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Does Justice Taylor's defeat have an impact on the "lost opportunity of survival" doctrine?

In Stone v. Williamson, Justice Taylor and two of his companions refused to enforce the second sentence of MCL 600.2912a.  That sentence was a reaction to the earlier Falcon decision of the Michigan Supreme Court, and in that sentence the legislature allowed a malpractice victim to sue for a "lost opportunity of survival" or a lost opportunity to "achieve a better outcome", but only if the pre-malpractice probability of survival or a better outcome was greater than fifty percent (i.e. "more probable than not").  Falcon had allowed a claim for lost opportunity where the alleged chance of a better outcome, pre-malpractice, was 37.5 percent--but limited the victim's recovery to 37.5 percent of what a wrongful death claim would have provided.

In Stone, Justice Markman argued that victims should never be able to sue over a poor outcome unless they could prove that there was "no question" that proper care would have achieved a good outcome.  In other words, Markman would deny a recovery to any victim who had any chance--even one percent--of a poor outcome with good care.  If a patient faced a one percent risk of death at surgery, and was the victim of malpractice (that probably caused death), Markman would deny him any recovery on the justification that the victim could not eliminate the one percent possibility that death resulted from a cause unrelated to the malpractice.  In other words, Markman would have required the victim to eliminate every other potential explanation for a bad outcome in order to recover for malpractice that was a virtually certain cause of the bad outcome.  No other Justice was willing to accept Markman's argument (which is inconsistent with all other standards of causation recognized by our courts, by the way), perhaps in part because Markman acknowledged that his interpretation stemmed from a personal (but undocumented) conviction that there was a "disconnect" between what the Legislature intended and what it enacted.

Three Justices voted in Stone to enforce the "lost opportunity" statute precisely as it was written.  They noted that it was not difficult to harmonize any apparent ambiguity in the statute if the Justices kept in mind the Legislature's purpose in enacting the statute:  to recognized the "lost opportunity" doctrine, but to limit its application to cases where the victim enjoyed a pre-malpractice likelihood of survival that was greater than fifty percent (rather than Falcon's 37.5 %).  In other words, they would limit the "lost opportunity" theory to claims where the victim had a probability of a better outcome before the malpractice occurred. 

These Justices suggested that where a victim had a probability of a good outcome pre-malpractice, but still a high likelihood of a good outcome post-malpractice, the dead victim could not prove that the at-fault caused him to lose an opportunity to survive, since the malpractice denied him less than fifty percent points of probability of survival (For example, if a victim had a pre-malpractice 75% likelihood of survival and a post-malpractice likelihood of survival of 40%, statistically his "loss" would equal only a 35% probability loss directly attributable to the malpractice and suggest that some other causal factor contributed to the bad outcome).  Even this analysis represents a mis-use of statistics, since this decedent had a zero percent chance of survival, by definition, and obviously represented one of a class of victims who was not strong enough or properly positioned to survive malpractice.  Nevertheless, with the Court  and legislature focused on statistical analysis, this  concurring opinion in Stone at least gave meaning to the language of the statute adopted by the Legislature.

Justice Taylor's concurring Justices, however, refused to enforce the statute to recognize an actionable "loss of opportunity", even if the opportunity  pre-malpractice was well above the statutorily-mandated fifty percent, if comparing the pre- and post- statistical probability of survival was less than fifty percent.  Taylor's analysis would hold that a patient with a 90% probability of survival pre-malpractice, who still enjoyed (but did not benefit from) a statistical probability of survival post-malpractice of 45%, could not sue because the victim did not "lose" a fifty percent probability of a better outcome.  Thus, Taylor rejected the statutory language as "incomprehensible" because it would have allowed a claim in the latter circumstance, and refused to enforce the statute under these circumstances:  in effect punishing a victim who had enjoyed a high likelihood of a better outcome pre-malpractice, because the victim for some reason was more susceptible to a poor outcome as a result of the malpractice.  So much for "strict construction":  Taylor's concurring opinion helps to demonstrate why so many lawyers considered him to be precisely what he railed against:  a judicial activist twisting legislative interpretation to fit his own agenda.

With Taylor off the Court in 2009, Justice Hathaway will be the deciding factor in the analysis of the "lost opportunity" doctrine.  If she agrees with Taylor's tortured analysis of the "incomprehensible" statute, there will be four Justices who would not recognize a "lost opportunity to survive"--even if the likelihood of survival with proper care was well above fifty percent--absent a showing of a very low likelihood of survival post-malpractice.  If she joins with Justices Weaver, Cavanaugh and Kelly, there will be a majority of Justices who are willing to enforce the statute governing loss of opportunity for a better outcome as written.

In either case, in Stone, six of the seven Justices rejected the malpractice insurer's argument that a malpractice victim could not prove injury by showing a poorer outcome through comparing the aggregate of complications, including death, pre- and post-malpractice.  The insurer would have required that the victim prove a fifty percent probability of a particular injury/complication (e.g. death, paralysis, amputation, etc.) rather than a fifty percent probability of injury and serious complications taken in the aggregate.  The Justices all agreed that this approach was nonsensical and would have punished a victim, for example, if his or her outcome was better or different from the average patient who had endured malpractice.

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