Wickens v. Oakwood Healthcare System, Docket No. 117731, Calendar No. 11.

• Court: Supreme Court of Michigan
• Writing for the Court: YOUNG, J.
• Citation: 631 N.W.2d 686,465 Mich. 53
• Docket Number: Docket No. 117731, Calendar No. 11.
• Decision Date: 24 July 2001
• Parties: Sandra J. WICKENS and David Wickens, Plaintiff-Appellees, and Blue Cross/Blue Shield, Intervening Plaintiff, v. OAKWOOD HEALTHCARE SYSTEM, an assumed name for Oakwood Healthcare, Inc., Belleville Health Care Center, an assumed name for Oakwood Healthcare Inc., Dr. Christopher Pabian and Oakwood Healthcare Center-Canton, an assumed name for Oakwood Healthcare, Inc., Defendants-Appellants, and Dr. Patricia Nester, Defendant.

631 N.W.2d 686
465 Mich. 53

Sandra J. WICKENS and David Wickens, Plaintiff-Appellees, and
Blue Cross/Blue Shield, Intervening Plaintiff,
v.
OAKWOOD HEALTHCARE SYSTEM, an assumed name for Oakwood Healthcare, Inc., Belleville Health Care Center, an assumed name for Oakwood Healthcare Inc., Dr. Christopher Pabian and Oakwood Healthcare Center-Canton, an assumed name for Oakwood Healthcare, Inc., Defendants-Appellants, and
Dr. Patricia Nester, Defendant

Docket No. 117731, Calendar No. 11.

Supreme Court of Michigan.

Argued March 8, 2001.

Decided July 24, 2001.

631 N.W.2d 687

Lopatin, Miller, Freedman, Bluestone, Herskovic & Domol (by Barbara H. Goldman and Richard E. Shaw), Southfield, MI, for plaintiffs-appellees

Willmarth, Tanoury, Ramar, Corbet, Garves & Shaw (by Anthony J. Paradiso, Elizabeth L. Sokol, and Daniel R. Corbet), Detroit, MI, for defendants-appellants.

Fraser, Trebilcock, Davis & Dunlap, P.C. (by Graham K. Crabtree), Lansing, MI, for amicus curiae ProNational Insurance Company and MHA Insurance Company.

Opinion

YOUNG, J.

The trial court directed a verdict in this medical malpractice case in defendants' favor on the basis that plaintiff's claim was barred by M.C.L. § 600.2912a(2), which precludes recovery for "loss of an opportunity to survive" unless the "opportunity was greater than 50%." We hold that a living person may not recover for loss of an opportunity to survive, and that plaintiff's claim is therefore barred to the extent that it is based on such loss of opportunity. We further hold that the trial

631 N.W.2d 688

court nevertheless erred in dismissing plaintiff's case in its entirety, because she has made additional claims that are independent of her claim for loss of an opportunity to survive. Accordingly, we reverse in part and vacate in part the opinion of the Court of Appeals and remand this matter to the trial court for further proceedings consistent with this opinion

I. FACTS AND PROCEEDINGS

Defendant Oakwood Healthcare System operates an outpatient medical clinic where plaintiff Sandra Wickens¹ consulted defendant Dr. Christopher Pabian regarding a lump in her right breast. Dr. Pabian referred plaintiff for a mammogram that Oakwood personnel administered and interpreted in April 1995. The interpreter reported that the breast tissue had abnormalities, but that they were not cause for alarm because of plaintiff's age, fortyeight, and her breast tissue density. She was told to get a repeat mammogram in six months.

In November 1995, plaintiff tried to get the repeat mammogram, but Oakwood personnel incorrectly told her that her insurance would not pay for a second mammogram within twelve months. Plaintiff waited the additional six months and had another mammogram in May 1996, when the interpreter spotted a mass in the right breast and recommended a biopsy. The biopsy, performed two weeks later, revealed a malignancy.

On May 29, 1996, plaintiff underwent a mastectomy to remove her right breast and the adjacent lymph nodes. The malignant lump in her breast measured about six centimeters in diameter. Nine of the thirteen lymph nodes contained malignant tissue, indicating a substantial probability that the cancer had spread. Plaintiff underwent postsurgery chemotherapy and radiation treatments to minimize any chance of spreading.

In January 1997, plaintiff consulted doctors about a lump in her left breast. Although no malignancy was detected, plaintiff underwent a mastectomy to remove her left breast. That was followed with chemotherapy and radiation treatments.

Plaintiff filed this medical malpractice suit in September 1997, alleging that the one-year delay in diagnosing her cancer constituted medical malpractice by the defendants. She alleged that the defendants' malpractice had caused her to suffer a poorer prognosis of cure or long-term survival, a reduction in the quality of life and life expectancy, the need to undergo more radical intervention than would have been necessary a year earlier, and pain and suffering.

Both parties deposed plaintiff's expert, Dr. David Schapira, an oncologist. Dr. Schapira testified that the malignant lump in plaintiff's right breast would most likely have measured less than two centimeters in April 1995; that at that time fewer than nine of plaintiff's lymph nodes, probably between one and three, would have been affected by the cancer; and that it was generally regarded that appropriate treatment for a cancerous condition of that type would consist of a lumpectomy and radiation therapy, rather than a mastectomy. Moreover, according to Dr. Schapira, plaintiff's probability of living ten years after the 1996 diagnosis was fifteen percent. If plaintiff's breast cancer had been diagnosed in April 1995, she would have had (1) a seventy percent chance of surviving ten years if the cancer involved only one lymph node, or (2) a fifty-five percent

631 N.W.2d 689

chance of surviving ten years if the cancer involved three lymph nodes. On crossexamination, Dr. Schapira opined that plaintiff's cancer had likely affected two or three lymph nodes in 1995

Defendants filed a motion in limine for a directed verdict, arguing that according to Dr. Schapira's testimony, plaintiff could not meet the requirements of M.C.L. § 600.2912a(2). Section 2912a(2) 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%.

Defendants argued that Dr. Schapira's testimony showed that any malpractice by defendants reduced plaintiff's probability of surviving ten years by forty percent.² Because defendants calculated plaintiff's loss at only forty percent, they contended that she therefore could not prove that she lost a greater than fifty percent opportunity to survive, as required by § 2912a(2).

The trial court agreed and granted defendants' motion, dismissing plaintiff's entire case.

The Court of Appeals reversed, holding that § 2912a(2) only requires that the plaintiff demonstrate that had the defendant not been negligent, there was a greater than fifty percent opportunity to survive.³ Additionally, the Court of Appeals held that plaintiff satisfied § 2912a(2) by presenting expert testimony that she would have had a fifty-five to seventy percent chance of surviving ten years if her cancer had been diagnosed in April 1995. The panel further ruled that the trial court should not have dismissed plaintiff's case in its entirety:

Plaintiffs further argue that the trial court erred in not allowing this case to proceed to trial on their claim that, as a result of defendants' negligence, Wickens was deprived of the opportunity for a better result. We agree. Pursuant to MCR 2.515, a "party may move for a directed verdict at the close of the evidence offered by an opponent. The motion must state specific grounds in support of the motion." ... Thus, the trial court erred in dismissing plaintiffs' entire cause of action without affording plaintiffs the opportunity to present their case at trial. Furthermore, the trial court's dismissal of plaintiffs' entire cause of action was erroneous because defendants merely discussed plaintiffs' claim for loss of opportunity to survive in their motion for directed verdict. [242 Mich.App. at 393, 619 N.W.2d 7.]

We granted defendants' application for leave...