WHEN DOES A LOST-OPPORTUNITY CLAIM EXIST? While the second sentence of MCL a(2) provides a causation standard

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1 WHEN DOES A LOST-OPPORTUNITY CLAIM EXIST? While the second sentence of MCL a(2) provides a causation standard for medical malpractice claims alleging loss of opportunity to survive or achieve a better result, this sentence has been rendered a nullity by trial courts and Court of Appeals decisions which have misinterpreted the Michigan Supreme Court s decisions regarding the lost-opportunity doctrine. The trial courts and the Court of Appeals have misinterpreted the Supreme Court s rulings regarding the lost-opportunity doctrine by reading them to stand for the proposition that all claims are traditional medical malpractice claims covered under the first sentence of MCL a(2), unless the plaintiff specifically alleges in his or her complaint damages for loss of opportunity to survive or to achieve a better result. This essentially means that no malpractice claims will ever be lost-opportunity cases because plaintiffs will engage in artful pleading to ensure that the allegations in their complaint do not come within the second sentence of MCL a(2). The better approach is to look behind the complaint to the nature of the plaintiff s damages and determine whether the plaintiff is really alleging loss of opportunity to survive or achieve a better result. If the nature of the plaintiff s allegations are really lost-opportunity claims, then the Court must apply the second sentence of MCL a(2) even if it means dismissal of part or all of the plaintiff s claims. The first Supreme Court case to analyze the issue of whether a complaint was a lost-opportunity case was Stone v Williamson 1. The Supreme Court in Stone upheld the jury s verdict in favor of the plaintiff on the basis that there was sufficient evidence for the jury to conclude, under traditional notions of proximate cause, as set forth in the first Mich 144; 753 NW2d 106 (2008)

2 sentence of MCL a(2), that the failure of the defendant to diagnose the plaintiff s abdominal aortic aneurysm caused it to rupture resulting in substantial injuries to the plaintiff including amputation of both legs at mid-thigh level. 2 The plaintiff in Stone alleged that he never pleaded his case as a lost-opportunity case. He also alleged, and the Court agreed, that a case involving lost opportunity occurs only where a plaintiff cannot prove that the defendant s acts or omissions proximately caused his injuries, but can prove that the defendant s acts or omissions deprived him of some chance to avoid those injuries. 3 Stated differently, a lost-opportunity case involves a situation in which an injury might have occurred anyway, but in which the defendant s act or omission hastened or worsened it in such a way that the plaintiff suffered more severe physical injury than he or she would have had the negligence not occurred. 4 According to Stone, this is the type of situation that the Legislature envisioned when it referred to lost opportunity in MCL a(2). The Supreme Court reasoned in Stone that because the plaintiff presented sufficient evidence that the delay in diagnosing the abdominal aortic aneurysm proximately caused the aneurysm to rupture, the plaintiff proved a traditional medical malpractice claim and the second sentence of MCL a(2) was inapplicable. The test that emerges from Stone is that a lost-opportunity claim exists where the plaintiff cannot prove that the defendant s acts or omissions caused the plaintiff s injury, 2 Stone, 482 Mich at Id at Id at

3 but he or she can prove that the defendant s acts or omissions resulted in a worsening of the plaintiff s injury that might not have occurred had the defendant complied with the applicable standard of care. Because the plaintiff in Stone could prove that the delay in diagnosing the aortic aneurysm actually produced and caused the plaintiff s injury (ruptured aneurysm), the plaintiff s claim was not a lost-opportunity claim. In Velez v Tuma 5, the Court of Appeals held that the lost-opportunity doctrine was not applicable because the plaintiff did not plead a loss-of-opportunity claim. There, the plaintiff claimed that the defendant s failure to diagnose his vascular insufficiency resulted in the amputation of his left leg below the knee. 6 The Court held that because the plaintiff alleged that the defendant s conduct resulted in an actual physical injury the loss of his leg below the knee, the lost-opportunity doctrine was inapplicable. 7 Similarly, in Ykimoff v WA Foote Mem l Hosp 8, the Court held that the lost-opportunity doctrine was not applicable because the plaintiff pleaded only a basic negligence action and not a lost opportunity to obtain a better result. The conclusion that can be reached from Velez and Ykimoff, is that regardless of the underlying nature of the action, if the complaint and affidavit of merit do not plead a lost-opportunity claim, courts will be reluctant to find one. However, this approach elevates form over substance and allows artful pleading to be the order of the day. The Court of Appeals has recognized that regardless of the word choice used in a complaint, Mich App 396, 399; 770 NW2d 89 (2009). 6 Id at Id at Mich App 80; 770 NW2d 89 (2009) 3

