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Magnotta v. Bon Secours Hospital12/17/2002
UNPUBLISHED
Plaintiff appeals as of right from the trial court's order granting summary disposition to defendant Bon Secours Hospital pursuant to MCR 2.116(C)(10) in this medical malpractice action. We affirm.
Plaintiff first argues that the lower court erred in granting summary disposition on the basis that plaintiff produced no evidence that she had a greater than fifty-percent opportunity to achieve a better result. We disagree.
A motion for summary disposition pursuant to MCR 2.116(C)(10), which tests the factual support for a claim, is reviewed de novo. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999); Oade v Jackson National Life Ins Co of Michigan, 465 Mich 244, 251; 632 NW2d 126 (2001). When deciding a motion for summary disposition under MCR 2.116(C)(10), the court considers affidavits, pleadings, depositions, admissions, and all other documentary evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the nonmoving party. Maiden v Rozweed, 461 Mich 109, 120; 597 NW2d 817 (1999). If the evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10); Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996).
To prove medical malpractice, a plaintiff is required to show that the defendant's negligence proximately caused the plaintiff's injuries. Weymers v Khera, 454 Mich 639, 647; 563 NW2d 647 (1997); Dykes v Beaumont Hospital, 246 Mich App 471, 476-477; 633 NW2d 440 (2001). A plaintiff's burden of proof in a medical malpractice case is governed by MCL 600.2912a(2), which provides:
Proximate cause of defendant's negligence; recovery barred where opportunity to survive, or for better result, was less than 50%. 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%. See Dykes, supra at 477; Wickens v Oakwood Healthcare System, 242 Mich App 385, 392; 619 NW2d 7 (2000), rev'd in part 465 Mich 53 (2001).
Plaintiff essentially asserts a loss of opportunity to achieve a better result. According to plaintiff, had the proper antibiotics been administered, she might have had a greater than fifty- percent chance to save her prosthetic knee. To survive summary disposition, however, plaintiff had the burden of producing evidence to support this claim. Plaintiff failed to meet that burden.
Plaintiff argues that the deposition testimony of her treating orthopedic surgeon established that she had a greater than fifty-percent chance at a better result had the appropriate antibiotics been administered. Plaintiff's reliance on this testimony is misplaced. Although plaintiff's surgeon testified that he hoped plaintiff's prosthetic knee would remain intact without complications, he further testified that once infection occurred and could not be successfully debrided, the chances of salvaging the knee were not very good. At best, the deposition testimony was inconclusive. However, in an affidavit, the surgeon opined that more likely than not any type of antibiotic therapy would have failed and the result would have been the same. Thus, plaintiff did not counter defendant's motion with evidence to support the existence of a question of fact regarding whether she had a greater than fifty percent chance of a better result.
Moreover, plaintiff's o
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