HATHAWAY, J.
This case addresses the burden of proof necessary to establish proximate causation in a traditional medical malpractice action. At issue is whether the Court of Appeals properly reversed the trial court's denial of summary disposition. The trial court ruled that plaintiff had established a question of fact on the issue of proximate causation sufficient to withstand a motion for summary disposition. The Court of Appeals reversed. It treated plaintiff's claim as a loss-of-opportunity claim instead of a traditional medical malpractice claim and held that plaintiff did not raise a genuine issue of fact, as required by Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002), because plaintiff could not prove that receiving the alleged appropriate treatment would have decreased his risk of stroke by greater than 50 percentage points. We disagree with the Court of Appeals' analysis and conclusion.
We hold that the Court of Appeals erred by relying on Fulton and determining that this is a loss-of-opportunity case controlled by both the first and second sentences of MCL 600.2912a(2), and instead hold that this case presents a claim for traditional medical malpractice controlled only by the first sentence of § 2912a(2). Further, we conclude that plaintiff established a question of fact on the issue of proximate causation because plaintiff's experts opined that defendants' negligence more probably than not was the proximate cause of plaintiff's injuries. Finally, we hold that Fulton did not correctly set forth the burden of proof necessary to establish proximate causation for traditional medical malpractice cases as set forth in § 2912a(2). Therefore, we overrule Fulton to the extent that it has led courts to improperly designate what should be traditional medical malpractice claims as loss-of-opportunity claims and has improperly transformed the burden of proof in a traditional malpractice case from a proximate cause to the proximate cause.
Accordingly, we reverse the judgment of the Court of Appeals and remand this matter to the Court of Appeals for consideration of the issue not decided on appeal in that court.
This case involves allegations of negligence in medical care. Plaintiff had an illness known as sickle cell anemia. Plaintiff developed acute chest syndrome (ACS), which is a known complication of sickle cell anemia. Plaintiff claims that his ACS was misdiagnosed as pneumonia and as a consequence he did not receive the correct treatment. Plaintiff's experts opined that ACS requires treatment with an aggressive blood transfusion or an exchange transfusion, either of which needs to be given on a timely basis. While plaintiff ultimately received a transfusion, his experts opined that it was given too late and as a consequence, plaintiff suffered a disabling stroke. Plaintiff alleged that defendants' failure to provide a timely transfusion violated the standard of care and that defendants' negligence was a proximate cause of his disabling stroke. Plaintiff's complaint pled a traditional malpractice claim and did not plead a claim for lost opportunity.
In support of his position, plaintiff offered two expert hematologists who testified that defendants' violations of the standard of care more probably than not caused plaintiff's injuries. Plaintiff's third hematology expert explained his opinion in statistical terms and testified that a patient with ACS has a 10 to 20 percent chance of developing a stroke. He further testified that with a timely exchange transfusion, the risk of stroke is reduced to less than 5 to 10 percent.
Defendants brought a motion for summary disposition challenging the sufficiency of plaintiff's expert testimony on the issue of proximate causation. Even though plaintiff's complaint pled only traditional malpractice, defendants' motion made no distinction between the proof required for proximate causation in a traditional malpractice claim and the burden required for a claim based on loss of opportunity. Instead, defendants argued that plaintiff's case was controlled by both the first and second sentences of MCL 600.2912a(2), which requires that the plaintiff prove "that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants" and that "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%."
Defendants argued that a reduction in the risk of stroke from 10 to 20 percent to less than 5 to 10 percent amounted to at best a 20 percentage point differential,
The Court of Appeals based its decision entirely on Fulton and reversed the trial court in an unpublished opinion per curiam, holding that this case presented a claim for a loss of opportunity and that plaintiff had not met his burden of proof under MCL 600.2912a(2).
We granted leave to review this matter, asking the parties to brief:
This case involves review of a trial court's decision on a motion for summary disposition which this Court reviews de novo.
At issue is whether the Court of Appeals properly reversed the trial court's denial of summary disposition on the issue of proximate causation. In order to answer this question we must review MCL 600.2912a.
MCL 600.2912a provides:
This statute, which governs the burden of proof in medical malpractice cases, was originally added to the Revised Judicature Act in 1977. It has been amended on several occasions, with the most recent amendment in 1993 adding subsection (2), which is at issue in this case. Subsection (2) contains two sentences. It is undisputed that the first sentence, which repeats the burden of proof as articulated in subsections (1)(a) and (b), merely reiterates the longstanding rule requiring a plaintiff to prove "that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants." MCL 600.2912a(2).
The second sentence of § 2912a(2) addresses a subcategory of injuries in medical malpractice litigation governed by the loss-of-opportunity doctrine. The Legislature did not define the phrase "loss of an opportunity to survive or an opportunity to achieve a better result." However, while not defined in the statute, the doctrine was initially recognized and defined in Michigan in Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990).
It is generally accepted that the 1993 amendment to § 2912a was adopted in a direct reaction to Falcon, meaning that it repudiated Falcon's reduced proximate causation theory.
We next turn to the correct interpretation of both sentences of § 2912a(2) and their applicability to the case before us. In examining the first line of § 2912a(2), we are guided by the principle that nothing in § 2912a(2) has changed the burden of proof for traditional medical malpractice claims. The language of the first line of subsection (2) is clear: "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." This language reiterates the language of the previous subsections and merely restates the well-accepted, well-established historical rule for proximate causation.
The proper interpretation of proximate causation in a negligence action is well-settled in Michigan. In order to be a proximate cause, the negligent conduct must have been a cause of the plaintiff's injury and the plaintiff's injury must have been a natural and probable result of the negligent conduct. These two prongs are respectively described as "cause-in-fact" and "legal causation." See Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994); Sutter v Biggs, 377 Mich 80; 139 NW2d 684 (1966); Glinski v Szylling, 358 Mich 182; 99 NW2d 637 (1959). While legal causation relates to the foreseeability of the consequences of the defendant's conduct, the cause-in-fact prong "generally requires showing that `but for' the defendant's actions, the plaintiff's injury would not have occurred." Skinner, 455 Mich at 163. It is equally well-settled that proximate causation in a malpractice claim is treated no differently than in an ordinary negligence claim, and it is well-established that there can be more than one proximate cause contributing to an injury. Brisboy v Fibreboard Corp, 429 Mich 540; 418 NW2d 650 (1988); Barringer v Arnold, 358 Mich 594; 101 NW2d 365 (1960); Gleason v Hanafin, 308 Mich 31; 13 NW2d 196 (1944). Finally, it is well-established that the proper standard for proximate causation in a negligence action is that the negligence must be "a proximate cause" not "the proximate cause." Kirby v Larson, 400 Mich 585; 256 NW2d 400 (1977). Thus, the burden of proof for proximate causation in traditional medical malpractice cases is analyzed according to its historical common law definitions and the analysis is the same as in any other ordinary negligence claim. Nothing in this opinion changes or alters these well-settled principles.
