D Estate of Patricia Benigni v. Samir Alsawah Md ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL BENIGNI, Personal Representative of FOR PUBLICATION
the ESTATE OF PATRICIA BENIGNI, September 8, 2022
Plaintiff-Appellant,
v No. 357033
St. Clair Circuit Court
SAMIR ALSAWAH, M.D., and HURON LC No. 19-001198-NH
MEDICAL CENTER, PC,
Defendants-Appellees.
Before: MARKEY, P.J., and SHAPIRO and PATEL, JJ.
MARKEY, P.J. (dissenting).
I respectfully dissent. Plaintiff, Michael Benigni, as the Personal Representative of the
Estate of Patricia Benigni, appeals by right the trial court’s order granting summary disposition in
favor of defendants, Samir Alsawah, M.D., and Huron Medical Center, PC (HMC), in this medical
malpractice action. The decedent, Patricia Benigni,1 died from metastatic colorectal cancer.
Plaintiff contended that Dr. Alsawah failed to timely diagnose the metastasized cancer that had
spread to Patricia’s liver and possibly her adrenal glands and that Dr. Alsawah improperly
investigated and evaluated Patricia’s dramatically-increasing carcinoembryonic antigen (CEA)
level as revealed by regular testing during years of cancer surveillance following resection of the
original tumor. Plaintiff’s theory was that the rising CEA level suggested metastasis of the cancer
and that had Dr. Alsawah adequately explored that possibility the metastasis would have been
discovered and treated a couple of years before the actual date of diagnosis, at which later date
surgery was only “technically feasible” and not pursued. This appeal focuses on the application
of MCL 600.2912a(2), which provides, in pertinent part, that “[i]n 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%.” Judicial construction of this
provision has a tortured history in Michigan civil jurisprudence. In Fulton v William Beaumont
Hosp, 253 Mich App 70; 655 NW2d 569 (2002), overruled in part by O’Neal v St John Hosp &
Med Ctr, 487 Mich 485; 791 NW2d 853 (2010), this Court applied a percentage-point-differential
1
Patricia was plaintiff’s wife.
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formula—subtracting the statistical chance of survivability given the malpractice from the
statistical chance of survivability absent any malpractice—in determining whether the lost
opportunity to survive was greater than 50% under MCL 600.2912a(2). In O’Neal, a majority of
justices of the Michigan Supreme Court did not agree with Fulton’s percentage-point-differential
formula when applied to a traditional medical malpractice claim to assess causation. As
explained in detail below, I believe that we remain bound by Fulton for purposes of a true loss-of-
opportunity claim, but I implore our Supreme Court to, at first chance, provide some much-needed
clarification regarding the proper construction of the lost-opportunity provision in MCL
600.2912a(2). In the case before us, I conclude on the basis of the documentary evidence that
plaintiff’s suit is ultimately too speculative and that there is no genuine issue of material fact that
Patricia’s lost opportunity to survive was not greater than 50%. I disagree with my colleagues that
this case is not a lost-opportunity suit, although the muddled caselaw makes that determination
difficult to assess. Moreover, plaintiff has waived any right to pursue this case as a traditional
medical malpractice action. Accordingly, I would affirm the trial court’s ruling.
I. BACKGROUND
A. OVERVIEW OF MEDICAL HISTORY AND EVENTS
Patricia had a medical history that included hypertension, diabetes, hyperlipidemia, and a
benign brain tumor that resulted in a left temporal craniotomy in 2005. She had a stroke shortly
after the tumor was removed, which left her with various deficits. Patricia also suffered seizures
after the stroke. In 2012, Patricia was diagnosed with stage III colorectal cancer. She was referred
to HMC and Dr. Alsawah, a board-certified medical oncologist, in November 2012. Patricia
received neoadjuvant chemotherapy and radiation treatment in preparation for surgery.
Subsequently, a resection to remove the tumor was performed in February 2013. From March to
September 2013, Patricia received nine rounds of adjuvant chemotherapy to lower the risk of
recurrence and to address lymph node concerns. Throughout 2013, Dr. Alsawah checked and
monitored Patricia’s CEA level approximately every four to six weeks, with the level ranging from
1.6 to 4.4 nanograms per milliliter of blood (ng/mL) in nine separate tests.2 An abdominal and
pelvic computerized tomography (CT) scan in 2013 did not reveal recurrence or spread of the
cancer.
