Michigan Supreme Court clarifies causation in medical malpracticeSeveral years ago, all seven Justices of the Supreme Court agreed that the explanation of legal causation in malpractice claims was confused and had been misinterpreted even by the Supreme Court, however, they disagreed on how it should be defined. No four justices could agree on a single definition, in part because of the fact that most malpractice victims are being treated for a debilitating or life-threatening condition at the outset. It becomes necessary to distinguish between bad outcomes that arise as a development of the underlying disease or condition--or from complications of treatment--and bad outcomes that result from poor care.
This analysis was made more difficult two decades ago when the Supreme Court allowed a family to sue, even though the family's decedent stood only a 37 percent chance of survival. The Court held that the family could recover an equivalent percentage (i.e. 37%) of their full wrongful death damages if malpractice denied them a "substantial" possibility--but not a probability-- of recovery. In response to this decision, the Michigan Legislature enacted a rule limiting recovery to patients who enjoyed a "probability" of survival with good care.
Unfortunately, for a number of years, the Engler Majority maladapted a simple mathematical model to compute the "probability" of survival. These insurance-captive judges simply subtracted the potential survival pre-treatment from the potential survival post- negligent treatment, and if the end result was under 50%, the victim was denied the right to sue: thus, if I had a 90% likelihood of survival pre-surgery, and a 45% likelihood of survival after malpractice--but died--my family would be unable to sue because the doctor didn't reduce my statistical risk of dying by more than fifty percent---even though he reduced my chance of survival by 95%.
In a decision handed down on July 31, four of the Justices agreed that under these circumstances, the victim's family could sue if they can prove that the victim had a "probability" of a better outcome before negligent treatment, so that the health care provider's negligence was a cause of the bad outcome. Some of the holdover Engler Majority Justices would continue to require proof that the at-fault negligent actor's malpractice was the sole proximate cause of the bad outcome, by requiring proof that negligence, alone, reduced the statistical probability of survival by more than fifty percent. Apparently, they would also refuse to address the mathematical error inherent in failing to recognize that post-malpractice, many victims no longer enjoy the "possible" good outcome that a friendly defense expert would assign them in an academic, hypothetical analysis.
The case is O'Neal v. St. John's Hospital, et al.