O'NEAL v. ST JOHN HOSP

llaciously compares the lower end of one range (5 percent) with the upper end of the other (20 percent). They do so in order to conclude that the alleged malpractice caused 75 percent of plaintiff's chance of suffering a stroke (15/2o). This failure to "compare like with like" is a patent error of statistical analysis, but it gets thfe majority where it needs to go to support its conclusion that plaintiff has established "but for" cause.

Under the hypothetical example Justice CAVANAGH posed in Stone, a plaintiff whose risk of suffering a bad result increases from 20 percent to 60 percent is unable to prove causation under the more-probable-than-not standard. This is because the plaintiff's risk has not increased by the more than 50 percentage points traditionally required to prove "but for" causation. Justice CAVANAGH applies a very different approach today, and, under that approach, his hypothetical Stone plaintiff would be able to prove causation. Whatever innocence Justice CAVANAGH now feigns in treating both that hypothetical case and the instant case as traditional medical malpractice cases, he is unequivocally converting what used to be a lost opportunity case into a traditional medical malpractice case.
A plaintiff who has a preexisting medical condition is only able to prove "but for" causation when the alleged malpractice increases the plaintiff's risk of suffering a "bad result" by more than 50 percentage points. Otherwise, there is no way to exclude, as Justice CAVANAGH (and this Court) has previously required, all "other reasonable hypotheses with a fair amount of certainty." Skinner, 445 Mich at 166 (quotation marks and citation omitted). The approach adopted by the opinions of Justices HATHAWAY and CAVANAGH negates this basic requirement of proximate cause and would allow a plaintiff to recover for a bad result even in situations in which other, nonmalpractice "causes" for the result predominated in creating it.
The new majority's approach would allow a plaintiff to recover in full from a doctor who, for example, failed to diagnose cancer at its earliest stages, but still diagnosed it at a stage where it was much more probable than not that a patient would survive. To put figures on this situation, suppose a plaintiff's risk of dying from cancer is 1 percent if it is caught at its earliest stages. A doctor who fails to catch the cancer at that stage, but who catches it and treats it at a stage where the risk of dying from cancer is 3 percent, then, is liable, under the new majority's new approach, for the entire injury, should one occur, because the failure to diagnose contributed to 2/3 of the risk of injury. This is true, according to the new majority, even though the doctor only decreased the patient's chance of surviving by 2 percentage points, from 99 percent to 97 percent.
By shifting many lost opportunity claims into traditional medical malpractice claims, the new majority creates additional liability of a defendant for the entire injury, not just for the increased risk of injury, as lost opportunity claims provide. See Falcon, 436 Mich at 471 (opinion by LEVIN, J.) ("In this case, 37.5 percent times the damages recoverable for wrongful death would be an appropriate measure of damages."). This shift in determining a defendant's liability is essential to understanding what the new majority is trying to accomplish in this case. Now plaintiff's need only prove that a doctor's negligence contributed to the risk of injury, not that his negligence actually caused the injury. And no amount of pretended ignorance about the significance of these changes by members of the new majority alters their fundamental and radical impact on this area of the law.

See Lewis-Beck, Bryman, Liao, eds, 1 The SAGE Encyclopedia of Social Science Research Methods (Thousand Oaks, Cal: SAGE Publications, Inc, 2004), p 117 (" Ceteris paribus . . . refers to the process of comparing like with like when asserting a causal relationship or the effect of one variable on another.").

The new majority calculates that defendants' alleged malpractice caused an increase in plaintiff's risk of suffering a stroke by 15 percentage points (5 percent risk without malpractice subtracted from 20 percent risk with malpractice). They then divide that figure by plaintiff's 20 percent risk of a stroke with malpractice to conclude that the alleged malpractice caused 75 percent of plaintiff's chance of suffering a stroke. See ante at 504, 512.