In 2014, Dr. Alsawah saw Patricia in his office approximately every three months. In
March 2014, Patricia’s CEA level was checked, and it measured 4.5 ng/mL. This was the only
CEA test performed in 2014. A colonoscopy and CT scan performed in 2014 showed no signs of
recurrence or metastasis of the cancer. Patricia’s CEA level was 8.3 ng/mL in January 2015 and
rose to 24.2 ng/mL in April 2015. In November 2015, her CEA level had once again risen, testing
at 38.6 ng/mL. A CT scan performed in 2015 was normal, reflecting no recurrence or spread of
the cancer. Dr. Alsawah continued to see Patricia on a regular basis. Patricia had a CEA level of
59.3 ng/mL in May 2016. A CT scan and colonoscopy performed in 2016 did not indicate
recurrence or metastasis of the cancer. When Patricia saw Dr. Alsawah on August 23, 2016, he
2
I discuss below the evidence regarding CEA levels and their meaning.
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again tested her CEA level, which measured 78.5 ng/mL. She also complained of fatigue.3 Dr.
Alsawah now began scheduling Patricia for visits every six months.
In February 2017, Patricia’s CEA level was 175.9 ng/mL. In August 2017, her CEA level
measured 459 ng/mL, and Patricia complained of weakness and fatigue. A CT scan performed in
August 2017 revealed a large liver mass suspicious of metastasis with possible involvement of the
adrenal glands. There was no apparent indication of tumor recurrence at the original surgical site.
A positron emission tomography (PET) scan also showed a large hepatic mass and additionally
gave rise to cancer concerns regarding the right adrenal gland. Patricia had a liver biopsy on
October 9, 2017, which confirmed a metastatic adenocarcinoma.
On October 23, 2017, Patricia conferred with Dr. Vandad Raofi, a surgeon, regarding
possible treatment of the metastasized cancer.4 With respect to an assessment and plan, Dr. Raofi
wrote:
Ms. Benigni is a 68-year-old lady who has biopsy-proven metastatic lesion
to the liver. Unfortunately the location of the lesion would require major resection
in the form of a trisegmentectomy. While this is technically feasible, our concern
is the patient’s overall performance status which can significantly affect her
recovery from major hepatic surgery. Furthermore there is concern for metastatic
disease to the adrenal gland. Even though the adrenal gland can also be surgically
removed, once there is presence of hematogenous spread in two different visceral
organs, the overall prognosis is inferior than that for metastatic liver disease only.
These findings were discussed with the patient and husband in detail. We did also
review the films with Dr. Lai from radiology [and] the right adrenal gland is
amenable to percutaneous biopsy. Therefore prior to making any final surgical
3
Patricia’s medical history over the years following the 2013 surgery, which ostensibly was
unrelated to her cancer surveillance, included some injuries from a couple of falls, gait
disturbances, vision diminishment, neurological decline, depression, and mild cognitive
impairment.
4
In reviewing the circumstances surrounding Patricia’s visit, Dr. Raofi noted in a report:
With regards to her colorectal cancer, despite elevated CEA levels, the
patient had negative imagings until recently. However recent imaging shows a large
mass in the right lobe and left medial section of the liver. There is also enlargement
of both adrenal glands concerning for metastatic disease, with the right being worse
than the left.
Dr. Raofi also indicated that a “[r]ecent MRI . . . shows a very large mass in the right lobe of the
liver and extending into the left medial segment[,]” and “[t]here is also significant enlargement of
the right adrenal gland suspicious for metastatic disease.”
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recommendations, we will schedule the patient for biopsy of the right adrenal gland
and contact her once the results are available.
Patricia chose not to have surgery or any more treatment, and she died in February 2018.
B. THE COMPLAINT
On May 24, 2019, plaintiff filed a medical malpractice complaint against HMC and Dr.
Alsawah. Count I alleged negligence by Dr. Alsawah. Plaintiff maintained that Dr. Alsawah
breached the standard of care by failing to “[e]valuate and/or investigate the cause of [Patricia’s]
increasing CEA levels[,]” by failing to “[w]ork up the patient to rule out the presence of metastatic
disease[,]” and by committing “[o]ther acts and/or omissions to be determined throughout the
course of discovery.” Plaintiff also alleged:
34. As a direct and proximate result of the aforementioned violations of the
standard of care by Dr. Alsawah, there was a delay in the diagnosis of Patricia
Benigni’s metastatic disease.
35. As a result of the delay in diagnosis, there was an advancement in the
disease process resulting in the formation and metastatic lesions in the liver and
adrenal glands.
36. That an earlier diagnosis of the disease would have given Patricia Benigni
a better prognosis, including increased survival or cure.