We next consider whether the Court of Appeals erred by relying on Fulton and applying the second sentence of § 2912a(2) to the present case. The second sentence of § 2912a(2) provides "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%." Since the statute was amended in 1993, litigants and the courts have debated the meaning of this second sentence.
Fulton involved a claim for the failure to timely diagnose cervical cancer. The plaintiff, the personal representative of the decedent's estate, alleged that if decedent's cancer had been diagnosed during her pregnancy, she would have had treatment options available that could have saved her life. The theory was that the decedent was not diagnosed until her cancer was untreatable and, as a consequence, she died. The plaintiff's expert's testimony on proximate causation was described by the Court of Appeals as follows:
Fulton opined that because the decedent went from an 85 percent pre-malpractice chance of survival to a 60-65 percent post-malpractice chance of survival, she "suffered a loss of a twenty to twenty-five percent chance of survival."
Fulton's simplistic subtraction formula is not an accurate way to determine whether a defendant's malpractice is a proximate cause of the injury. Fulton's analysis was erroneous because it misconstrued proximate causation as it applies to a traditional malpractice case. Under the Fulton subtraction formula it is mathematically impossible for there to be more than one proximate cause. Thus, in creating and applying this simplistic formula, Fulton fundamentally altered plaintiff's burden of proof. Fulton transformed the burden of proof in traditional malpractice cases from a proximate cause to the proximate cause because it allows for only one proximate cause in any case. This proposition is in error because it has no basis in statute or common law and it is inconsistent with the clear and unambiguous language of the first sentence of § 2912a(2). Moreover, as the Court of Appeals' decision in this case illustrates, Fulton's analysis is being applied to all malpractice cases, even when they are pled only as traditional malpractice cases.
The Court of Appeals analysis in the present case perpetuates the Fulton doctrine and the confusion surrounding proximate causation in medical malpractice claims. Much of the confusion stems from the inherent nature of medical malpractice: the plaintiff is generally seeking treatment for a preexisting medical condition that is causing a problem of some sort on its own, whereas in an ordinary negligence claim the plaintiff is generally an otherwise uninjured person who is claiming that the entire injury was caused by the incident.
In the present case, plaintiff was prepared to offer three expert witnesses to testify on his behalf on the issue of proximate causation at the time of trial. Two of plaintiff's experts unequivocally opined, in a discovery deposition, that had the necessary treatment been given, it was more probable than not that plaintiff would not have had a stroke.
Plaintiff's first expert, Dr. Richard Stein, opined:
After opining that an exchange transfusion was necessary to reduce plaintiff's hemoglobin S concentration to less than 30 percent, Dr. Luce, plaintiff's second expert, opined:
The testimony of the third expert, Dr. Griffin Rodgers, was more specific in expressing the statistics. The trial court summarized his testimony:
As this case demonstrates, the way causation is analyzed is important, especially when reviewing statistical data. In this instance, do these facts represent at best a 20 percent chance to avoid an injury, as the Court of Appeals concluded, or do they establish proximate causation as found by the trial court? To answer this question we must determine whether we use a percentage point differential subtraction analysis (as used by the Court of Appeals in applying the Fulton formula) or whether we follow the approach taken by the trial court. In doing so we must follow the analysis that is most consistent with our historical rules governing proximate causation and the plain language of § 2912a(2), which requires that a plaintiff prove that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants, in the context of this case. While the use of mathematical statistics is not required by the statute, and we do not impose such a requirement, we conclude that the analysis used by plaintiff's experts and the trial court represents the correct approach in this instance because it accurately represents the historical view of proximate causation as expressed in the first sentence of § 2912a(2) based on its application to these facts.
In this case, it is undisputed that with or without treatment plaintiff was more probably than not going to avoid the stroke. In other words, even without treatment it was more probable that plaintiff would not have a stroke. However, plaintiff did have a stroke. If the Fulton 50 percentage point differential subtraction analysis is used, plaintiff cannot proceed with a traditional claim because the failure to provide treatment was not the cause of the injury expressed in percentage point differential terms. As previously indicated, however, the problem is that a 50 percentage point differential subtraction analysis necessarily means that there can only be one cause of an injury. This analysis is not consistent with the historical test for proximate causation, which has always been that the malpractice be a proximate cause rather than the proximate cause.
Applying a 50 percentage point differential subtraction analysis requires that we change the traditional analysis of causation in medical malpractice cases to the one most immediate, efficient, and direct cause of the injury. This, however, is the standard for determining the proximate cause rather than a proximate cause. This approach is simply not in keeping with our historical view of causation.
The Fulton approach is incorrect because it requires a reliance on probabilities and possibilities of things that have not yet occurred, rather than reliance on what has actually occurred. Plaintiff in this case did have a stroke and was injured; his claim is for an existing injury, not just the possibility of one. Plaintiff's injury is no longer a statistical probability, it is a reality. The focus, once he was injured, is on the connection between defendants' conduct and the injury. The relevant inquiry for proximate causation is whether the negligent conduct was a cause of plaintiff's injury and whether plaintiff's injury was a natural and probable result of the negligent conduct. If so, defendants' conduct was a proximate cause, even though there may have been other causes. The analysis for proximate causation is the same whether we are discussing medical malpractice or ordinary negligence. Defendants' conduct in this case meets this standard when the defendants' actual conduct, rather than plaintiff's statistical probability of achieving a better outcome, is the focus of the inquiry.
In this instance, plaintiff suffered an injury that was more probably than not proximately caused by the negligence of defendants. As the trial court properly found, defendants' negligent conduct increased plaintiff's risk of stroke from less than 5 to 10 percent to 10 to 20 percent. When viewed in the light most favorable to plaintiff, the change is from less than 5 percent to 20 percent. As the trial court analyzed, this represents a change that is greater than 50 percent in this instance. The trial court's approach is in keeping with the historical analysis of proximate causation because it involves a comparative analysis, not a simplistic subtraction formula. Determining what is "more probable than not" is inherently a comparative analysis. The proper method of determining whether defendant's conduct more probably than not proximately caused the injury involves a comparative analysis, which is dependent upon the facts and circumstances and expert opinion in a given case.
We conclude that Fulton's simple subtraction analysis is wrong and unsupportable. While § 2912a(2) does not mandate the use of statistics or require any particular mathematical formula, the historic analysis of proximate cause must be followed to wit: the analysis or formulation used cannot require that the cause must be the proximate cause rather than a proximate cause.
No single formula can be dispositive for all cases. In this case if we were to use a standard percentage decrease calculation (meaning that defendants were responsible for 15 percentage points out of the 20 total percentage points of plaintiff's risk of the bad result, so that there is a 15/20 chance or 75 percent chance) defendant's malpractice was a proximate cause of the injury.
It is also important to emphasize that not all traditional medical malpractice cases can or will be expressed in statistical or percentage terms, nor is a plaintiff required to express proximate causation in percentage terms. The plain language of the statute requires that proximate causation in traditional malpractice cases be expressed by showing that the defendant's conduct was more probably than not a cause of the injury, not by statistical or percentage terms.
