Opinion
No. 133525.
October 31, 2008.
Court of Appeals No. 267284.
Leave to Appeal Denied October 31, 2008.
The trial court granted defendants' motion for summary disposition, but the Court of Appeals reversed. MCL 600.2912a(2) provides, in pertinent part, "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%." We recently addressed this provision with some considerable lack of consensus in Stone v Williamson, 482 Mich 144 (2008). Given their decisions in Stone, I believe it is clear that my six colleagues would either conclude that this is not a lost opportunity cause of action, or, if it is, that plaintiff has satisfied the § 2912a(2) requirement. For that reason, I concur in the denial order, even though I would reverse had my position in Stone prevailed.
Plaintiffs expert testified that the decedent's premalpractice chance of survival was 51% and her postmalpractice chance of survival was "5% or less." I believe that this is a lost opportunity cause of action because "it is possible that the bad outcome would have occurred even if the patient had received proper treatment." Stone, supra at 218 (MARKMAN, J., concurring in the result only). Further, utilizing the formula described in my opinion in Stone, plaintiff would only satisfy the § 2912a requirement if the decedent's postmalpractice chance of surviving was 1% or less. If her postmalpractice chance was 5%, as plaintiffs expert admitted that it might have been, plaintiff would not satisfy the § 2912a requirement. Because plaintiff has the burden of demonstrating that the § 2912a requirement is satisfied, and she has not done so here, I would reverse. However, because my interpretation of § 2912a did not carry the day in Stone, I accede to the denial order.