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The Supreme Court addresses "lost opportunity for a better outcome"

In three separate opinions, the Supreme Court of Michigan revisited the contentious issue that results when a medical provider's negligence denies a patient the opportunity to achieve a better outcome.  The question of how this situation should be handled has dogged our Courts and Legislature for almost twenty years.  This week's split opinion in Stone v. Williamson, et al., probably won't be the final word, but will control litigation of this nature for the foreseeable future.  In essence, the Court held that the victim/patient must present proof that he or she enjoyed a better than fifty percent probability of a preferred outcome before the malpractice.  The patient must also show that the likely consequence of the malpractice has already been suffered by the victim, in the form of physical injuries:  on the fiction that no physical injury has actually been incurred, no recovery is allowed for a reduction in the likelihood of survival---even if that reduction is from 99 percent likely survival to only 10 percent. Justice Taylor wrote an opinion which was signed by most of the insurer-captive Justices.  In a rare and pleasant surprise, they refused to subscribe to the insurance company's argument.   Perhaps that is because the insurer's argument was too absurd even for the Chamber of Commerce. 

The Plaintiff had suffered horrible complications after an abdominal aneurysm went undiagnosed and burst.  The Plaintiff had demonstrated that if the Defendants had diagnosed his aneurysm when he was first x-rayed, he enjoyed a 95 percent probability of repair and an uncomplicated outcome.   After the aneurysm burst, he faced an eighty percent likelihood of death and another ten percent probability of severe complications:  thus his likely outcome (accepted by the court and jury) was reduced from 95 percent positive with good care to 90 percent negative with malpractice.

The Defendants argued that Stone's potential death after failure to diagnose should be excluded from the range of probable outcomes with malpractice, and on that theory the Defendants argued that Stone had suffered only a ten or fifteen percent increase in likely poor outcome.  Taylor and his co-signers rejected this approach and would hold that this is not a lost opportunity case because Stone proved a direct damage case:  Stone had a probability of a good outcome with proper care and professional negligence caused him to suffer an outcome that was among the range of foreseeable "bad" outcomes.  {It has never been the law in Michigan that the injury victim had to prove that the wrongdoer could foresee the particular bad result that he caused.} 

Taylor's opinion subscribes to the fiction, though, that no injury has been suffered until the "bad" physical outcome or manifestation has actually occurred, thus denying recourse to all patients who have suffered inchoate injury.  In other words, if the medical literature shows that a cancer patient's probable recovery has been reduced from 99 percent to less than fifty percent (and thus he is likely to die because of malpractice), the patient has no cause of action for the death until it has already occurred [assuming, of course, that it occurs within the short, two year, statute of limitations].  Even though we know scientifically that a physical event in the body has probably occurred that will ultimately prove fatal, these Justices refuse to recognize this change (for example probable metastases or cardiac tissue death) as an "injury".

Justice Markman agreed that Mr. Stone had proved a malpractice case, but would adopt a complicated survival formula that required the patient to prove a fifty percent loss of opportunity, taking into account unexpected survivors.  Thus Markman would enforce the "loss of opportunity" statute adopted by the Legislature, but would limit it to situations where the probability of survival minus the unrelated-to-malpractice survival still resulted in a measured percentage of loss greater than fifty percent.  That is, say for example that statistically, ten percent of a particular type of malpractice victim still survives despite the malpractice:  the victim-litigant would have to show that he had a better than 60 percent probability of survival prior to malpractice in order to meet the statutory threshold.  All of the other Justices agreed that there was no basis for Markman to graft this requirement atop the statutory language.

Three additional Justices (Kelly, Cavanaugh and Weaver) also agreed to uphold Stone's verdict,  but disagreed with the other Justices' reasoning.  They were unwilling to graft exceptions beneficial to insurers atop the Stone holding (as the other four Justices wanted to do), but instead would have enforced the loss of opportunity statute just as it reads.  They didn't articulate this argument, but probably questioned why the other Justices rely so heavily upon statistics, but refuse to apply them to the likelihood of survival after malpractice. 

The Taylor opinion claimed that the percentage language in the "lost opportunity" statute is unenforcible,  and Markman wanted to further increase the threshold from the Legislature's fifty percent to a higher number.  The latter three Justices, however, noted that the statute merely increased the compensable threshold for loss of survival from a "substantial" possibility (in the Falcon case, 37 percent) to fifty percent, and would enforce it as written.

Thompson O’Neil, P.C.
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