In Count II of the complaint, plaintiff alleged vicarious liability with respect to HMC, contending
that “Dr. Alsawah was an employee, ostensible agent, apparent agent, or actual agent of” HMC.
Plaintiff attached to the complaint an affidavit of merit by Dr. Jeffrey Gordon, a board-
certified medical oncologist and hematologist. He averred that “[a]n earlier diagnosis of the
disease would have given Patricia Benigni a better prognosis, including survival.” Dr. Gordon
further stated:
If the appropriate workup and evaluation would have been followed up on,
it would have evidenced the disease process and would have placed Patricia
Benigni in a much more favorable category for a successful treatment outcome, and
if not cure, then for long-term survival.
Defendants filed an answer, mostly neither admitting nor denying the factual allegations in
plaintiff’s complaint, along with denying any liability. Defendants supported their answer with an
affidavit of meritorious defense by Dr. Joel Appel.
C. DISCOVERY
1. DEPOSITION TESTIMONY OF DR. ALSAWAH
Dr. Alsawah testified that the “cure” rate for stage III colorectal cancer is 60% and that
40% of patients suffer a relapse, which includes metastasis of the cancer, within the first five years.
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The doctor indicated that cancer surveillance to check for possible metastasis involves (1) regular
physical examinations that entail, in part, palpation to check for organ enlargement, (2) annual
abdominal and pelvic CT scans, (3) annual CEA testing,5 and (4) complete blood count (CBC) and
metabolic panel testing. Dr. Alsawah opined that physical examinations are the most important
component of cancer surveillance. With respect to CEA levels, the doctor testified that the normal
range is 0 to 5 ng/mL, that there typically are variations in CEA levels from test to test, and that
the focus is on any upward trends in a patient’s CEA level. Dr. Alsawah described upward trends
above 5 ng/mL as concerning and alarming.
Dr. Alsawah testified that Patricia’s “performance status”6 had declined in 2014, but he
observed that this was likely due to her other physical and mental ailments and not suggestive of
metastasis, especially upon consideration of a negative CT scan and normal CEA test in 2014. Dr.
Alsawah explained that when Patricia’s CEA level jumped to 8.2 ng/mL in January 2015 and then
to 24.2 ng/mL in April 2015, he became concerned and found it necessary to monitor her more
closely through checkups every three months. Dr. Alsawah saw Patricia in July 2015, and while
no CEA test was performed at the time, a CT scan was ordered, and it did not reveal any recurrence
or metastasis of the cancer. As Patricia’s CEA level continued to rise in November 2015 and
through 2016, Dr. Alsawah, although concerned, relied on the CT scans and other tools that
continued to show no return of the cancer. Dr. Alsawah testified that there are “many benign
causes” that can produce a rise in a person’s CEA level and that a CEA test is “very nonspecific
and not sensitive enough.” Dr. Alsawah further noted that “the CEA is a very nonreliable study,”
that CEA testing is just one of several tools used in cancer surveillance, and that physical
examinations and CT scans “are way more important to [him] than a CEA.” The doctor noted that
Patricia’s performance status continued to decline in 2016, but it appeared related to health issues
other than cancer.
With respect to Patricia’s CEA level of 78.5 ng/mL in August 2016, Dr. Alsawah testified
that it remained concerning, but because every other indicator, including a CT scan and physical
examination, did not suggest the presence of cancer, he began scheduling Patricia for visits every
six months. At the time of the CT scan in August 2017, which revealed the presence of cancer in
Patricia’s liver, Dr. Alsawah still could not detect a mass on physical palpation of the liver. Dr.
Alsawah indicated that he did not know whether the metastasis would have been discovered earlier
had a PET scan been performed. He acknowledged in “retrospect” that the spread of the cancer to
Patricia’s liver had caused the upward trend in her CEA level.
2. AFFIDAVIT OF DR. PHILIP A. PHILIP AND SUPPORTING LITERATURE
5
Dr. Alsawah noted that Patricia’s CEA level was checked nine times in 2013 because it is
common to do the testing when a patient comes in for a visit and Patricia came in for nine rounds
of chemotherapy in 2013 following the resection. He noted that chemotherapy does not impact
CEA levels.
6
A patient’s “performance status” is a score that measures the patient’s ability to perform the
activities of daily living.