4 it is the underlying nature of the action that controls. 9 In holding that the lost-opportunity doctrine applied, the Court in Klein, refused to elevate form over substance and stated,... regardless of the plaintiff s word choice, the gravamen of the plaintiff s complaint remains a cause of action for loss of opportunity to survive brought on the basis of defendant s alleged malpractice. 10 The most recent Supreme Court pronouncement on the applicability of the lostopportunity doctrine is O Neal v St John Hosp & Med Ctr. 11 There, the Supreme Court again held that the lost-opportunity doctrine did not apply and that the case was a traditional medical malpractice case. In O Neal the plaintiff alleged that the defendant s failure to diagnose the plaintiff with acute chest syndrome (ACS), a complication of sickle cell anemia, and perform a timely blood transfusion or exchange transfusion, caused the plaintiff s stroke. Two of the plaintiff s experts opined that, more likely than not, had the transfusion been performed sooner, the plaintiff would not have suffered a stroke. The plaintiff s third expert opined that a timely exchange transfusion would have reduced the risk of a stroke from 10 or 20 percent to 5 or 10 percent. Looking solely at the experts statistics, the plaintiff s claim under Fulton v William Beaumont Hospital 12 would not survive summary disposition, if it were a lost-opportunity claim. 9 Klein v Kik, 264 Mich App 682, 686; 692 NW2d 854 (2005). 10 Klein, 264 Mich App at Mich 485; 791 NW2d 853 (2010) Mich App 70; 655 NW2d 569 (2002). 4

5 The Court held that the plaintiff s claim was a traditional medical malpractice claim and that Fulton did not apply. The Court held that the plaintiff set forth sufficient evidence of causation, based on his other experts testimony, to establish a traditional medical malpractice claim. In O Neal the Supreme Court stated that the second sentence of 2912a(2) applies only to medical malpractice cases that plead loss of opportunity and not to those that plead traditional medical malpractice. O Neal, 487 Mich at 505. Significantly, the Court stated... we do not address the scope, extent, or nature of loss-of-opportunity claims as that issue is not before us. Id at 505. The O Neal Court did not address what it means to plead a loss-of-opportunity claim. Does this mean that plaintiffs specifically have to have a separate count in their complaint alleging loss of opportunity, or is it sufficient if the complaint alleges that the defendant s breach of the standard of care resulted in a worse outcome than would have occurred had the defendant complied with the standard of care? There is no difference between specifically stating that the defendant s negligence resulted in the loss of opportunity to achieve a better result and alleging that the defendant s negligence deprived the plaintiff of a better outcome. As stated previously, the Court of Appeals in Klein recognized that there are multiple ways of stating the same thing and simply because a plaintiff does not specifically allege a loss-of-opportunity claim does not mean the claim is not a loss-of-opportunity claim. The better approach is to look behind the labels of the complaint to the gravamen of the action to determine whether the plaintiff is really alleging a lost-opportunity claim or a traditional malpractice claim. This requires looking at the deposition testimony of the plaintiff s experts and the affidavits of merit, as well as any discovery to determine 5

6 whether the nature of the plaintiff s claim sounds in traditional malpractice or loss of opportunity. If the pleadings, depositions and affidavits of merit indicate that the injury would have occurred anyway, regardless of appropriate medical treatment, but that the only allegations are that the defendant s negligence resulted in a worsening of the plaintiff s injury, then a loss-of-opportunity claim exists. See Stone, supra. This approach is not inherently inconsistent with O Neal because O Neal did not address the scope of loss-of-opportunity claims or what it means to plead a loss-of-opportunity claim. This approach, however, is consistent with the Stone court s assessment of when a loss-of-opportunity claim exists. Furthermore, looking behind the labels placed on pleadings has long been the rule, rather than the exception, and it should be applied in the lost-opportunity context to determine when a lost-opportunity case exists. 6