Finally, Justice HATHAWAY's opinion concludes that "plaintiff established a question of fact on the issue of proximate V causation because plaintiff's experts opined that defendants' negligence more probably than not was the proximate cause of plaintiff's injuries." This statement might have had more relevance if it had been supported by the experts' actual statistical evidence of plaintiff's chances of suffering the stroke. However, as discussed above, plaintiff's experts were unable to show proximate causation between the alleged malpractice and plaintiff's stroke. All they were able to show was a connection between the alleged malpractice and plaintiff's increased likelihood of suffering a stroke, from between 5 to 10 percent to between 10 to 20 percent. Justice HATHAWAY's analysis, such as it is, allows an expert to say certain "magic words" about proximate causation, while presenting statistical evidence to the contrary.

Ante, at 490.

As stated, this case is a prototypical lost opportunity case because plaintiff cannot establish that, more probably than not, defendants proximately caused his stroke because he was predisposed to suffer one, his risk being in the range of 5 to 10 percent, even with medical care that satisfied plaintiff's proposed standard of care. Accordingly, I vigorously dissent from the conclusion of a majority of this Court that plaintiff asserted a traditional medical malpractice claim and would instead conclude that plaintiff asserted a lost opportunity claim.

C. MCL 600.2912a(2) IS .(STILL) UNENFORCEABLE AS ENACTED

Because the new majority concludes that plaintiff's claim is a traditional medical malpractice claim, it does not need to reach the question whether plaintiff's claim meets the requirements of the second sentence of MCL 600.2912a(2), which applies only to lost opportunity claims. The decision of the new majority to treat this case as a traditional medical malpractice claim, of course, obviates the need for interpreting the second sentence of MCL 600.2912a(2) because the new majority essentially treats all medical malpractice claims under the weakened Falcon causation standard here-to-fore applicable only to lost opportunity claims. Therefore, the decision of the new majority to overrule the Court of Appeals' decision in Fulton, to the extent Fulton drew a line between lost opportunity cases and traditional medical malpractice cases, also does away with Fulton's application of the sentence in § 2912a(2) that applies to lost opportunity cases. Fulton only applies to lost opportunity cases. By concluding that the instant case sounds in traditional medical malpractice, the new majority essentially writes the decision in Fulton out of existence. Thus, its expansive decision in this case is characteristic of the new majority that overreaches in its decisions in order to achieve its own preferred policy outcomes.

Although the "new majority" has only been in existence 18 months, it has an impressive record of overturning cases consistent with the Chief Justice's promise to "undo . . . the damage that the Republican-dominated court has done." She Said, Detroit Free Press, December 10, 2008, p 2A.
By my count, the new majority has now overturned this term 12 cases in addition to the one that it overturns today:
1. In People v Feezel, 486 Mich 184; 783 NW2d 67 (2010), the new majority overruled People v Derror, 475 Mich 316; 715 NW2d 822 (2006).
2. In McCormick v Carrier, 487 Mich 180; ___ NW2d ___ (2010), the new majority overruled Kreiner v Fischer, 471 Mich 109; 683 NW2d 611 (2004).
In Lansing Sch Ed Ass'n v Lansing Bd of Ed, 487 Mich 349; ___ NW2d ___ (2010), the new majority overruled the following cases:
3. Lee v Macomb Co Bd of Comm'rs, 464 Mich 726; 629 NW2d 900 (2001);
4. Crawford v Dep't of Civil Serv, 466 Mich 250; 645 NW2d 6 (2002);
5. Nat'l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004);
6. Associated Builders Contractors v Dep't of Consumer Indus Servs Dir, 472 Mich 117, 124-127; 693 NW2d 374 (2005);
7. Mich Chiropractic Council v Comm'r of the Office of Fin Ins Servs, 475 Mich 363; 716 NW2d 561 (2006);
8. Rohde v Ann Arbor Pub Sch, 479 Mich 336; 737 NW2d 158 (2007);
9. Mich Citizens for Water Conservation v Nestle Waters North America Inc, 479 Mich 280, 302-303; 737 NW2d 447 (2007); and
10. Manuel v Gill, 481 Mich 637; 753 NW2d 48 (2008).
11. In Bezeau v Palace Sports Entertainment, Inc, 487 Mich 455; ___ NW2d ___ (2010), the new majority expressly overruled the limited retroactive effect of Karaczewski v Farbman Stein Co, 478 Mich 28; 732 NW2d 56 (2007).
12. In Univ of Mich Regents v Titan Ins Co, 487 Mich 289; ___ NW2d ___ (2010), the new majority overruled Cameron v Auto Club Ins Ass'n, 476 Mich 55; 718 NW2d 784 (2006).
Given this list of "lately departed" decisions of the "Republican-dominated Court," killing one Court of Appeals case such as Fulton — even if entirely irrelevant to the question the new majority purports to address here — is hardly surprising for the new majority which, before its members became the majority, were individually and collectively notably more "hawkish" on preserving precedent. See Pollard v Suburban Mobility Auth for Regional Transp, 486 Mich 963, 963-965 (2010) (YOUNG, J., dissenting statement). As in three other cases decided this term, Justice WEAVER repeats her tired and unsuccessful attempt to defend her changing position on stare decisis. Ante at 513-515. See also Univ of Mich Regents, 487 Mich at 310-314 (WEAVER, J., concurring); Lansing Sch Ed Ass'n, 487 Mich at 381-384 (WEAVER, J., concurring); McCormick, 487 Mich at 223-226 (WEAVER, J., concurring). Her position does not become any more convincing with repetition. My dissenting opinion in Univ of Mich Regents, 487 Mich at 325-327 n 11 (YOUNG, J., dissenting), explains in full why Justice WEAVER'S position is merely an attempt to justify stark judicial policy-making.