Given that Fulton used an incorrect mathematical formula and is being used to transform the burden of proof in traditional malpractice cases, we must next decide if it has any continuing validity. We find that it has none in the context of traditional medical malpractice cases. In Stone, all seven justices of this Court recognized that Fulton's analysis was incorrect or should be found to no longer be good law, though their reasons for doing so varied.
We emphasize that we hold that the second sentence of § 2912a(2) applies only to medical malpractice cases that plead loss of opportunity and not to those that plead traditional medical malpractice; we do not address the scope, extent, or nature of loss-of-opportunity claims as that issue is not before us. Significant questions surround such claims.
For all the foregoing reasons, we conclude that the Court of Appeals erred in the present case by reversing the trial court's denial of summary disposition. The case before us presents a traditional malpractice claim. It does not present a claim for loss of opportunity. In traditional malpractice cases, the plaintiff is required to prove that the defendant's negligence more probably than not caused the plaintiff's injury. In this case, the testimony of plaintiff's expert witnesses supports plaintiff's position on proximate causation. While that testimony is not dispositive, it is sufficient to raise a question of fact to defeat a motion for summary disposition, allowing the issue to be adjudicated on the merits by the trier of fact. Finally, we overrule Fulton to the extent that it has led courts to improperly designate what should be traditional medical malpractice claims as loss-of-opportunity claims and has improperly transformed the burden of proof in a traditional malpractice case from a proximate cause to the proximate cause.
Accordingly, we reverse the judgment of the Court of Appeals and remand this matter to the Court of Appeals for consideration of the issue not decided on appeal in that court.
WEAVER, J., concurred with HATHAWAY, J.
CAVANAGH, J. (concurring).
I concur in the result. I agree with the majority that the Court of Appeals' judgment in this case should be reversed because the Court erred by treating this case as a loss-of-opportunity case instead of a traditional medical malpractice case and, as a result, erred by requiring plaintiff to meet the requirements in the second sentence of MCL 600.2912a(2). I further agree that Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002), should be overruled to the extent that courts have relied on it to improperly transform what could be traditional medical malpractice claims into loss-of-opportunity claims.
This case raises the issue of what the proper burden of proof for proximate causation is in medical malpractice cases in which the plaintiff had a preexisting risk of the bad result that occurred, even absent the defendant's alleged negligence. I agree with the lead opinion that the second sentence of MCL 600.2912a(2) is inapplicable to this case because it only applies to loss-of-opportunity claims and this case does not involve a loss-of-opportunity claim. Instead, the key issue in this case is the proper interpretation of the first sentence of MCL 600.2912a(2).
The first sentence of MCL 600.2912a(2) clearly provides that a plaintiff in any medical malpractice case, including a traditional medical malpractice case, bears the burden of showing that it is more probable than not that the plaintiff's injury was proximately caused by the defendant's negligence. Under traditional malpractice law in Michigan, proximate cause includes two prongs: (1) cause in fact and (2) legal, or "proximate," cause.
Under this approach, a court should consider the total risk of the bad result that the plaintiff faced, including the risk caused by the alleged negligence. Then, the court should consider how much of that risk was created by the negligence. If the negligence was responsible for more than half of the total risk of the bad result and the plaintiff suffered that bad result, then the cause-in-fact prong of the proximate cause analysis is met because it is more probable than not that the defendant's negligence was a cause in fact of the bad result.
In adopting this approach, I reject the view that a plaintiff must show that the defendant's negligence increased the plaintiff's risk by more than 50 percentage points, e.g., from 25 percent to 76 percent, or from 10 percent to 61 percent.
In this case, plaintiff presented sufficient facts to establish the cause-in-fact prong of the proximate cause analysis in a traditional medical malpractice claim. Viewing the facts in the light most favorable to plaintiff, plaintiff's expert testified that defendants' alleged negligence increased plaintiff's risk of the bad result, the stroke, from 5 percent to 20 percent. Defendant was thus responsible for 15 percentage points out of the total 20 percentage points of plaintiff's risk of the bad result, meaning that there is a 15/20 chance, or 75 percent chance, that defendant's alleged negligence was a cause in fact of the bad result.
For the foregoing reasons, I concur with the lead opinion that the judgment of the Court of Appeals should be reversed. I would remand the case to the Court of Appeals for further proceedings.
KELLY, C.J., concurred with CAVANAGH, J.
KELLY, C.J. (concurring).
I fully join Justice CAVANAGH's concurring opinion. I write separately because in his dissent (which Justice CORRIGAN joins), Justice YOUNG continues to quote and misleadingly characterize a statement I made nearly two years ago off the bench. Post at 1 (YOUNG, J., dissenting). For my response, I refer the reader to my concurring opinion in Univ of Mich Regents v Titan Ins Co, ___ Mich ___, ___; ___ NW2d ___ (2010) (KELLY, C.J., concurring).
WEAVER, J., (concurring).
I concur fully with and sign Justice HATHAWAY's opinion. I write separately to note that by overruling the Court of Appeals' decision in Fulton, we are not overruling precedent from this Court. Justice YOUNG's dissent, however, attempts to mislead the public into thinking that this Court is overruling such precedent by introducing a discussion of stare decisis into this case.
Justice YOUNG'S dissent lists 12 cases that have been overruled by this Court in the past 18 months. While Justice YOUNG may feel aggrieved by this Court overruling those 12 cases, amongst those cases were some of the most egregious examples of judicial activism that did great harm to the people of Michigan. Those decisions were made by the "majority of four," including Justice YOUNG, under the guise of ideologies such as "textualism" and "judicial traditionalism."
As I stated in my concurrence in Univ of Mich Regents v Titan Ins Co, ___ Mich ___, ___; ___ NW2d ___ (2010), I agree with the sentiment recently expressed by Chief Justice Roberts of the United States Supreme Court in his concurrence to the decision in Citizens United v Fed Election Comm, 558 US ___, ___; 130 S Ct 876, 920; 175 L Ed 2d 753, 806 (2010), when he said that
Chief Justice Roberts further called stare decisis a "principle of policy" and said that it "is not an end in itself." Id. at ____; 130 S Ct at 920; 175 L Ed 2d at 807. He explained that "[i]ts greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent." Id at ____; 130 S Ct at 921; 175 L Ed 2d at 807. It appears that Justice YOUNG does not agree with Chief Justice Roberts.
The consideration of stare decisis and whether to overrule wrongly decided precedent always includes service to the rule of law through an application and exercise of judicial restraint, common sense, and a sense of fairness—justice for all.
MARKMAN, J. (concurring in the result only).
Unlike the majority, I conclude that this is a lost-opportunity case because it is possible that the bad outcome here, i.e., suffering a stroke, would have occurred even if plaintiff had received proper treatment. However, I concur in the result reached by the majority because plaintiff has raised a genuine issue of material fact regarding whether he suffered a greater than 50 percent loss of an opportunity under MCL 600.2912a. Therefore, I agree with the majority that the judgment of the Court of Appeals should be reversed and this case should be remanded to the Court of Appeals for it to consider defendants' remaining issue on appeal, i.e., the admissibility of the expert testimony proffered by plaintiff. However, I strongly disagree with the analysis of the majority and believe that it will lead to confusion and unnecessary litigation.