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Dr. Philip A. Philip, a board-certified medical oncologist, executed an affidavit on behalf
of defendants. Dr. Philip averred that he had reviewed the complaint and understood that plaintiff
alleged a negligent delay in the diagnosis of Patricia’s metastatic disease and claimed that an earlier
diagnosis would have given her a better prognosis, including an increased chance of survival. He
indicated that he was familiar with survival statistics for metastatic colorectal cancer. Dr. Philip
stated that data maintained by the National Cancer Institute (NCI) and the Surveillance,
Epidemiology, and End Results (SEER) Program revealed that the 2015 survival rate for metastatic
colorectal cancer was less than 20%. Additionally, according to Dr. Philip, data maintained by the
American Joint Commission on Cancer (AJCC) showed that the 2015 survival rate for metastatic
colorectal cancer was less than 20%. Attached to Dr. Philip’s affidavit were supporting documents
from the SEER Program and the AJCC.7 Finally, Dr. Philip averred that Patricia’s opportunity to
survive the cancer “was never greater than fifty percent” and that her opportunity to survive was
not diminished by greater than 50% as a result of the alleged failure to detect the metastasized
cancer in 2015.
3. DEPOSITION TESTIMONY OF DR. GORDON
In his deposition, Dr. Gordon testified that he reviewed three articles in medical journals
regarding CEA levels, including an article in the Journal of the National Comprehensive Cancer
Network (JNCCN). Dr. Gordon stated that according to the JNCCN article and the cases examined
therein, a CEA level above 15 ng/mL rarely reflected a false indicator of colorectal cancer. And,
according to Dr. Gordon, if the CEA level was over 35 ng/mL, “it was always associated with a
recurrence of colorectal cancer.”8 The doctor opined that in November 2015 when Patricia’s CEA
level was 38.6 ng/mL, there was a likelihood that her cancer had metastasized to the liver. Dr.
Gordon asserted that with Patricia’s rising CEA level in 2015, Dr. Alsawah breached the standard
of care by relying solely on the CT scans, physical examinations, and other blood work. According
to Dr. Gordon, a PET scan, which provides a “better yield” than a CT scan, should have been
ordered. Referencing an article in The Oncologist, Dr. Gordon explained that with respect to
asymptomatic patients with rising CEA levels who indeed have a recurrence of colorectal cancer,
CT scans do not readily reveal the recurrence and PET scans are “more likely” to show the cancer.
Other avenues that should have been considered or explored by Dr. Alsawah in 2015 included
magnetic resonance imaging (an MRI), a scope, and a biopsy.
7
The documents contain statistics regarding five-year survival rates, which ranged from 14% to
16% for patients with metastasized colorectal cancer, including cancer that had spread to the liver.
8
The authors themselves concluded:
[A] repeated and confirmed serum CEA level greater than 15 ng/mL is
strongly predictive of disease recurrence, and a confirmed serum CEA level greater
than 35 ng/mL seems to be virtually diagnostic of the presence of cancer. [12
JNCCN 6, False-Positive Elevations of Carcinoembryonic Antigen in Patients with
a History of Resected Colorectal Cancer, p 913 (2014).]
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Defense counsel asked Dr. Gordon about the statistical likelihood of survival under the
circumstances facing Patricia in 2017 when the metastasis was discovered. The doctor answered:
Again, it depends upon exactly what is the presentation, but someone who
is presenting with a large mass in the liver with multiple other masses in the liver,
what looks to have both adrenal glands involved, and a performance status that is
not good, the survival would have been considered less than a year.
When queried whether he meant that almost 100% of patients in such circumstances would not
survive, Dr. Gordon responded:
If they have a big large mass in the liver, multiple other masses in the liver,
and disease in the adrenal gland and their medical condition is poor, they tend not
to [survive] because they don’t tend to get treatment or tolerate treatment.
Dr. Gordon also agreed that in regard to patients with stage IV (metastasized) colorectal cancer in
2017, less than half of them would be alive five years later.
Dr. Gordon indicated that with respect to a patient diagnosed in 2012 with stage III
colorectal cancer, such as Patricia, the survival rate was 75% to 85%. The doctor noted that it is
common for colorectal cancer to metastasize to the liver. He stated that “when these cancers get
to the liver, the disease course can pick up and become rapid.” Dr. Gordon did not think that
Patricia had metastatic disease all along. He did believe, however, that it was likely that there
remained microscopic disease in the area of the rectum following surgery and adjuvant
chemotherapy. When pressed by counsel to provide the timeframe when the cancer first arrived
in the liver, Dr. Gordon answered “that it is more likely than otherwise that it got to the liver around
th[e] time that [the] CEA of 38 was obtained.” This would have been in November 2015. He
could not state with 100% certainty that metastasis of the liver would have been found at that time,
but more than likely the cancer was present by November 2015.