The Legislature added subsection (2) to MCL 600.2912a shortly after the Falcon Court created the new claim for loss of an opportunity to survive. The new subsection provides:

In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. 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%.

As the lead opinion in Stone aptly observed, there are multiple problems in determining whether the requirements of MCL 600.2912a(2) apply in any particular case. As stated above, the two sentences are internally inconsistent and, therefore, create a paradox:

[T]he first sentence of this new subsection codifies and reiterates the common-law requirement that a plaintiff show that the defendant's malpractice more probably than not caused the plaintiff's injury. The second sentence of subsection 2 adds that, in medical-malpractice cases, a "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%." However, one must keep in mind that the relevant caselaw when subsection 2 was enacted held that the lost-opportunity doctrine applies " in situations where a plaintiff cannot prove that a defendant's actions were the cause of his injuries. . . ." Vitale, [ 150 Mich App] at 502 (emphasis added). That is, the first sentence of subsection 2 requires plaintiff's in every medical-malpractice case to show the defendant's malpractice proximately caused the injury while, at the same time, the second sentence refers to cases in which such proof not only is unnecessary, but is impossible.[ ]

Even ignoring the internal inconsistency, the second sentence of subsection (2) is incomprehensible as written. Subsequent to the amendment, the split Court of Appeals panel in Fulton offered two contradictory interpretations of the second sentence, neither of which was consistent with the text of that sentence as enacted. The Fulton majority determined that "MCL 600.2912a(2) requires a plaintiff to show that the loss of the opportunity to survive or achieve a better result exceeds fifty percent." As the lead opinion in Stone indicated, this interpretation "improperly adds to the statute the words `loss of,' effectively replacing the word `opportunity' where it is used the second time with the phrase `loss of opportunity.'" Thus, the Fulton majority essentially rewrote the second sentence of § 2912a(2) to include the following bracketed words: "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 [loss of] opportunity was greater than 50%."

Fulton, 253 Mich App at 83.

Stone, 482 Mich at 159 n 9 (opinion by TAYLOR, C.J.).

The dissenting judge in Fulton did not fare any better. His interpretation of MCL 600.2912a(2) required a plaintiff "`to show that, had the defendant not been negligent, there was a greater than fifty percent chance of survival or a better result.'" This interpretation essentially rewrote the second sentence of § 2912a(2) to include the following bracketed word: "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 [initial] opportunity was greater than 50%."