MCL 600.2912a(2) provides:
In Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002), the Court of Appeals held that a lost-opportunity plaintiff must prove that his loss was greater than 50 percentage points. That is, the difference between the plaintiff's premalpractice chance to achieve a better result and the plaintiff's postmalpractice chance to achieve a better result must be greater than 50 percentage points.
In Stone v Williamson, 482 Mich 144; 753 NW2d 106 (2008), although all seven justices concluded that Fulton was wrongly decided, this Court could not overrule Fulton because, while four justices concluded that Fulton was a lost-opportunity case, six justices concluded that Stone was not a lost-opportunity case. See Stone, 482 Mich at 164 n 14 (opinion by TAYLOR, C.J.) ("[B]ecause a majority of justices hold that this is not a lost-opportunity case, the issue of the correctness of Fulton, cannot be reached, and Fulton's approach remains undisturbed as the method of analyzing lost-opportunity cases.").
Justices CAVANAGH, KELLY, and WEAVER concluded in Stone that if the percentage point difference between the plaintiff's premalpractice opportunity to achieve a better result and his postmalpractice opportunity to achieve a better result was greater than 50 percentage points, the plaintiff could bring a traditional medical-malpractice action. However, if the percentage point difference was 50 points or less, the plaintiff could only bring a lost-opportunity action and would have to prove that his premalpractice opportunity to achieve a better result was greater than 50 percent.
Finally, in Stone, I concluded that a lost-opportunity case is "one in which it is at least possible that the bad outcome would have occurred even if the patient had received proper treatment." Id. at 186 (MARKMAN, J., concurring).
"If this percentage is greater than 50, the plaintiff may be able to prevail; if this percentage is 50 or less, then the plaintiff cannot prevail." Id.
As I observed in Stone, the first problem with Fulton is that it requires a loss of more than 50 percentage points, while MCL 600.2912a(2) requires a loss of more than 50 percent.
As I also observed in my concurring opinion in Stone, Justice CAVANAGH made this same mistake in his concurring opinion in Stone:
I am pleased that Justice CAVANAGH and the other justices who signed his opinion in Stone (Chief Justice KELLY and Justice WEAVER) now apparently recognize this analytical error, and that they now "repudiate" that position. Thus, a majority of the justices of this Court now agree that MCL 600.2912a(2) requires us to determine whether the lost opportunity is "greater than 50%," not whether the lost opportunity is greater than 50 percentage points.
The other problem with Fulton, that Justice CAVANAGH and his colleagues in the majority also now apparently recognize, is that "it does not differentiate between those patients who would have survived regardless of whether they received proper or improper treatment and those patients who needed the proper treatment in order to survive." Id. at 191.
What the Waddell formula essentially does is test the sufficiency of the expert testimony, which is typically presented in the form of two statistics: the likelihood that a patient would have had a good outcome with proper treatment (the "[premalpractice chance]") and the likelihood that a patient would have had a good outcome with negligent treatment (the "[postmalpractice chance]"). The Waddell formula allows a court analyzing this data to determine whether the plaintiff, when the patient has experienced a bad outcome, has created a question of material fact concerning whether proper treatment more likely than not would have made a difference. The formula does this by identifying the universe of patients who would have had a bad outcome (the denominator) and the subset of those patients who could have been favorably treated (the numerator).
As Dr. Waddell has explained:
In the instant case, plaintiff alleged that defendants failed to timely and properly treat his acute chest syndrome, a serious complication of sickle-cell disease, and that, as a result, he suffered a stroke. More specifically, plaintiff alleged that defendants should have performed an exchange blood transfusion in which the patient's abnormal blood is taken out and replaced with normal blood, rather than a simple blood transfusion in which normal blood is simply added to the patient's abnormal blood.
95 - 80 ------- × 100 = 75% 100 - 80
Therefore, plaintiff has raised a genuine issue of material fact regarding whether he suffered a greater than 50 percent loss of an opportunity under MCL 600.2912a(2). For these reasons, I agree with the majority that the judgment of the Court of Appeals should be reversed and this case should be remanded to the Court of Appeals for it to consider defendants' remaining issue on appeal, i.e., the admissibility of the expert witness testimony proffered by plaintiff.
Although I agree with the majority that the Court of Appeals should be reversed, I strongly disagree with its analysis.
On the one hand, the majority concludes that whether the plaintiff's lost opportunity is greater than 50 percent determines whether the plaintiff's action is a lost-opportunity action or a traditional medical-malpractice action. I find this conclusion to be completely illogical. Either the defendant's negligence has caused the plaintiff to suffer the injury, or it has caused the plaintiff to suffer a loss of an opportunity to achieve a better result— the better result being not to suffer the injury. How substantial the plaintiff's lost opportunity is determines whether he satisfies the "greater than 50%" requirement of MCL 600.2912a(2), not whether the plaintiff's action constitutes a lost-opportunity action in the first place. As I stated in Stone:
Because it is possible that the bad outcome in this case, i.e., suffering a stroke, might have occurred even if plaintiff had received proper treatment, the instant case constitutes a lost-opportunity action.
On the other hand, the lead opinion concludes that "the second sentence of § 2912a(2) applies only to medical malpractice cases that plead loss of opportunity, and not to those that plead traditional medical malpractice . . . ." That is, the lead opinion concludes that whether the plaintiff's action constitutes a lost-opportunity action or a traditional medical-malpractice action is a function of whether the plaintiff has used the magic words "lost opportunity" in his pleading. If he did not, the action is a traditional medical-malpractice action and the plaintiff need not concern himself with satisfying the greater-than-50-percent requirement of MCL 600.2912a(2). However, if the plaintiff did use the words "lost opportunity" in his pleading, the action is a lost-opportunity action and the plaintiff must satisfy the greater-than-50-percent requirement of MCL 600.2912a(2). Besides being utterly inconsistent with the majority's own conclusion that a lost opportunity greater than 50 percent determines whether the plaintiff's action constitutes a lost-opportunity action or a traditional medical-malpractice action, it is also inconsistent with the well-established principle that Michigan courts are "not bound by a party's choice of label for its action [because this would] put form over substance . . . ." St. Paul Fire & Marine Ins Co v Littky, 60 Mich App 375, 378-379; 230 NW2d 440 (1975). Instead, as we explained in Maiden v Rozwood, 461 Mich 109, 135; 597 NW2d 817 (1999), "the gravamen of plaintiff's action is determined by considering the entire claim." (Emphasis added.)