Dr. Gordon was asked to identify the treatment options available in November 2015 had a
PET scan been performed and the cancer been detected in Patricia’s liver. The doctor testified that
any options were dependent on the specific location and size of the cancer and the extent that
Patricia could tolerate treatment. When repeatedly asked about survival statistics or the five-year
survival rate relative to a person diagnosed in 2015 with stage IV colorectal cancer, with metastasis
to the liver, Dr. Gordon responded that the answer depended on a number of variables, the overall
situation, and new treatment technologies and advancements that became available right after 2015
that could have been utilized; he could not provide a specific answer to the question.
When questioned whether it was accurate to state that Patricia would not have survived if
she had been diagnosed with stage IV colorectal cancer in November 2015, Dr. Gordon responded:
If she was stage 4, it would have been more likely at some point during her
life she would have died even if they had attempted curative-intent surgery. But
because the curative-intent surgery doesn’t cure 100 percent of people,
unfortunately, so statistically there would still be that risk that other areas might
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have popped up. Nevertheless, at some point it could have been that she could have
passed away later from cancer.
Dr. Gordon was asked about statistics that showed that the 2015 survival rate for metastatic
colorectal cancer was less than 20%. The doctor viewed that percentage as “a general blanket
statistic, that’s not necessarily looking at certain ways that people present with stage 4[.]” Dr.
Gordon reiterated that you cannot simply accept the statistical percentage emphasized by
defendants because “you have to look at the type of stage 4 you’re dealing with” and because
survival assessment “depends upon if someone has presented with disease in the liver that you feel
you can attempt curative-intent surgery.” Prefaced by defense counsel’s assumption that Dr.
Gordon was correct that the cancer had metastasized to Patricia’s liver by November 2015 given
her CEA level and that it should have been diagnosed at that time, counsel asked the doctor what
Patricia’s chance of survival was at that point. Dr. Gordon answered:
I can’t give a specific number to it. All I can say is that there was a missed
opportunity to have looked into seeing what was going on with the cancer, and if it
was in the liver, would there have been potentially an opportunity to do something
with curative intent or look into other types of treatment to extend survival
otherwise.
4. AFFIDAVIT OF DR. GORDON
Dr. Gordon, along with executing the affidavit of merit and being deposed, provided a
separate affidavit for purposes of plaintiff’s response to defendants’ motion for summary
disposition. Dr. Gordon reiterated the points that he had made in his affidavit of merit. He averred
that “[a]n earlier diagnosis would have given [Patricia] a better prognosis, including survival.” Dr.
Gordon further averred that it was his “opinion that appropriate workup and evaluation would have
evidenced the disease process and would have placed [Patricia] in a much more favorable category
for a successful treatment outcome, for long-term survival, if not cure.” He indicated that he was
familiar with data maintained by the NCI and the SEER Program, as well as data maintained by
the AJCC. Dr. Gordon emphasized that further investigation by Dr. Alsawah was imperative to
identify the cause of Patricia’s rising CEA level. According to Dr. Gordon, the medical literature,
which was attached to his affidavit and referenced in his deposition, reflected that the “detection
of recurrences at an earlier stage is associated with a higher rate of curative treatment.” Dr. Gordon
additionally averred:
7. It is my opinion that proper investigation of the cause of the rising CEA
levels would have evidenced the metastatic disease as early as November of 2015.
It is further my opinion that if the liver metastasis was diagnosed in November
2015, rather than in 2017, it is more likely [Patricia] would have had an option for
curative-intent surgery, as well as additional treatment modalities. These modalities
would have provided an opportunity to achieve a better result, including survival.
My opinion that these modalities, including curative-intent surgery, would have
provided such an opportunity is based on published medical literature.
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8. This literature indicates, in surgical case series, five-year overall survival
rates following surgical resection of metastatic colorectal cancer to the liver range
from 24 to 58 percent.
I note that paragraph or averment 8 of the affidavit setting forth actual percentages comes
from an article on UpToDate, an electronic clinical resource tool, entitled “Management of
potentially resectable colorectal cancer liver metastases.” In relevant part, on page 3 of the article,
the authors wrote:
Resection offers the greatest likelihood of cure for patients with liver-
isolated CRC [colorectal cancer]. In surgical case series, five-year survival rates
after resection range from 24 to 58 percent, averaging 40 percent . . ., and surgical
mortality rates are generally [under] 5 percent. Subgroups with advanced age,
comorbid disease, and synchronous hepatic and colon resection may have higher
procedure-related mortality and worse long-term outcomes. . . . .
