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Fulton v. Pontiac General Hospital9/20/2002
ruction advanced by the majority here.
III. Application
As an initial matter, I would reject defendants' argument that plaintiff was required to show that defendants' alleged malpractice more probably than not caused Fulton's death. Defendants' argument misapprehends the nature of plaintiff's claim. It is true that a living person may not recover for the loss of an opportunity to survive. Wickens, supra, 465 Mich at 54. However, that does not mean that the injury that a loss of opportunity to survive claim is designed to compensate is the person's death. Rather, the injury is the loss of an opportunity to survive. As our Supreme Court stated in Falcon, supra at 461, " e thus see the injury resulting from medical malpractice as not only, or necessarily, physical harm, but also as including the loss of opportunity of avoiding physical harm." Therefore, I would conclude that plaintiff was not required to prove that defendants' alleged malpractice more probably than not caused Fulton's death.
Defendants also argue that plaintiff's expert witness testimony failed to raise a genuine issue of material fact regarding causation, sufficient to satisfy MCL 600.2912a(2). I disagree. At his deposition, Dr. Taylor opined that, in February 1995, Fulton was suffering from early invasive cervical cancer. Dr. Taylor testified that the survival rate for early invasive cervical cancer patients in February 1995 was eighty-five percent. Dr. Taylor further testified that Fulton's survival rate would not have changed significantly between February and June 1995, the earliest date when Fulton could have undergone surgery. Given Fulton's December 1995 diagnosis of stage IIB cervical cancer, Dr. Taylor testified that her survival rate had dropped to sixty or sixty-five percent, because of the ten month delay in diagnosis and the seven month delay in treatment.
Dr. Taylor conceded that he could not state, within a reasonable degree of medical certainty, the exact date on which Fulton's cancer progressed to stage IIB. Further, he could not definitively rule out the possibility that Fulton's cancer had already progressed to that stage in February or June 1995. However, he did testify that it was impossible to know the exact progression of Fulton's disease only because of defendants' failure to diagnose it and their resultant failure to perform the appropriate tests. Dr. Taylor did opine, based on Dr. Eldridge's clinical observations, that Fulton's cancer was probably in its early stages in February 1995. Dr. Taylor also repeatedly opined that an earlier diagnosis of Fulton's cancer would have led to an increased chance of survival.
Therefore, plaintiff presented expert testimony that Fulton's opportunity to survive, before defendants' alleged malpractice, exceeded fifty percent. Plaintiff also presented expert testimony that defendants' alleged malpractice decreased Fulton's opportunity to survive by approximately twenty to twenty-five percent. Given this testimony, I would conclude that plaintiff provided sufficient evidence to state a claim for loss of an opportunity to survive, under MCL 600.2912a(2).
I find no merit in defendants' argument that the trial court erroneously denied their motion for summary disposition because Dr. Taylor's affidavit contradicts his deposition testimony. Defendants contend that Dr. Taylor's opinion that Fulton had an eighty-five percent chance of survival before defendants' alleged malpractice appears only in his affidavit, and that Dr. Taylor never testified at his deposition that Fulton had a better than fifty percent opportunity to survive if her cervical cancer had been timely and properly diagnosed. Contending that Dr. Taylor's affi
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