Thus, just as whether a plaintiff labels an action as an ordinary negligence action does not control whether that action is, in fact, an ordinary negligence action or a medical-malpractice action, see Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411; 684 NW2d 864 (2004), whether a plaintiff labels an action as a traditional medicalmalpractice action or a lost-opportunity action cannot control whether the plaintiff's action is, in fact, a traditional medical-malpractice action or a lost-opportunity action. This established principle ensures that the governing law, and not the label the parties attach to that law, controls the outcome of an action. As the United States Supreme Court has observed, any other approach would allow a party to avoid the requirements of a legislative mandate simply by artful pleading. See Allis-Chalmers Corp v Lueck, 471 US 202, 211; 105 S Ct 1904; 85 L Ed 2d 206 (1985). Yet this is exactly what the lead opinion would allow a plaintiff to do in relation to the requirements of MCL 600.2912a(2). Apparently, according to the justices joining the lead opinion, all a plaintiff need do to avoid the "greater than 50%" requirement in MCL 600.2912a(2) is to omit the words "lost opportunity" in his complaint. Thus, no artfulness is even required to nullify this particular statute under their theory.
Indeed, in light of the lead opinion, the discussions in the various opinions in this case concerning appropriate formulas for determining loss of opportunity seem pointless. For what plaintiff, and what competent plaintiff's attorney, would ever plead a lost-opportunity claim if it could be so easily avoided? Simply put, under the lead opinion's rule, would the lost-opportunity doctrine enacted by the Legislature even continue to exist as a viable legal doctrine in this state? Would a court have any power to apply the actual law, or would it be required to participate in a charade of the plaintiff's (and the lead opinion's) making? As an example, could a public official plaintiff avoid having to prove actual malice in a defamation case by simply leaving the words "public official" out of his pleading? Could a plaintiff suing a public entity entitled to governmental immunity avoid such immunity by simply omitting that the defendant is a public entity from his pleading? Could an independent contractor transmute himself into an employee by simply asserting such in his pleading?
The lead opinion offers no explanation, and I can think of none, to support its alternative "standard percentage increase calculation" formula, other than the fact the justices signing the lead opinion believe that it somehow indicates that plaintiff has suffered a 300 percent loss of an opportunity! However, none of this really seems to matter to the justices signing the lead opinion because in the end they conclude that MCL 600.2912a(2) does not require "any particular mathematical formula," and that if "either calculation," or, indeed, some other yet-to-be-discovered calculation, demonstrates a greater than 50 percent lost opportunity, the plaintiff's case may proceed, because "the results must be viewed in the light most favorable to the non-moving party." This is simply nonsensical. Although it is true that evidence is to be viewed in a light most favorable to the non-moving party, Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003), which, as in this case, will almost invariably be the plaintiff, this is the first I have heard of a judicially created rule that we are to construe an unambiguous law in a light most favorable to one side or the other. Needless to say, and for reasons that are apparent, the lead opinion does not bother to cite any authority in support of such a rule. Is there some logical reason for this rule other than an apparent desire by the lead justices to place a finger on the scales of justice on behalf of the plaintiff class? Is this rule limited to lost-opportunity cases or is it equally applicable to all medical-malpractice actions? Why is such a rule appropriate in a lost-opportunity case, but not in other realms of the civil law? When is such a default interpretation of the law warranted, and when is it not? If the law does not require "any particular formula," why does the lead opinion devote such attention to identifying the two formulas that it does identify? Why not just devise a third formula under which the plaintiff will always prevail? Could it possibly be that the lead justices may be confusing their own personal political philosophies with the dictates of the actual law that they pledged to uphold?
As I summarized in Stone:
As discussed earlier, because it is possible that the bad outcome in this case, i.e., suffering a stroke, would have occurred even if plaintiff had received proper treatment, the instant case is, in fact, a lost-opportunity action, and because plaintiff has raised a genuine issue of material fact regarding whether he suffered a greater than 50 percent loss of an opportunity under MCL 600.2912a, I agree with the majority that the judgment of the Court of Appeals should be reversed and this case should be remanded to the Court of Appeals for it to consider defendants' remaining issue on appeal, i.e., the admissibility of the expert witness testimony proffered by plaintiff.
However, I emphatically disagree with the majority's incoherent analysis and the implications of such analysis. The majority effectively transforms a lost-opportunity action into a traditional medical-malpractice action, for no other apparent reason than to afford plaintiff's with larger potential recoveries. Instead of limiting a plaintiff's recovery to the opportunity that he or she may have lost as a result of the defendant's negligence, the majority now expands the plaintiff's recovery to include potentially all damages related to his medical condition, even though the plaintiff may well have suffered the condition even had he received perfect medical treatment. Thus, having already undermined the Legislature's attempt at medical-malpractice reform, see e.g., Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009); Potter v McLeary, 484 Mich 397; 774 NW2d 1 (2009); and ADM File No. 2009-13, 485 Mich ___, ___ (order entered February 16, 2010), the majority now embarks upon transforming medical-malpractice law in exactly the opposite direction of that sought by the Legislature. At the same time, the differing formulas, and non-formulas, adopted by the majority, as well as the internal inconsistencies in its analysis, will only produce more confusion in an already confused area of the law, and more litigation in an already heavily litigated area of the law. The clearest principle of law that can be gleaned from the lead opinion is also the least principled of its asserted principles— the adoption of whichever formula best serves the plaintiff. Not much more than this "principle" really needs to be understood concerning the essence of the lead opinion's analysis.
CORRIGAN, J., concurred with MARKMAN, J., with respect to parts IV(A)(2) and (B) only.
CORRIGAN, J. (dissenting).
I fully join Justice YOUNG's dissenting opinion. I also join part IV(A)(2) and part IV(B) of Justice MARKMAN's opinion concurring in the result only.
YOUNG, J. (dissenting).
Our new Chief Justice established the "agenda" for the newly reconstituted Court in her recent comments captured by the press:
Chaos and confusion in the law only promote more litigation. The decisions the new majority has issued today in this case will thus benefit only those who profit from litigating medical malpractice cases. The rest of us desire to know what legal rules control our rights and obligations, and we desire and deserve to know them before we act. The citizens of this state are entitled to that kind of clarity in the decisions from the state's senior court, not the disorder this Court has sown today. Today's decision returns this Court to an era in which the bench and bar must decipher this Court's split opinions in order to figure out what principles of law they collectively articulate.
Despite the Legislature's codification of the traditional obligation to prove that alleged malpractice "more probably than not" caused a plaintiff's injury,
Until today, this Court has always made clear that when a traditional medical malpractice claim was at issue, the more-probable-than-not standard of causation applied and required the plaintiff to "`exclude other reasonable hypotheses with a fair amount of certainty.'"
Rather than attempting to give meaning to the words of the statute at issue in this case, the new majority performs a spectacularly hubristic feat in treating a statutory medical malpractice claim as though it were a mere matter of common law and thus subject to its revisionary powers. What is more, these justices have decided to use those extraconstitutional powers to circumvent the Legislature's explicit decision to retain traditional causation rules. The new majority has chosen "free form" to change the law to match its policy preference that no legal doctrines shall exist to eliminate any claim of medical malpractice—even those doctrines codified by our Legislature to accomplish this very goal.