Long-term, a proportion of patients undergoing hepatic metastasectomy
may have long-term relapse-free survival and may be cured. . . . .
Because of its clear survival impact, surgical resection is the treatment of
choice when feasible. The percentage of patients with isolated hepatic metastases
who are amenable to potentially curative resection has been a bit of a moving target,
since the boundaries of “resectable” have expanded in recent years. It is safe to say
that a majority of patients with metastatic disease are not potentially curative
surgical candidates because of tumor size, location, multifocality, or inadequate
hepatic reserve. Ten to 20 percent of those patients with initially unresectable liver
metastases may be converted to resectable with neoadjuvant chemotherapy. The
appropriate treatment for the balance of individuals is palliative chemotherapy.
D. MOTION FOR SUMMARY DISPOSITION AND THE TRIAL COURT’S RULING
In February 2021, nearly two years after the complaint was filed and following discovery,
defendants moved for summary disposition under MCR 2.116(C)(10). Focusing on MCL
600.2912a(2), defendants argued that there was no scientifically-reliable information
demonstrating that Patricia’s opportunity to survive was ever greater than 50% or that her
opportunity to survive was diminished by 50%. Defendants contended that the widely-accepted
literature in the cancer-treatment community unequivocally established that Patricia’s opportunity
to survive the metastatic colon cancer was not reduced by greater than 50% as a result of the
alleged delay in diagnosing the metastasis. On the possibility that the trial court would require
more information on the matter, defendants alternatively requested a hearing under Daubert v
Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).
In response, plaintiff maintained that defendants ignored the spirit of the lost-opportunity
doctrine under MCL 600.2912a(2), which was enacted to allow for the recovery of the loss of an
opportunity to survive and not merely the initial opportunity to survive. Plaintiff argued that he
had demonstrated that if defendants had properly evaluated the cause of Patricia’s “rising CEA
levels and diagnosed her metastatic cancer earlier, curative treatment options, including surgical
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resection, would have increased her opportunity to survive or to achieve a better result by more
than the threshold required by MCL 600.2912a(2).”
On March 15, 2021, the trial court held a hearing on defendants’ motion for summary
disposition and took the matter under advisement. On April 12, 2021, the trial court issued a
written opinion and order granting the motion. The court noted that the parties agreed that the
analysis was controlled by this Court’s decision in Fulton, 253 Mich App 70. Fulton held, as
paraphrased or characterized by the trial court, “that the plaintiff only had to show that his
opportunity to survive had been reduced by a number greater than 50% due to [the] defendant’s
negligence regardless of what [the] plaintiff’s initial opportunity to survive was.” Accordingly,
the trial court framed the issue in this case as being “whether an alleged delayed diagnosis of
[Patricia’s] metastatic cancer decreased her opportunity to survive by more than 50%.” After
acknowledging the parties’ arguments and examining the documentary evidence, the trial court
concluded that there was no evidence that Patricia’s opportunity to survive was reduced by 50%
as a result of Dr. Alsawah’s alleged malpractice. The trial court found that plaintiff’s argument
that Patricia would have had a better opportunity for surgery in 2015 as compared to 2017 was
entirely speculative considering that the state of her cancer in 2015 was effectively unknown. The
court determined that a jury would have no ability to assess whether Patricia suffered a lost
opportunity to survive that was greater than 50%. Plaintiff now appeals to this Court.
II. ANALYSIS
A. APPELLATE ARGUMENTS
On appeal, plaintiff argues that the trial court erred by concluding that there was
insufficient evidence to create a genuine issue of material fact regarding whether Patricia had
suffered a lost opportunity to survive that was greater than 50%. Plaintiff contends that there was
evidence—Dr. Gordon’s deposition testimony and affidavit—showing that Patricia was a
candidate for a liver resection in 2015 but not in 2017 and that a jury should assess whether the
greater-than-50% threshold was satisfied. Plaintiff further maintains that although the parties
appear to agree on the method of calculating a lost opportunity to survive under MCL 600.2912a(2)
through application of the Fulton panel’s construction of the statute, this Court should reexamine
Fulton. Plaintiff also asserts that Patricia’s initial opportunity to survive in 2015 did not have to
exceed 50%. Finally, plaintiff argues that MCL 600.2912a(2) does not require a 50-plus
percentage-point diminishment in the opportunity to survive; rather, the reduction must simply be
by 50-plus percent. According to plaintiff, 50 percentage points is not the same as 50%.
