Shaffer v. ST. JOSEPH'S MERCY HOSPITALS , 482 Mich. 1040 ( 2008 )

757 N.W.2d 121 (2008)

Rachel SHAFFER, Plaintiff-Appellee,
v.
ST. JOSEPH'S MERCY HOSPITALS OF MACOMB and St. Joseph's Mercy of Macomb, a/k/a Mercy Mount Clemens Corporation, Defendant-Appellant, and
St. Joseph Mercy Health System, a/k/a Trinity Health-Michigan, Paul Moczarski, D.O., and Macomb Emergency Care Physicians, P.C., Defendants.

Docket No. 135781. COA No. 275299.

Supreme Court of Michigan.

October 31, 2008.

Order

By order of April 28, 2008, the application for leave to appeal the December 27, 2007 judgment of the Court of Appeals was held in abeyance pending the decision in Stone v. Williamson (Docket No. 133986). On order of the Court, the case having been decided on July 24, 2008, 482 Mich. 144, 753 N.W.2d 106 (2008), the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should now be reviewed by this Court.

MARKMAN J., (concurring).

The trial court denied defendant's motion for summary disposition, and the Court of Appeals affirmed. MCL 600.2912a(2) provides, in pertinent part, "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%." We recently addressed this provision with some considerable lack of consensus in Stone v. Williamson, 482 Mich. 144, 753 N.W.2d 106 (2008). Given their decisions in Stone, I believe it is clear that my six colleagues would either conclude that this is not a lost opportunity cause of action, or, if it is, that plaintiff has satisfied the § 2912a(2) requirement. For that reason, I concur in the denial order, even though I would reverse had my position in Stone prevailed.

Plaintiff's expert testified that the decedent's premalpractice chance of a better result was "greater than 50%." However, there is no testimony regarding the decedent's postmalpractice chance of a better result. I believe that this is a lost opportunity cause of action because "it is possible that the bad outcome would have occurred even if the patient had received proper treatment." Stone, supra at 218, 753 N.W.2d 106 (Markman, J., concurring in the result only). Further, because plaintiff has presented no testimony regarding her postmalpractice chance of a better result, it is impossible to determine whether plaintiff satisfies the § 2912a requirement. Because plaintiff has the burden of demonstrating that the § 2912a requirement is satisfied, and she has not done so here, I would reverse. However, because my interpretation of § 2912a did not carry the day in Stone, I accede to the denial order.