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Michigan Supreme Court Lansing, Michigan

Opinion
CARL STONE and NANCY STONE, Plaintiffs-Appellees, v DAVID A. WILLIAMSON, M.D., JACKSON RADIOLOGY CONSULTANTS, P.C., and W. A. FOOTE MEMORIAL HOSPITAL, Defendants-Appellants.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 24, 2008

No. 133986

BEFORE THE ENTIRE BENCH TAYLOR, C.J. In this case, the Court is called on to examine the doctrine of "lost opportunity" set forth in MCL 600.2912a(2), which prohibits recovery for the loss of an opportunity to survive or achieve a better result unless the opportunity was greater than 50 percent, and the construction of that statute in Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002). The Court of Appeals in this case considered the aggregate of complications plaintiff faced and concluded that plaintiff satisfied the statute, using Fulton's requirement that the difference between his chance of a better result without malpractice and his chance

of a better result despite the alleged malpractice was greater than 50 percentage points. I conclude that the second sentence of MCL 600.2912a(2) does not apply to this case. Moreover, I believe the second sentence is unenforceable because it provides no guidance regarding its meaning or how courts are to apply it. A medical-malpractice plaintiff must prove that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant. Because the evidence presented at trial would support the jury's

verdict under my analysis, I conclude that there is no need to conduct a new trial and would therefore affirm the result of the Court of Appeals judgment but not its analysis. I. FACTS AND PROCEEDINGS Plaintiff suffered the rupture of an abdominal aortic aneurysm that had gone undetected despite physical examinations and testing by a number of physicians.1 He underwent emergency surgery to repair the rupture, but, in part because of preexisting conditions, amputation of both legs at mid-thigh was ultimately necessary. After surgery, plaintiff continued to experience multiple organ failure and other complications, including acute renal failure, sepsis, rhabdomyolysis, osteomyelitis, recurrent pancreatitis, and depression. His home

Throughout this opinion, "plaintiff" refers to Carl Stone; the claim of his wife, Nancy Stone, is derivative in nature.

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required structural changes to accommodate his wheelchair and specialized needs, and his wife quit her employment to assist with his daily care needs. Plaintiff brought a medical-malpractice suit against the radiologist and two vicariously liable entities on the theory that a negligent diagnosis resulted in the rupture and all resulting harm. At the jury trial, plaintiff presented experts who testified that, had the aneurysm been properly diagnosed, elective surgery could have been performed. Such elective surgery would have greatly increased

plaintiff's chance of a better medical outcome, including a reduction of the risk of amputation and other health complications. Plaintiff's medical experts testified that a patient having elective surgery to repair an aortic aneurysm has a 95 percent chance of attaining a good result, which includes surviving the rupture, as well as avoiding additional medical complications. In contrast, misdiagnosed patients whose aneurysms rupture have only a 10 percent chance to achieve a good result. Specifically, the experts opined that 80 percent of patients with a rupture of an aortic aneurysm die, either en route to obtain medical care or during the emergency surgery. Of the 20 percent of patients with ruptures who manage to survive, 40 to 50 percent have some form of complication. This contrasts

markedly with those undergoing elective repair, who face less than a 5 percent risk of dying or suffering serious complications. Defendants argued that the risk of death should be factored out because plaintiff avoided it and that the risk of complications other than death was 5 to 12 percent for elective surgery and up to 40 percent for emergency surgery. Taking 3


the numbers most favorable to plaintiff, 5 and 40, defendants argued that the difference was at best 35 percent. The specific risk of amputation suffered by plaintiff was 1 percent for elective surgery and 5 percent for emergency surgery: a paltry difference of 4 percent. The trial court disagreed with defendants' theory, however, and instructed the jury to consider the aggregate risk of complications. The jury returned a verdict in favor of plaintiff for a total amount of $2,327,835. Following reduction for the damages cap2 and collateral sources, the court entered a judgment in the amount of $1,936,682, of which $1,640,800 was for the verdict and the remainder was for interest, costs, and attorney fees. The trial court denied defendants' postjudgment motions for a new trial and judgment notwithstanding the verdict. The Court of Appeals affirmed in an unpublished opinion per curiam, issued April 17, 2007 (Docket No. 265048). On the issue of "loss of opportunity," it agreed with the trial court that plaintiff had met the requirements of the statute because he had gone from a 95 percent chance of attaining a good result to a 10 percent chance of attaining a good result. Id. at 5. The Court considered the aggregate of all the increased risks that plaintiff faced as a result of the alleged malpractice and applied the Fulton formula to that aggregate risk.

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MCL 600.1483.

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This Court granted leave to appeal, directing the parties to address (1) whether the requirements set forth in the second sentence of MCL 600.2912a(2) apply in this case; (2) if so, whether the "loss of an opportunity to survive or an opportunity to achieve a better result" should be determined by considering the aggregate increased risk posed by the alleged malpractice, including risks associated with injuries that the patient did not suffer and any increased risk of death, or whether the only consideration should be the increased risk of the specific injury or injuries suffered by the patient; (3) whether Fulton v William Beaumont Hosp, 253 Mich App 70 (2002), was correctly decided, or whether a different approach is required to correctly implement the second sentence of

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