For someone who campaigned on the theme that more of this Court's precedent should be preserved,
The dicta in Justice HATHAWAY's opinion bears out her newfound position on stare decisis because her opinion purports to opine on "the full scope and extent of loss-of-opportunity claims,"
Ordinarily, this fact would hinder any justice from engaging in a discussion on the scope of a claim for the lost opportunity to survive that is not implicated in the case before the Court. Justice HATHAWAY, though, is not constrained to consider only the legal issues she claims are involved here because, consistent with the new majority's "agenda,"
Finally, the new majority overrules the Court of Appeals decision in Fulton v William Beaumont Hosp to the extent it is inconsistent with their opinions.
For these reasons and more, I vigorously dissent. I believe that the new majority has intentionally mischaracterized this as a "traditional" medical malpractice claim because plaintiff's expert testimony unquestionably established that the alleged malpractice was not the "but for" cause of plaintiff's injury. Were the new majority's characterization of this case as a traditional medical malpractice claim accurate, I would affirm for failure of proofs. However, because I believe this to be a lost opportunity case, I would vacate as improvidently granted our September 30, 2009, order granting leave to appeal. I continue to adhere to the position stated in the lead opinion in Stone v Williamson that the second sentence of MCL 600.2912a(2) codifying the lost opportunity remedy is unenforceable as enacted.
Because none of the opinions that collectively create a majority elaborates on the facts necessary to decide this case, I present the following complete recitation of the pertinent facts and procedural history of this case.
Plaintiff, Raymond O'Neal, suffers from sickle cell anemia, a genetic condition that produces an increased amount of abnormally shaped red blood cells in his bloodstream.
On January 23 through 24, 2003, plaintiff received a standard transfusion of three units of blood cells. He received two additional units of blood cells in another standard transfusion on January 28, 2003. Plaintiff suffered a stroke on the right side of his brain on February 1, 2003. Plaintiff received a third transfusion—an exchange transfusion—on February 2 through 3, 2003. Plaintiff's condition stabilized after this final transfusion, but he alleged permanent injury as a result of the stroke, including partial paralysis of his left leg and loss of function of his left hand and arm.
Plaintiff filed the instant medical malpractice complaint, alleging that defendants failed to comply with the appropriate standard of care, which required them to "arrange for exchange transfusions" to treat plaintiff's ACS on or before January 28, 2003. He also alleged that "[p]erformance of [an] exchange transfusion prior to the . . . stroke would have prevented the stroke from occurring."
Plaintiff retained and deposed three expert witnesses to testify on his behalf on the issue of causation. Dr. John Luce, a pulmonary care specialist, testified that reducing plaintiff's abnormal hemoglobin count to under 30 percent would have made it "probable that he would not have" suffered the stroke, although he acknowledged that plaintiff still could have suffered the stroke even with such a reduced abnormal hemoglobin count. Because no data existed on the frequency of strokes in adult sickle cell patients, Dr. Richard Stein, a hematologist, extrapolated from existing data on the effects of aggressive transfusion therapy on children with sickle cell disease. He testified that "more likely than not" plaintiff would have avoided a stroke if he had received aggressive transfusion therapy, what plaintiff alleged is the appropriate standard of care. Dr. Griffin Rodgers, also a hematologist, provided the most detailed testimony regarding the causal relationships between the stroke, plaintiff's underlying medical condition, and defendants' alleged malpractice. He explained that sickle cell patients generally have a baseline risk of stroke that is significantly higher than the average population. Moreover, plaintiff's ACS further increased his baseline risk of stroke to between 10 and 20 percent. Dr. Rodgers testified that, with aggressive transfusion therapy, the plaintiff's risk of stroke would have "been cut in half," that is, to between 5 and 10 percent. Stated otherwise, plaintiff's opportunity to avoid a stroke would have been between 90 and 95 percent with aggressive transfusion therapy, but it was reduced to between 80 and 90 percent without aggressive transfusion therapy. Thus, under either treatment regime, plaintiff's experts testified that it was more likely than not that plaintiff would avoid a stroke.
Defendants moved for summary disposition, arguing that Dr. Rodgers's testimony regarding plaintiff's lost opportunity to avoid a stroke failed to satisfy the requirement of MCL 600.2912a(2)
After the Court of Appeals denied defendants' interlocutory application for leave to appeal, in lieu of granting leave to appeal, we remanded this case to the Court of Appeals for consideration as on leave granted.
We granted leave to appeal and directed the parties to brief: (1) whether the requirements set forth in the second sentence of MCL 600.2912a(2) apply in this case; (2) if not, whether the plaintiff presented sufficient evidence to create a genuine issue of fact with regard to whether the defendants' conduct proximately caused his injury; or (3) if so, 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 § 2912a(2).
The lead opinion in Stone aptly summarized the pertinent legal background relevant to this case, including the distinction between traditional malpractice claims and lost opportunity claims that the majority now eviscerates:
When the Court decided Falcon, MCL 600.2912a read:
Thus, in contrast with traditional malpractice claims, the very nature of the lost opportunity doctrine allows a plaintiff to recover in the absence of proximate causation between the alleged malpractice and the physical injury suffered. The lead opinion in Stone determined that "the two sentences of subsection 2 create a paradox, allowing claims in the second sentence while precluding them by the first sentence."
A necessary component of proximate causation is "but for" causation, or causation in fact.
As Justice CAVANAGH has himself previously concluded, plaintiffs must present evidence of proximate causation that "`must exclude other reasonable hypotheses with a fair amount of certainty.'"
As stated, the crux of a lost opportunity claim is that a plaintiff cannot show that, more probably than not, the alleged malpractice proximately caused his injuries. This is because a plaintiff need only show that the alleged malpractice merely reduced his opportunity to achieve a better result. Accordingly, whether a claim is a traditional malpractice claim or a claim for the loss of an opportunity to achieve a better result depends on whether the alleged malpractice proximately caused the alleged injury.
Contrary to the new majority's position, this case presents a prototypical lost opportunity claim because no proximate causation exists between the alleged malpractice and plaintiff's physical injury. Plaintiff's experts testified that plaintiff's underlying medical condition—sickle cell anemia complicated by ACS—increased his risk of stroke above that of a healthy person and even above that of a sickle cell patient who has not developed ACS. Plaintiff's underlying medical condition created a heightened chance of suffering a stroke, with or without the alleged malpractice. As Dr. Rogers, who provided the most detail of plaintiff's causation experts, testified, plaintiff would have had a 5 to 10 percent chance of suffering a stroke even if he had been treated according to the plaintiff's proposed standard of care.
Simply stated, the plaintiff has not asserted, and neither Justice HATHAWAY's opinion nor Justice CAVANAGH's concurring opinion assert—that the alleged medical malpractice increased his chance of suffering a stroke by the more than 50 percentage points required to prove proximate causation.
