Baker v. St. John Health Systems

Full title: Rubye BAKER, Personal Representative of the Estate of Stacey Baker…

Court: Supreme Court of Michigan

Date published: Oct 31, 2008

757 N.W.2d 120 (Mich. 2008)

Opinion

757 N.W.2d 120 (Mich. 2008) Rubye BAKER, Personal Representative of the Estate of Stacey Baker, Plaintiff-Appellee, v. ST. JOHN HEALTH SYSTEMS, a/k/a St. John Hospital and Medical Center, Dr. Therese Roth, and Dr. Marson Ma, Jr., Defendants-Appellants. Docket No. 133525. COA No. 267284. Supreme Court of Michigan. October 31, 2008

         Prior report: 2007 WL 162718.

         Order

         On order of the Court, the application for leave to appeal the January 23, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court prior to the completion of the proceedings ordered by the Court of Appeals.

          MARKMAN, J., ( concurring ).

          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, 753 N.W.2d 106 (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.

         Plaintiff's 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, 753 N.W.2d 106 (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 plaintiff's 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.