For years, the legal community in Michigan has been mired in confusion with regard to certain types of medical malpractice cases. In particular, the complicated and nuanced issues of “proximate causation” and “loss of opportunity” became the subject of intense litigation and conflicting judicial opinions.
In medical malpractice cases, a plaintiff must be able to prove 1) the standard of care or practice to which the provider must be held, 2) that the standard of care was breached, 3) that the breach of the standard of care was a proximate cause of the damages alleged, and 4) that the plaintiff did, in fact suffer damages. Making matters more difficult is the fact that most medical malpractice plaintiffs are seeking treatment for some condition that, even without the intervention of a health care provider, puts the patient at risk for harm. As a result, medical malpractice cases are divided into two types: “traditional” claims and “loss of opportunity” claims.
In a “traditional” malpractice claim, the patient actually suffers damages as a result of the professional negligence of a health care provider. In other words, a plaintiff is able to show that, more likely than not, the negligent conduct of the health care provider caused the patient to experience an outcome that is worse than he or she would have experienced had the provider not been negligent. For example, if a surgeon leaves an instrument in a patient’s abdomen, and that instrument punctures an organ and requires another surgery to remove the instrument and repair the damage, that patient would have a “traditional” malpractice claim. These cases are governed by the first sentence of MCL 600.2912a(2).
In a “loss of opportunity” case, the patient’s damages are much harder to define. In general, the “loss of opportunity” plaintiff already has a pre-existing risk of a bad outcome, such as a heart attack. As a result of the negligent conduct of a health care provider, however, that risk increases. With the increase in risk comes a “loss of opportunity” to survive or achieve a better result. These cases are governed by the second sentence MCL 600.2912a(2).
Applying the principles of proximate causation to these cases has frustrated lawyers and judges for years. In 2002, the Michigan Court of Appeals decided Fulton v William Beaumont Hospital and interpreted the second sentence of MCL 600.2912a(2) as requiring a reduction of 50 percentage points in order for a plaintiff to recover for a “loss of opportunity” claim. The controversy peaked in 2008, when the Michigan Supreme Court decided Stone v Williamson. That decision involved three separate opinions, none of which was endorsed by a majority of four of the justices. Confusing matters further was that all seven of the then-justices rejected the Fulton approach, but no agreement could be reached for the proper interpretation.
On July 31, 2010, the Michigan Supreme Court finally put the uncertainty surrounding Fulton to rest with O‘Neal v St John Hospital & Medical Center. In a thorough and well-reasoned opinion, Justice Hathaway (who was not a member of the Court when Stone was decided) examined the conflict between Fulton and the statutory language of MCL 600.2912a(2). In short, the majority in O’Neal held that Fulton improperly required plaintiffs to prove that the negligent conduct was the proximate cause of the “loss of opportunity,” rather than merely a proximate cause as required by the statute and long-standing legal principles. Prior to Fulton, a plaintiff was not required to prove that the negligent conduct was the sole cause of his or her injuries – there could be other contributing causes. Fulton eliminated that by precluding recovery for “loss of opportunity” unless the negligent conduct reduced the opportunity for a better result by more than 50 percentage points – essentially excluding other contributing causes.
Perhaps the most important aspect of O’Neal is the Court’s rejection of strict statistical analysis of a patient’s relative chances. Although mathematical possibilities can be persuasive, the decision implicitly recognizes that medicine is not as exact a science as we would like to imagine. A case-by-case, fact-driven inquiry gives injured parties a chance to tell the whole story and not rely exclusively on numerical evidence.
The Michigan Supreme Court’s decision O’Neal puts an end to the confusing numbers game of medical malpractice cases. In doing so, it ends the mechanical, formulaic approach that has caused so many problems for lawyers and injured patients.