Defendants contend that plaintiff makes no attempt to show that his evidence actually
satisfied the requirement in MCL 600.2912a(2) that the lost opportunity to survive was greater
than 50%. Defendants claim that the accepted medical literature demonstrates that the survival
rate for stage IV colorectal cancer with metastasis to the liver was less than 20% and that there
was no evidence that the survival rate was greater in 2015 than in 2017. Defendants assert that
Dr. Philip’s affidavit was unrefuted. Defendants further maintain that Dr. Gordon essentially
refused to provide 2015 survival statistics of persons with colorectal cancer that had spread to the
liver. Defendants also argue that to the extent that Dr. Gordon’s affidavit contradicted his
deposition testimony, it should be disregarded. And even if the affidavit is considered, it did not
establish that Patricia’s lost opportunity to survive was greater than 50%. Defendants additionally
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argue that the averments in the affidavit were unreliable. Finally, defendants contend that
plaintiff’s argument that Patricia was a candidate for resection in 2015 simply does not
demonstrate a lost opportunity to survive.
B. STANDARD OF REVIEW
This Court reviews de novo a trial court’s ruling on a motion for summary disposition. El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). We also review
de novo questions concerning the interpretation and application of a statute. Estes v Titus, 481
Mich 573, 578-579; 751 NW2d 493 (2008).
C. SUMMARY DISPOSITION PRINCIPLES UNDER MCR 2.116(C)(10)
MCR 2.116(C)(10) provides that summary disposition is appropriate when, “[e]xcept as to
the amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” A motion brought pursuant to MCR
2.116(C)(10) tests the factual support for a party’s action. Pioneer State Mut Ins Co v Dells, 301
Mich App 368, 377; 836 NW2d 257 (2013). “Affidavits, depositions, admissions, or other
documentary evidence in support of the grounds asserted in the motion are required . . . when
judgment is sought based on subrule (C)(10),” MCR 2.116(G)(3)(b), and such evidence, along
with the pleadings, must be considered by the court when ruling on the (C)(10) motion, MCR
2.116(G)(5). “When a motion under subrule (C)(10) is made and supported . . ., an adverse party
may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or
as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for
trial.” MCR 2.116(G)(4).
“A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the
pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to
the nonmovant, show that there is no genuine issue with respect to any material fact.” Pioneer
State, 301 Mich App at 377. “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The
trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes,
and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition
under MCR 2.116(C)(10). Pioneer State, 301 Mich App at 377. “Like the trial court’s inquiry,
when an appellate court reviews a motion for summary disposition, it makes all legitimate
inferences in favor of the nonmoving party.” Skinner v Square D Co, 445 Mich 153, 162; 516
NW2d 475 (1994). “[S]peculation is insufficient to create an issue of fact.” MEEMIC Ins Co v
DTE Energy Co, 292 Mich App 278, 282; 807 NW2d 407 (2011). A court may only consider
substantively admissible evidence actually proffered by the parties when ruling on the motion.
Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999); see also MCR 2.116(G)(6).
D. CASELAW AND MCL 600.2912a(2)
Before the Legislature amended MCL 600.2912a and added the language at issue through
enactment of 1993 PA 78, our Supreme Court in Falcon v Mem Hosp, 436 Mich 443, 461-462;
462 NW2d 44 (1990), held that a lost opportunity to survive is compensable in a medical
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malpractice suit even when the lost opportunity is less than 50%. The Supreme Court observed
that “[a] number of courts have recognized, as we would, loss of an opportunity for a more
favorable result, as distinguished from the unfavorable result, as compensable in medical
malpractice actions” and that “[u]nder this approach, damages are recoverable for the loss of
opportunity although the opportunity lost was less than even[.]” Id. at 461. In Falcon, there was
evidence that the deceased patient would have had a 37.5% opportunity of survival had the
physician followed proper medical procedures. Id. at 447. The Court held that the loss of a
“substantial opportunity” to avoid physical harm is actionable. Id. at 469. The Falcon Court then
ruled that it was “persuaded that loss of a 37.5 percent opportunity of living constitutes a loss of a
substantial opportunity of avoiding physical harm” and that it “need not now decide what lesser
percentage would constitute a substantial loss of opportunity.” Id. at 470. The Supreme Court
therefore held that the defendants were not entitled to summary disposition. Id. at 472.
