this case because she will suffer a premature death.

In Falcon, a nineteen-year-old patient suffered an unpreventable and fatal amniotic-fluid embolism after the birth of her child. The plaintiff, the administratrix of the decedent's estate, filed suit against the hospital and the attending physician, alleging that the failure to insert an intravenous line into the decedent before the onset of the embolism deprived the patient of a 37.5 percent chance of survival. Id. at 454-455, 462 N.W.2d 44 (Levin, J.), 475, 462 N.W.2d 44 (Riley, C.J.).

A four-justice majority held that the patient's lost opportunity to survive was an actionable injury distinct from the patient's death, provided that the negligence of the defendant, more probably than not, caused the loss of opportunity. Id. at 461-462, 462 N.W.2d 44 (Levin, J.), 472-473, 462 N.W.2d 44 (Boyle, J.). Justices Levin and Archer further stated in the lead opinion that

[a] patient who suffers [a loss of an opportunity for a better result caused by] a failure to diagnose or a misdiagnosis has an actionable claim for damages without regard to whether death ensues....

The accrual of a cause of action for loss of an opportunity of achieving a better result does not, thus, depend on whether death ensues as a result. The cause of action accrues when harm and damages result from the loss of a substantial opportunity for a better result. The plaintiff has the burden of establishing through expert testimony the difference between the course of the disease and treatment had there been a correct diagnosis, and the course of the disease and treatment as a result of failure to diagnose or misdiagnosis.

The patient, or, if death ensues, his personal representative, need not show that it was probable, measured as more than fifty percent, that the course of the disease and treatment would have been different. It is sufficient to show, more probably than not, that had there been a correct diagnosis, the patient would have had a substantial opportunity of avoiding the course of the disease and treatment that occurred. [Id. at 470, n. 43, 462 N.W.2d 44 (Levin, J.).]

However, the concurring opinion of Justices Boyle and Cavanagh emphasized

that the Court today is called upon to decide the viability of a claim for "lost opportunity" only where the ultimate harm to the victim is death. Thus, any language in the lead opinion suggesting that a similar cause of action might lie for a lost opportunity of avoiding lesser physical harm is dicta. Whether the social and policy factors which justify compensation for a lost chance of survival would justify recovery for the loss of a chance to avoid some lesser harm is a question for another day. [Id. at 473, 462 N.W.2d 44 (Boyle, J.).]

We believe that day has arrived. We hold that the loss of a substantial opportunity to avoid physical harm is harm distinct from the underlying injury for which tort law should allow recovery in proportion to the extent of the lost opportunity, provided that the negligence of the defendant, more probably than not, caused the loss of opportunity.

We believe that the arguments for allowing a cause of action for the loss of an opportunity to survive apply equally to allowing a cause of action for the loss of an opportunity to avoid lesser physical harm. In recognizing such harm, the traditional rule that the plaintiff must prove that the defendant's negligent conduct, more likely than not, caused the harm is not contradicted. Falcon, supra at 462-463, 462 N.W.2d 44 (Levin, J.), 472-473, 462 N.W.2d 44 (Boyle, J.); Harris v. Kissling, 80 Or.App. 5, 721 P.2d 838 (1986); but see Falcon, supra at 473-495, 462 N.W.2d 44 (Riley, C.J., dissenting).

Allowing recovery for the loss of a substantial opportunity to avoid physical harm is an equitable approach. DeBurkarte v. Louvar, 393 N.W.2d 131, 137 (Iowa, 1986). In this case, defendants undertook to protect plaintiff from the type of harm that occurred. Falcon, supra at 461, 462 N.W.2d 44 (Levin, J.). As Justice Levin stated in Falcon, an actor's negligent omission in cases like this prevents the plaintiff from being able to prove the defendant's liability, and destroys the ability to allow fate to run its course. Id. at 456-457, nn. 20, 21, 462 N.W.2d 44. Here, assuming for the purpose of argument only that defendants should have diagnosed and treated plaintiff for Goodpasture's Syndrome upon her admission to the hospital, plaintiff might still have lost kidney function, but she would know that it was because of "fate," i.e., the natural progression of the disease, and not because of any failure by defendants.

If the lost opportunity doctrine is limited to cases only involving death, potentially flagrant examples of malpractice could go uncompensated in cases in which the same negligent failure to diagnose or treat results in a lost opportunity to avoid egregious harm, i.e., paralysis or coma. Thus, the deterrent and loss-allocation functions of tort law would be undermined if defendants could escape liability for the effects of negligent conduct that cause demonstrable losses. DeBurkarte, supra [210 Mich.App. 238] at 137 (citing King, Causation, valuation, and chance in personal injury torts involving preexisting conditions and future consequences, 90 Yale LJ 1353, 1377-1378 [1981]; but see Falcon, supra at 494-495, 462 N.W.2d 44 (Riley, C.J., dissenting).

We are aware that in extending the doctrine of lost opportunity to cases not involving death

there can be many gradations in the level of improved recovery through the use of the proper diagnosis and treatment. That is, with the proper...