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

• Citation: 619 N.W.2d 7,242 Mich. App. 385
• Decision Date: 31 October 2000
• Docket Number: Docket No. 221927.
• 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.
• Court: Court of Appeal of Michigan (US)

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.

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.

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 N.W.2d 222. A directed verdict is appropriate only when no factual questions exist on which reasonable minds could differ. Id. at 644, 609 N.W.2d 222. Neither the trial court nor this Court may substitute its judgment for that of the jury. Hunt v. Freeman, 217 Mich.App. 92, 99, 550 N.W.2d 817 (1996). Moreover, directed verdicts are viewed with disfavor in negligence cases. Id. Statutory interpretation is a question of law that is also reviewed de novo on appeal. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998).

The primary purpose of statutory interpretation is to ascertain and effectuate the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). When determining the intent of the Legislature, this Court must first look to the specific language of the statute. People v. Borchard-Ruhland, 460 Mich. 278, 284, 597 N.W.2d 1 (1999). If the plain and ordinary meaning of the statute's language is clear, judicial construction is inappropriate. Id. However, if reasonable minds can differ regarding the statute's meaning, judicial construction is appropriate. Adrian School Dist. v. Michigan Public School Employees' Retirement System, 458 Mich. 326, 332, 582 N.W.2d 767 (1998). With these principles in mind, we look at the language of the statute governing a plaintiff's recovery for loss of an opportunity to survive in a malpractice action, M.C.L. § 600.2912a(2); MSA 27A.2912(1)(2). MCL 600.2912a(2); MSA 27A.2912(1)(2) governs the burden of proof requirements with respect to medical malpractice actions and 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%. [Emphasis added.]

The question before this Court is whether the statute allows for recovery when the initial opportunity to survive before the alleged malpractice is greater than fifty percent, as argued by plaintiffs, or, rather, if the statute only allows for recovery when the difference between the opportunity to survive before and after the alleged malpractice is greater than fifty percent, as defendants contend. We agree with plaintiffs' interpretation.

In Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990), rev'd in part on other grounds 437 Mich. 926, 467 N.W.2d 25 (1991), superseded by statute as stated in Weymers v. Khera, 454 Mich. 639, 563 N.W.2d 647 (1997), the plaintiff suffered from a fatal amniotic fluid embolism during the birth of her child. The plaintiff's expert witness stated that had an intravenous line been connected to the plaintiff before the onset of the embolism, the plaintiff would have had a 37.5 percent chance of survival. Falcon, supra at 454-455, 462 N.W.2d 44. The Supreme Court held that the loss of a 37.5 percent chance of living was actionable under Michigan law. Id. at 470, 462 N.W.2d 44. In 1993, however, the Legislature amended M.C.L. § 600.2912a; MSA 27A.2912(1) by adding subsection 2. The amendment was a rejection of Falcon and the lost opportunity doctrine discussed in that case. Weymers, supra at 649, 563 N.W.2d 647.

In Weymers, supra at 650-651, 563 N.W.2d 647, the Supreme Court discussed Falcon and the lost opportunity doctrine. The Court noted, "Stated another way, the lost opportunity doctrine permits a plaintiff to maintain an action for malpractice when the malpractice denied the plaintiff an opportunity to avoid the injury, even where the opportunity was fifty percent or less." Id. at 648, n. 13, 563 N.W.2d 647. The Court stated that there are three alternative approaches to the lost opportunity doctrine: (1) the pure lost chance approach, (2) the proportional approach, and (3) the substantial possibility approach. Id. at 650, 563 N.W.2d 647. The Court further explained that each approach lowers the standard of causation and allows a plaintiff to recover without establishing cause in fact. Id. The Court stated the following with respect to the substantial possibility approach:

The last approach, the substantial possibility approach, was adopted by this Court in Falcon for wrongful death cases. It also is a variation of the pure lost chance approach. Under this approach, the plaintiff must show that there is a substantial possibility that the defendant's negligence caused his

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