Wickens v. Oakwood Healthcare System, Docket No. 221927.

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: MARK J. CAVANAGH, J.
• Citation: 619 N.W.2d 7,242 Mich. App. 385
• Parties: Sandra J. WICKENS and David Wickens, Plaintiffs-Appellants, and Blue Cross & Blue Shield, Intervening Plaintiff, v. OAKWOOD HEALTHCARE SYSTEM d/b/a Oakwood Healthcare, Inc., Belleville Healthcare Center d/b/a Oakwood Healthcare, Inc., Oakwood Healthcare Center-Canton d/b/a Oakwood Healthcare, Inc., and Dr. Christopher Pabian, Defendants-Appellees, and Dr. Patricia Nester, Defendant.
• Decision Date: 31 October 2000
• Docket Number: Docket No. 221927.

619 N.W.2d 7
242 Mich. App. 385

Sandra J. WICKENS and David Wickens, Plaintiffs-Appellants, and
Blue Cross & Blue Shield, Intervening Plaintiff,
v.
OAKWOOD HEALTHCARE SYSTEM d/b/a Oakwood Healthcare, Inc., Belleville Healthcare Center d/b/a Oakwood Healthcare, Inc., Oakwood Healthcare Center-Canton d/b/a Oakwood Healthcare, Inc., and Dr. Christopher Pabian, Defendants-Appellees, and
Dr. Patricia Nester, Defendant

Docket No. 221927.

Court of Appeals of Michigan.

Submitted July 19, 2000, at Detroit.

Decided August 29, 2000, at 9:10 a.m.

Released for Publication October 31, 2000.

619 N.W.2d 8

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

Willmarth, Tanoury, Ramar, Corbet, Garves & Shaw (by Anthony J. Paradiso and Elizabeth L. Sokol), Detroit, for the defendants.

Before: HOOD, P.J., and SAWYER and MARK J. CAVANAGH, JJ.

MARK J. CAVANAGH, J.

In this medical malpractice action, plaintiffs, Sandra J. and David Wickens appeal as of right from the July 13, 1999, directed verdict in favor of defendants. We reverse and remand.

On September 18, 1997, plaintiffs filed suit alleging that defendants failed to exercise due care in the treatment and care of plaintiff Sandra J. Wickens (hereinafter Wickens) by failing to properly and timely diagnose Wickens' cancer. Specifically, plaintiffs alleged that defendants' failure to timely diagnose Wickens' cancer resulted in a poorer prognosis of cure and longterm survival, the need for more invasive medical intervention, and undue pain and suffering, and medical expenses.

On June 14, 1999, plaintiffs' expert witness, David Schapira, MD, was deposed by both parties. The deposition was referenced as a trial deposition to be used in lieu of Dr. Schapira's appearance at trial. Dr. Schapira opined that after Wickens' May 1996 diagnosis she had a ten-year survival rate of fifteen percent. He stated that had Wickens' cancer been diagnosed in April 1995, her ten-year survival rate would have been seventy percent if her cancer involved only one lymph node, and fifty-five percent if it involved three lymph nodes. On cross-examination, Dr. Schapira stated the following with respect to the lymph nodes:

Q. Okay, I want to understand your testimony about the lymph nodes. Your opinion that if a diagnosis was made in April of '99, the status of her cancer, April of '95.

A. Right.

Q. Would have involved possibly one to three—

A. Right.

Q. —nodes. Based on the way you have talked about it would it be a fair characterization as to the number of nodes that it's equally likely that it was one or three? You just can't say?

A. Yes. In fact, I might even say the trend might be towards two or three as opposed to one. I already sort of ruled out none.

619 N.W.2d 9

On the basis of Dr. Schapira's testimony, defendants filed a motion for a directed verdict. Defendants argued that given Dr. Schapira's alternative possible theories, Wickens' lost opportunity to survive was between fifty-five and forty percent. Defendants arrived at this range by subtracting Wickens' actual fifteen percent ten-year survival rate from the ten-year survival rate Wickens would have had if her cancer had been diagnosed in April 1995 (seventy percent with one lymph node involved and fifty-five percent with three lymph nodes involved). Defendants argued that, given Dr. Schapira's opinion that it was more likely than not that Wickens had more than one lymph node involved at the time of the alleged failure to diagnose in April 1995, plaintiffs could not prove that Wickens lost greater than a fifty percent opportunity to survive as required by statute

At the motion proceeding, defendants contended that because Dr. Schapira could not testify that Wickens had suffered a loss of opportunity to survive amounting to greater than fifty percent, plaintiffs were unable to satisfy the requirements of M.C.L. § 600.2912a(2); MSA 27A.2912(1)(2). Plaintiffs argued that subsection 2912a(2) did not require that the computed lost opportunity be in excess of fifty percent, but, rather, only that the initial opportunity to survive be in excess of fifty percent. The trial court agreed with defendants and granted their motion for a directed verdict.

The question at issue in this case is whether the circuit court erred in granting defendants' motion for a directed verdict after holding that plaintiffs failed to meet the requirements of M.C.L. § 600.2912a(2); MSA 27A.2912(1)(2) because Wickens' lost opportunity to survive, measured as the difference between the opportunity if no negligence had occurred and the opportunity after the negligence occurred, was not greater than fifty percent. A trial court's ruling with respect to a motion for a directed verdict is reviewed de novo on appeal. Thomas v. McGinnis, 239 Mich.App. 636, 643, 609 N.W.2d 222 (2000). In reviewing the trial court's ruling, this Court views the evidence presented up to the time of the motion in the light most favorable to the nonmoving party, grants that party every reasonable inference, and resolves any conflict in the evidence in that party's favor to decide whether a question of fact existed. Id. at 643-644, 609...