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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________
C hief Justice

Opinion
Plaintiff-Appellees,
and
BLUE CROSS/BLUE SHIELD,
Intervening Plaintiff,
v

Maura D. Cor rigan

Justices

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 24, 2001


SANDRA J. WICKENS and DAVID WICKENS,


No. 117731


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.
________________________________ BEFORE THE ENTIRE BENCH
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 MCL 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 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. Defendant FACTS
AND

PROCEEDINGS
System operates an


Oakwood

Healthcare

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, forty-eight, and her breast


1 Plaintiff David Wickens' claim is derivative in nature.
For the sake of simplicity, we refer to Sandra Wickens as
"plaintiff."


2


tissue density. months.


She was told to get a repeat mammogram in six


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
3


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 chance of surviving ten
years if the cancer involved three lymph nodes. On cross

examination, 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 MCL 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%.
4


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 calculated plaintiff's loss at only Because defendants
percent, they


forty

contended that she therefore could not prove that she lost a
greater than fifty percent opportunity to survive, as required
by

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Michigan Law