As stated, in determining that plaintiff's claim is a traditional medical malpractice claim, the new majority today applies relaxed causation rules that previously had applied only to lost opportunity claims—claims involving an increased risk of injury that did not rise to the level of proximate causation. These relaxed rules are inconsistent with the position that three of the justices of the new majority have taken previously on what evidence is required for a plaintiff to prove a traditional medical malpractice claim.
The new majority appears to be of the view that the less said about its radical rewriting of this statute the better. When a judge is "doing" policy rather than interpreting the law, it is apparently not required to maintain a consistent position or explain a fundamental change in position. Certainly, such disclosures are probably not desired by jurists whose positions are undergoing radical "revision." I commend the reader to compare the positions taken today by Chief Justice KELLY and Justices CAVANAGH and WEAVER with those taken just two years ago in Stone.
In Stone, Justice CAVANAGH, writing for himself and Justices KELLY and WEAVER, held that a traditional medical malpractice action required "but for" causation. He specifically posed a hypothetical example in which a plaintiff's opportunity to achieve a better result was reduced by 40 percentage points, from 80 percent to 40 percent. Thus, this hypothetical plaintiff's risk of suffering a bad result increased from 20 percent to 60 percent as a result of the alleged medical malpractice. According to Justice CAVANAGH just two years ago, this hypothetical plaintiff "could not meet the more-probably-than-not standard of causation . . . ."
Justice HATHAWAY's opinion places much emphasis on the fact that our caselaw indicates that "a plaintiff need not prove that an act or omission was the sole catalyst for his injuries,"
The proposition that any injury may have more than one proximate cause is an unremarkable one for anyone who understands the principles of "but for" causation. An injury that involves a series of individual occurrences before it is manifested will have multiple "but for" causes.
One of this Court's cases on traditional causation, Brackins v Olympia, Inc, illustrates this point.
The dual "but for" causes in Brackins are very different from the situation in the instant case. Here, all that plaintiff can show is that defendants' alleged malpractice exacerbated plaintiff's preexisting sickle cell anemia to the extent of increasing his risk of suffering a stroke by between 5 and 10 percentage points. Plaintiff has simply not proved that the alleged malpractice caused his stroke, nor has he "exclude[d]" the "other reasonable hypothes[i]s"—his preexisting sickle cell anemia—"with a fair amount of certainty."
Even in applying their radical new approach to proximate causation, the justices in the new majority only reach their desired result by manipulating the expert's statistical evidence in ways inconsistent with the expert's own use of the statistical evidence and, similarly, in ways inconsistent with the uncontroversial and essential principle of statistical methodology of comparing "like with like." The new majority's inappropriate use of the statistical evidence presented in this case provides further proof that it is engaging in result-driven jurisprudence. Only this motivation could support such a mathematically illiterate presentation.
Justice HATHAWAY's opinion declares, under the guise of requiring "results [to] be viewed in the light most favorable to the nonmoving party,"
Two of the formulas that Justice HATHAWAY's opinion identifies by name bear closer analysis. Her opinion indicates that the evidence in this case can be "viewed as a standard percentage increase calculation. . . ."
In Falcon, the plaintiff's decedent, Nena Falcon, suffered an amniotic fluid embolism, "an unpreventable complication" of childbirth.
However, a second approach used by Justice HATHAWAY that I wish to discuss does appear to have the support from a majority of this Court—what Justice HATHAWAY calls the "standard percentage decrease calculation."
As stated, three of the justices who support this approach do so in opposition to their previously stated positions.
Finally, Justice HATHAWAY's opinion concludes that "plaintiff established a question of fact on the issue of proximate causation because plaintiff's experts opined that defendants' negligence more probably than not was the proximate cause of the plaintiff's injuries."
As stated, this case is a prototypical lost opportunity case because plaintiff cannot establish that, more probably than not, defendants proximately caused his stroke because he was predisposed to suffer one, his risk being in the range of 5 to 10 percent, even with medical care that satisfied plaintiff's proposed standard of care. Accordingly, I vigorously dissent from the conclusion of a majority of this Court that plaintiff asserted a traditional medical malpractice claim and would instead conclude that plaintiff asserted a lost opportunity claim.
Because the new majority concludes that plaintiff's claim is a traditional medical malpractice claim, it does not need to reach the question whether plaintiff's claim meets the requirements of the second sentence of MCL 600.2912a(2), which applies only to lost opportunity claims. The decision of the new majority to treat this case as a traditional medical malpractice claim, of course, obviates the need for interpreting the second sentence of MCL 600.2912a(2) because the new majority essentially treats all medical malpractice claims under the weakened Falcon causation standard heretofore applicable only to lost opportunity claims. Therefore, the decision of the new majority to overrule the Court of Appeals decision in Fulton, to the extent Fulton drew a line between lost opportunity cases and traditional medical malpractice cases, also does away with Fulton's application of the sentence in § 2912a(2) that applies to lost opportunity cases. Fulton only applies to lost opportunity cases. By concluding that the instant case sounds in traditional medical malpractice, the new majority essentially writes the decision in Fulton out of existence. Thus, its expansive decision in this case is characteristic of the new majority that overreaches in its decisions in order to achieve its own preferred policy outcomes.
The Legislature added subsection (2) to MCL 600.2912a shortly after the Falcon Court created the new claim for loss of an opportunity to survive. The new subsection provides:
As the lead opinion in Stone aptly observed, there are multiple problems in determining whether the requirements of MCL 600.2912a(2) apply in any particular case. As stated above, the two sentences are internally inconsistent and, therefore, create a paradox:
Even ignoring the internal inconsistency, the second sentence of subsection (2) is incomprehensible as written. Subsequent to the amendment, the split Court of Appeals panel in Fulton offered two contradictory interpretations of the second sentence, neither of which was consistent with the text of that sentence as enacted. The Fulton majority determined that "MCL 600.2912a(2) requires a plaintiff to show that the loss of the opportunity to survive or achieve a better result exceeds fifty percent."
The dissenting judge in Fulton did not fare any better. His interpretation of MCL 600.2912a(2) required a plaintiff "`to show that, had the defendant not been negligent, there was a greater than fifty percent chance of survival or a better result.'"
Thus, both the majority and the dissent in Fulton inserted additional words into the statute. Their reasons for doing so were identical: each believed the additional language was necessary to enforce the perceived legislative intent to respond to the Falcon Court's creation of the lost opportunity claim. However, these multiple interpretations show that, even if they were correct that the amendment was a legislative response to Falcon, the scope of such response was far from clear.
In the end, the lead opinion in Stone concluded:
The decision by the new majority that this case represents a traditional medical malpractice case further muddles this important area of the law. Moreover, three justices of the new majority have changed their published positions over the past several years on the nature of the evidence required to prove proximate cause.
