Lanigan v. Huron Valley Hospital, Inc
Lanigan v. Huron Valley Hospital, Inc
Concurring Opinion
(concurring). I fully concur with the reasoning and result announced by the majority in this case. I write separately to observe that had the complaint articulated solely a lost-opportunity claim, it would be incumbent on this Court to invoke the conflict provisions of MCR 7.215(J). As my colleagues today acknowledge, all seven justices who decided Stone v Williamson, 482 Mich 144, 164; 753 NW2d 106 (2008) (opinion by TAYLOR, C.J.), rejected the analysis set forth in Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002). Because Fulton’s central holding clearly lacks the support of a majority of our Supreme Court, this Court should not hesitate to critically reexamine Fulton when presented with an appropriate case.
Opinion of the Court
In this medical malpractice case, plaintiff Jayne Lanigan claims that defendants Huron Valley Hospital, Inc. (Huron Valley), and Steven D.
I. FACTS
Around 9:00 a.m. on September 8, 2004, plaintiff experienced difficulty breathing while jogging and she collapsed. A bystander called 911 and an ambulance transported plaintiff to Huron Valley. When plaintiff arrived at Huron Valley at approximately 9:40 a.m., she complained of chest pains, shortness of breath, and nausea. An initial electrocardiogram (EKG) revealed a possible septal wall infarct, or heart attack. Given plaintiffs medical history and presentation — she was then 41 years old, athletic, and had no history of heart disease — the emergency room physician initially believed plaintiff had a pulmonary embolism. This diagnosis, however, was ruled out after a computerized axial tomography (CAT) scan of plaintiffs thorax at approximately 10:30 a.m. Plaintiff continued to suffer from severe respiratory distress and her condition worsened.
Given plaintiffs status, Dr. Belen, a cardiac specialist, was summoned, and he saw plaintiff at approximately 10:45 a.m. Pursuant to Dr. Belen’s order, plaintiff had a 2-D echocardiogram,
Before administering any thrombolytic therapy, or drugs used to break down blood clots, for the treatment of a heart attack, Dr. Belen ordered a CAT scan of plaintiffs head at 2:15 p.m. Dr. Belen was concerned that plaintiff may have suffered from an aneurysm because of her history of a closed head injury, which could contraindicate any thrombolytic therapy. If the CAT scan was negative, plaintiff was to be administered Retavase, a thrombolytic drug intended to improve ventricle functioning after a heart attack. The results of the CAT scan were negative and plaintiff was administered Retavase at 5:00 p.m. Dr. Belen believed that plaintiff might stabilize as a result of the Retavase and that a transfer would not be necessary. However, plaintiffs condition did not stabilize and Dr. Belen then decided to transfer plaintiff to a hospital equipped to perform emergency bypass surgery.
Plaintiff was transferred to Beaumont Hospital (Beaumont), arriving at approximately 10:30 p.m.
Plaintiff then filed this lawsuit. In her complaint, plaintiff alleged that defendants’ actions breached the applicable standard of care, thus causing plaintiff to lose an opportunity for a better result, i.e., receiving a cardiac bypass and a longer life expectancy as opposed to a heart transplant and a shorter life expectancy, and, in addition, causing plaintiff direct harm. In contending that defendants failed to timely diagnose the heart attack, timely order thrombolytic therapy, and timely transfer her to a facility capable of emergency cardiac intervention, plaintiff alleged in her complaint:
25. That Plaintiff Jayne Lanigan sustained personal injuries as a direct and proximate result of Defendant’s [sic] negligence and malpractice as herein alleged.
27. That at all time material herein, due to the negligence of the Defendant [sic], their agents, servants and/or employees, either real or ostensible, Plaintiff lost an opportunity to survive and/or an opportunity to achieve a better result that was greater than 50%.
Defendant Dr. Belen moved for summary disposition, with which Huron Valley concurred, arguing that no material factual dispute exists that plaintiff did not suffer a lost opportunity to achieve a better result greater than 50 percent.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion for summary disposition based on lack of a material factual dispute is properly granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10); Rice v Auto Club Ins Ass’n, 252 Mich App 25, 31; 651 NW2d 188 (2002). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In deciding a motion under MCR 2.116(C)(10), we must consider all the evidence, affidavits, pleadings, and admissions in the light most favorable to the nonmoving party. Rice, supra at 30-31.
III. STATISTICAL EVIDENCE
Before reaching the substance of plaintiffs lost-opportunity claim, we first briefly consider plaintiffs argument that defendants presented misleading statistics to the trial court.
TV. LOST-OPPORTUNITY CLAIM
Next, with respect to plaintiffs lost-opportunity claim, plaintiff argues that the trial court improperly
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.]
