Medical Malpractice Causation Update

By statute, Michigan law says that in an action alleging medical malpractice, the victim has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of 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%. MCL 600.2912 a(2).

In a recent unpublished court of appeals decision, Baker v St John Health Systems, et al (January 2007), the court, not for the first time, addressed the meaning of the statutory language. Giving some background, the court states:

"In Fulton v Beaumont Hosp, 253 Mich App 70, 79-80; 655 NW2d 569 (2002), this Court acknowledged that the statutory language was ambiguous regarding what 'opportunity' the Legislature required to be greater than 50 percent. The majority in Fulton resolved the ambiguity by concluding that a defendant’s actions must have caused a plaintiff’s chances of survival or of a better result to decrease by at least 50 percent, rather than decrease from at least 50 percent." Id., 82-84. In other words, the only relevant calculation is the difference between the starting and ending odds, rather than a threshold question of simply whether the plaintiff’s odds with proper care were above 50 percent.   Baker at p 2.

The dissent in Fulton with some support from an earlier court of appeals case, disagreed with the majority's holding that there had to be a fifty percent decrease in the starting and ending odds, and argued that the statute merely set forth the threshold question of whether the plaintiff’s odds, absent malpractice, were greater than fifty percent.

In 2004, the Court of Appeals in Ensink v Mecosta Co Gen Hosp disagreed with the holding in Fulton but went on to apply the Fulton court’s interpretation of the statute, despite the Judges' disagreement, concluding that they were bound by the precedential effect of Fulton. The Ensink judges stated that they did not deem the Fulton court’s interpretation of the statute as rational and instead agreed with the position set forth in the Fulton dissent.

The Court of Appeals in Baker has again disagreed with the Fulton rationale and the Judges opined that the dissenting view set forth in Fulton is the correct one.  Nevertheless, because the Baker opinion is unpublished, and because it held that plaintiff would meet the requirements of the statute under either interpretation, the case cannot be relied on by plaintiffs when pursuing a medical malpractice claim. In other words despite the recognition by a number of learned judges that its logic and reasoning are faulty, a medical victim must still meet the onerous interpretation of the causation statute set forth in the Fulton opinion.