Confusion and uncertainty in the law prevent citizens from arranging their affairs in a predictable fashion. This Court initially created uncertainty in adopting the lost opportunity claim in Falcon because it was so profoundly at odds with traditional principles of causation. It is no wonder that the Legislature had difficulty reconciling "Falcon causation" with the traditional causation that the Legislature clearly desired to maintain in medical malpractice claims. Today, the new majority has created even more uncertainty in interpreting the legislative response to Falcon. While the result in this case undoubtedly serves the interests of lawyers who litigate medical malpractice cases, it poorly serves the people of this state to have the law become even more incomprehensibly muddled. This is not an accidental act, but one intentionally designed to thwart the legislative directive that the plaintiff prove the traditional requirement of proximate cause in every "action alleging medical malpractice . . . ."
Plaintiff's claim is a prototypical lost opportunity claim. As such, the second sentence of MCL 600.2912a(2) expressly controls plaintiff's claim. However, I continue to maintain that § 2912a(2) is unenforceable as enacted, and I reiterate former Chief Justice TAYLOR's call for the Legislature "to reexamine its goal and the policies it wishes to promote and strive to better articulate its intent in that regard."
Today is a sad day for predictability in Michigan law. The disorder sown by the new majority in their several opinions speaks poorly of the quality of decision-making in this Court. Doctrinal destruction aside, the obvious manipulation of the statistical evidence by the justices of the new majority to achieve their goal of creating a cause of action when the proofs have failed is itself worthy of condemnation.
For all of the reasons stated, I vigorously dissent from overreaching by the new majority and, instead, would vacate as improvidently entered this Court's September 30, 2009, order granting leave to appeal.
CORRIGAN, J., concurred with YOUNG, J.
Setting aside the numerous pages of Justice YOUNG's opinion that consist only of irrelevant, hyperbolic, or unsubstantiated commentary, he appears to raise only two substantive concerns with my approach, and neither provides support for his conclusion that it does not satisfy the cause-in-fact prong. First, he irrelevantly notes that, as I concede in footnote 7, this approach is inconsistent with an example I used in Stone. Second, he alleges that I should not have compared the low end of the possible range of plaintiff's risk of the bad result absent negligence to the high end of the range of plaintiff's risk with negligence. I think that my approach is perfectly consistent with our charge to view the evidence in the light most favorable to the plaintiff, given that even Justice YOUNG explains that the experts testified that plaintiff's risk was somewhere between the ranges the experts provided. But regardless, this criticism only challenges which numbers to use and not the merits of the approach itself, and it would be possible, as Justice YOUNG prefers, to instead compare the low ends of the ranges, or the high ends, only to each other. For example, if the alleged negligence increased a plaintiff's risk of the bad result from 5 to 10 percent to 30 to 40 percent, then, regardless of which numbers are compared, the negligence would have been responsible for a majority of the plaintiff's risk of the bad result, and, given that the bad result occurred, it would be more probable than not that the negligence was a cause in fact of the bad result occurring. Justice YOUNG fails to address why this logic is incorrect or levy a criticism that actually supports his conclusion that my approach eviscerates the cause-in-fact requirement.
A plaintiff who has a preexisting medical condition is only able to prove "but for" causation when the alleged malpractice increases the plaintiff's risk of suffering a "bad result" by more than 50 percentage points. Otherwise, there is no way to exclude, as Justice CAVANAGH (and this Court) has previously required, all "other reasonable hypotheses with a fair amount of certainty." Skinner, 445 Mich at 166 (quotation marks and citation omitted). The approach adopted by the opinions of Justices HATHAWAY and CAVANAGH negates this basic requirement of proximate cause and would allow a plaintiff to recover for a bad result even in situations in which other, nonmalpractice "causes" for the result predominated in creating it.
The new majority's approach would allow a plaintiff to recover in full from a doctor who, for example, failed to diagnose cancer at its earliest stages, but still diagnosed it at a stage where it was much more probable than not that a patient would survive. To put figures on this situation, suppose a plaintiff's risk of dying from cancer is 1 percent if it is caught at its earliest stages. A doctor who fails to catch the cancer at that stage, but who catches it and treats it at a stage where the risk of dying from cancer is 3 percent, then, is liable, under the new majority's new approach, for the entire injury, should one occur, because the failure to diagnose contributed to 2/3 of the risk of injury. This is true, according to the new majority, even though the doctor only decreased the patient's chance of surviving by 2 percentage points, from 99 percent to 97 percent.
By shifting many lost opportunity claims into traditional medical malpractice claims, the new majority creates additional liability of a defendant for the entire injury, not just for the increased risk of injury, as lost opportunity claims provide. See Falcon, 436 Mich at 471 (opinion by LEVIN, J.) ("In this case, 37.5 percent times the damages recoverable for wrongful death would be an appropriate measure of damages."). This shift in determining a defendant's liability is essential to understanding what the new majority is trying to accomplish in this case. Now plaintiffs need only prove that a doctor's negligence contributed to the risk of injury, not that his negligence actually caused the injury. And no amount of pretended ignorance about the significance of these changes by members of the new majority alters their fundamental and radical impact on this area of the law.
By my count, the new majority has now overturned this term 12 cases in addition to the one that it overturns today:
1. In People v Feezel, 486 Mich 184; 783 NW2d 67 (2010), the new majority overruled People v Derror, 475 Mich 316; 715 NW2d 822 (2006).
2. In McCormick v Carrier, ___ Mich ___; ___ NW2d ___ (2010), the new majority overruled Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004).
In Lansing Sch Ed Ass'n v Lansing Bd of Ed, ___ Mich ___; ___ NW2d ___ (2010), the new majority overruled the following cases:
11. In Bezeau v Palace Sports Entertainment, Inc, ___ Mich ___; ___ NW2d ___ (2010), the new majority expressly overruled the limited retroactive effect of Karaczewski v Farbman Stein & Co, 478 Mich 28; 732 NW2d 56 (2007).
12. In Univ of Mich Regents v Titan Ins Co, ___ Mich ___; ___ NW2d ___ (2010), the new majority overruled Cameron v Auto Club Ins Ass'n, 476 Mich 55; 718 NW2d 784 (2006).
Given this list of "lately departed" decisions of the "Republican-dominated Court," killing one Court of Appeals case such as Fulton—even if entirely irrelevant to the question the new majority purports to address here—is hardly surprising for the new majority which, before its members became the majority, were individually and collectively notably more "hawkish" on preserving precedent. See Pollard v Suburban Mobility Auth for Regional Transp, 486 Mich 963, 963-965 (2010) (YOUNG, J., dissenting statement). As in three other cases decided this term, Justice WEAVER repeats her tired and unsuccessful attempt to defend her changing position on stare decisis. Ante at ___ (WEAVER, J., concurring). See also Univ of Mich Regents, ___ Mich at ___ (WEAVER, J., concurring); Lansing Sch Ed Ass'n, ___ Mich at ___ (WEAVER, J., concurring); McCormick, ___ Mich at ___ (WEAVER, J., concurring). Her position does not become any more convincing with repetition. My dissenting opinion in Univ of Mich Regents, ___ Mich at ___ (YOUNG, J., dissenting), explains in full why Justice WEAVER's position is merely an attempt to justify stark judicial policy-making.