Much confusion exists regarding the meaning of the last sentence of this provision. In Fulton v William Beaumont Hosp, 253 Mich App 70, 77-78; 655 NW2d 569 (2002), this Court examined whether the second sentence requires a plaintiff “to show only that the initial opportunity... before the alleged malpractice was greater than fifty percent... or, instead, that the
More recently, our Supreme Court interpreted the meaning of MCL 600.2912a(2) in a plurality decision, Stone v Williamson, 482 Mich 144; 753 NW2d 106 (2008), in which all the justices expressed a belief that Fulton was wrongly decided, albeit for different reasons. Id. at 164 (TAYLOR, C.J.). Chief Justice TAYLOR, joined by Justices CORRIGAN and YOUNG, concluded that lost-opportunity claims do not exist because the second sentence of MCL 600.2912a(2) is so incomprehensible that it is judicially unenforceable and, further, because the Legislature reinstated the traditional elements of medical malpractice when it amended the statute after the Supreme Court adopted the lost-opportunity doctrine in Falcon, supra. Stone, supra at 160-162 (TAYLOR, C.J.). Justice CAVANAGH, joined by Justices WEAVER and Kelly, concluded that the Legislature did not reject the lost-opportunity doctrine; rather, its post -Falcon amendment merely established a threshold for lost-opportunity claims. Id. at 169-170 (CAVANAGH, J.). Further, when read in light of the Court’s decision in Falcon, Justice CAVANAGH opined that the “injury” referred to in the second sentence of the statute is the lost opportunity itself, and the opportunity to be measured
In the present matter, Dr. Wohlgelernter testified in his deposition that patients in cardiogenic shock only have a 30 percent chance of survival. Plaintiffs other expert, Dr. Douglas Zusman, testified that plaintiffs 10-year survival rate after her heart transplant is 65 percent. Given these statistics, defendants assert that plaintiffs chances of survival actually increased rather
Even were we to construe Dr. Wohlgelernter’s testimony regarding the likelihood that plaintiff would have avoided a heart transplant under a loss of opportunity analysis, Dr. Wohlgelernter’s nonquantitative statements convey a greater than 50 percent chance of a better result. In fact, the statement that plaintiff “would have suffered little or no functional deficitD” had she received a bypass rather than a heart transplant, is tantamount to a nearly 100 percent better result, i.e., maintaining one’s own heart and living an unaffected life pre-malpractice. As a result of defendants’ alleged malpractice, plaintiff had no chance (zero
Given the conflicting interpretation of the statistics in this case, we are of the view that a genuine issue of material fact exists because reasonable minds could differ with regard to the meaning of the statistics. Gen Motors Corp, supra at 183. Therefore, we conclude that the matter is most appropriate for the jury to decide. Accordingly, summary disposition for defendants was improper and we reverse the trial court’s order.
V TRADITIONAL MEDICAL MALPRACTICE CLAIM
Lastly, plaintiff argues that her claim is a traditional medical malpractice claim and that we should consider it as such. Indeed, in light of our Supreme Court’s decision in Stone, before analyzing a case under the lost-opportunity doctrine, we must first determine whether the case, in fact, presents a lost-opportunity cause of action. Although plaintiffs complaint is no model of clarity, our review of the record indicates that plaintiff sufficiently pleaded an ordinary medical malpractice claim, as well as a lost-opportunity claim, in her complaint below.
Reversed and remanded. We do not retain jurisdiction.
Throughout this opinion, “plaintiff” refers to Jayne Lanigan; the claims of her husband, Greg Lanigan, are derivative in nature.
A 2-D echocardiogram is essentially an ultrasound of the patient’s heart.
Plaintiffs family had requested that she be transferred approximately eight hours earlier.
The motion for summary disposition did not address any allegations of the “traditional” medical malpractice claim, i.e., one that does not involve a claim of lost opportunity.
It is unclear from the trial court’s opinion and order granting summary disposition whether it was swayed by defendants’ interpreta
Relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. It must be material, that is, related to a fact of consequence to the action, and have probative force, that is, have a tendency to make the existence of a fact of consequence to the action more probable or less probable than it would be without the evidence. People v Sabin (After Remand), 463 Mich 43, 57; 614 NW2d 888 (2000).
0We note that a living plaintiff cannot recover for a loss of opportunity to survive under the statute. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 62; 631 NW2d 686 (2001). This is because, under the provision’s plain language, a lost-opportunity claim must include those injuries actually suffered and cannot include the possibility of future injuries, such as death. Id. 60-61. However, this does not preclude courts from considering the plaintiffs risk of death as part of the calculation of the “opportunity to achieve a better result,” as is the case here.
In our view, and given our Supreme Court’s holding in Stone, supra, it would have been helpful had plaintiff pleaded her ordinary negligence and lost-opportunity claims as separate counts in the complaint.
Reference
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- Lanigan v. Huron Valley Hospital, Inc.
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