 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Jarzombek v. Clinton Women's Health Care2/10/2005
UNPUBLISHED
Plaintiff appeals as of right from an order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). We reverse and remand. This case is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiff brought this medical malpractice action, alleging that defendants failed to timely diagnose and treat her ectopic pregnancy with the drug Methotrexate, and also failed to realize that the drug treatment was unsuccessful and that additional drug treatment or surgery was necessary. Plaintiff alleges that, as a result of defendant's alleged malpractice, she was required to undergo emergency surgery to remove her fallopian tube. The trial court granted defendants' motion for summary disposition, concluding that there was no genuine issue of material fact that there was not a greater than fifty percent probability that plaintiff's fallopian tube could have been saved but for defendants' alleged malpractice and, therefore, defendants were entitled to judgment as a matter of law under MCL 600.2912a(2).
Plaintiff's complaint alleges in part that defendants committed malpractice because they failed to diagnose and treat her ectopic pregnancy with Methotrexate before June 8, 2001. Plaintiff's expert, Dr. Robert Zack, testified in his deposition that there would have been a ninety percent likelihood of successful treatment with Methotrexate if plaintiff had received the injection on June 1, but the likelihood of successful treatment dropped to sixty to ninety percent by June 8.
MCL 600.2912a(2) 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%.
In Fulton v William Beaumont Hospital, 253 Mich App 70, 83; 655 NW2d 569 (2002), this Court held 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." In other words, to satisfy the proximate cause element in a medical malpractice action, the plaintiff must show that the differential between the plaintiff's initial opportunity to survive or achieve a better result and the plaintiff's opportunity following the malpractice is greater than fifty percent. See id. at 82-84.
Plaintiff acknowledges that the trial court correctly applied this Court's decision in Fulton with respect to the malpractice claim involving defendants' alleged failure to treat her with Methotrexate before June 8. But plaintiff maintains that Fulton was wrongly decided and urges this Court to express its disagreement with that decision and follow it only because it is required to do so under MCR 7.215(J), thereby enabling the judges of this Court to be polled to determine whether a conflict panel should be convened to resolve the matter. We decline to do so. We note that in Ensink v Mecosta County General Hospital, 262 Mich App 518; 687 NW2d 143 (2004), lv pending, a different panel of this Court followed Fulton only because it was required to do so under MCR 7.215(J)(2). The judges of this Court were polled pursuant to MCR 7.215(J)(3), and the result was evenly divided, so a special panel was not convened. Ensink v Mecosta County General Hospital, 262 Mich App 801 (2004).
Furthermor
Page 1 2 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|