Fulton, 253 Mich App at 91 (SMOLENSKI, J., dissenting), quoting Wickens v Oakwood Healthcare Sys, 242 Mich App 385, 392; 619 NW2d 7 (2000). The published Court of Appeals decision in Wickens was not controlling in Fulton because this Court had already reversed in part and vacated in part that published decision. Wickens, 465 Mich at 62.

Thus, both the majority and the dissent in Fulton inserted additional words into the statute. Their reasons for doing so were identical: each believed the additional language was necessary to enforce the perceived legislative intent to respond to the Falcon Court's creation of the lost opportunity claim. However, these multiple interpretations show that, even if they were correct that the amendment was a legislative response to Falcon, the scope of such response was far from clear.

In the end, the lead opinion in Stone concluded:

It is confounding to attempt to ascertain just what the Legislature was trying to do with this amendment. . . .

As written, the second sentence of MCL 600.2912a(2) can be made understandable only by adding words or by redefining "injury" in a way significantly contrary to the mass of caselaw at the time the sentence was added. . . . None of these multiple, contradictory interpretations can be shown to be the "correct" construction of legislative intent. Choosing between them can only be a guess. . . . Accordingly, I conclude that the second sentence of subsection 2 cannot be judicially enforced because doing so requires the Court to impose its own prerogative on an act of the Legislature.[ ]

Since this Court's split opinions in Stone, the Legislature has not clarified the confusion surrounding the appropriate interpretation of MCL 600.2912a(2). Therefore, my position remains that the provision is unenforceable as enacted.

The decision by the new majority that this case represents a traditional medical malpractice case further muddles this important area of the law. Moreover, three justices of the new majority have changed their published positions over the past several years on the nature of the evidence required to prove proximate cause.

If the numerous fractured decisions and inconsistent opinions of the members of this Court fail to demonstrate that this statute is impossible to interpret reasonably, then it is hard to envision a better illustration that MCL 600.2912a(2) is inherently internally inconsistent and cannot be parsed.

IV CONCLUSION

Confusion and uncertainty in the law prevent citizens from arranging their affairs in a predictable fashion. This Court initially created uncertainty in adopting the lost opportunity claim in Falcon because it was so profoundly at odds with traditional principles of causation. It is no wonder that the Legislature had difficulty reconciling " Falcon causation" with the traditional causation that the Legislature clearly desired to maintain in medical malpractice claims. Today, the new majority has created even more uncertainty in interpreting the legislative response to Falcon. While the result in this case undoubtedly serves the interests of lawyers who litigate medical malpractice cases, it poorly serves the people of this state to have the law become even more incomprehensibly muddled. This is not an accidental act, but one intentionally designed to thwart the legislative directive that the plaintiff prove the traditional requirement of proximate cause in every "action alleging medical malpractice. . . ." Judges, as neutral arbiters whose function is merely to interpret the laws enacted through the democratic process, should not be agents of "societal change" they desire, and they certainly should not contribute to confusion and chaos in the law. The new majority's resolution of this case fails on both counts.

MCL 600.2912a(2).

Plaintiff'S claim is a prototypical lost opportunity claim. As such, the second sentence of MCL 600.2912a(2) expressly controls plaintiff's claim. However, I continue to maintain that § 2912a(2) is unenforceable as enacted, and I reiterate former Chief Justice TAYLOR'S call for the Legislature "to reexamine its goal and the policies it wishes to promote and strive to better articulate its intent in that regard." Today, that call is more urgent than it was just two years ago.

Stone, 482 Mich at 165 (opinion by TAYLOR, C.J.).

Today is a sad day for predictability in Michigan law. The disorder sown by the new majority in their several opinions speaks poorly of the quality of decision-making in this Court. Doctrinal destruction aside, the obvious manipulation of the statistical evidence by the justices of the new majority to achieve their goal of creating a cause of action when the proofs have failed is itself worthy of condemnation.

For all of the reasons stated, I vigorously dissent from overreaching by the new majority and, instead, would vacate as improvidently entered this Court's September 30, 2009, order granting leave to appeal.

CORRIGAN, J., concurred with YOUNG, J.