Three years later, subsection (2) of MCL 600.2912a was added by 1993 PA 78, and
subsection (2) of the statute provides as follows:
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%.[9]
In Wickens v Oakwood Healthcare Sys, 242 Mich App 385, 390; 619 NW2d 7 (2000),
rev’d in part and vacated in part by 465 Mich 53 (2001), this Court addressed the question whether
MCL 600.2912a(2) “allows for recovery when the initial opportunity to survive before the alleged
malpractice is greater than fifty percent, as argued by plaintiffs, or, rather, if the statute only allows
for recovery when the difference between the opportunity to survive before and after the alleged
malpractice is greater than fifty percent, as defendants contend.” The Wickens panel agreed with
the plaintiffs’ construction of the statute. Id. Accordingly, this Court held that MCL 600.2912a(2)
“requires plaintiffs in medical malpractice actions seeking recovery for loss of an opportunity to
survive or an opportunity to achieve a better result to show that, had the defendant not been
negligent, there was a greater than fifty percent chance of survival or a better result.” Id. at 392.
Wickens involved an alleged failure to timely diagnose cancer, but there was no death. Id.
at 386. Moreover, on direct review by our Supreme Court, the Court held:
We hold that a living person may not recover for loss of an opportunity to
survive, and that plaintiff’s claim is therefore barred to the extent that it is based on
such loss of opportunity. We further hold that the trial court nevertheless erred in
9
For ease of reference in this opinion, when I speak of or refer to subsection (2) of MCL
600.2912a, it will pertain solely to the second sentence in subsection (2) unless otherwise
indicated.
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dismissing plaintiff’s case in its entirety, because she has made additional claims
that are independent of her claim for loss of an opportunity to survive. Accordingly,
we reverse in part and vacate in part the opinion of the Court of Appeals and remand
this matter to the trial court for further proceedings consistent with this opinion.
[Wickens v Oakwood Healthcare Sys, 465 Mich 53, 54-55; 631 NW2d 686(2001).10]
In Dykes v William Beaumont Hosp, 246 Mich App 471, 477; 633 NW2d 440 (2001), this
Court, being bound, applied the construction of MCL 600.2912a(2) that the Wickens panel had
enunciated; the Supreme Court had not yet reversed and vacated this Court’s ruling in Wickens.
In 2002, this Court, not feeling constrained or bound by the Court of Appeals’ decision in
Wickens, issued its opinion in Fulton, 253 Mich App 70.11 The Fulton panel rejected Wickens’s
interpretation of MCL 600.2912a(2) and instead 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.”
Fulton, 253 Mich App at 83. In Fulton, the patient died of cervical cancer, and a medical expert
opined that observations by the patient’s OB-GYN should have led her to suspect that the patient
may have been in the early stages of cervical cancer. Id. at 72-73. The complaint alleged a failure
to properly diagnose and treat the decedent, resulting in a loss of the opportunity to survive. Id. at
73. Applying its construction of MCL 600.2912a(2) to the facts presented, the Court in Fulton
ruled:
In this case, plaintiff’s expert stated that Fulton’s initial opportunity to
survive was eighty-five percent and that her opportunity to survive after the alleged
malpractice was sixty to sixty-five percent. Therefore, because her loss of
opportunity due to defendants’ alleged malpractice was not greater than fifty
percent, we hold that the trial court erred in denying defendants’ motion for
summary disposition. [Id. at 84.]
The Fulton panel found that the decedent “suffered a loss of a twenty to twenty-five percent chance
of survival.” Id. at 82. Thus, this Court made a calculation of the lost opportunity to survive on
10
The Wickens Court elaborated:
[A] loss of an opportunity to survive claim only encompasses injuries
already suffered, which clearly limits recovery to situations where death has already
occurred. Because the evidence concerning the reduction in her chances of survival
over a ten-year period is relevant only to her potential, future death, the living
plaintiff in this case may not recover for this “loss of opportunity.” [Wickens, 465
Mich at 61.]
11
In Fulton, 253 Mich App at 79, this Court stated that it was not mandated to follow Wickens
“under principles of stare decisis because a majority of the Supreme Court vacated that portion of
this Court’s opinion regarding the interpretation of the second sentence of MCL 600.2912a(2) and
did not express approval or disapproval of this Court’s reasoning on the issue.”
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the basis of simple subtraction—subtracting the post-malpractice chance of survival from the pre-
malpractice chance of survival.
Fulton requires a percentage-point measurement of the reduction or diminishment in the
opportunity to survive, thereby necessitating an assessment of the opportunity to survive absent
the alleged malpractice and an assessment of the opportunity to survive in light of the purported
malpractice. Stated another way, a court must evaluate a patient’s opportunity to survive had there
been non-negligent or proper treatment and then also evaluate the patient’s opportunity to survive
after having been subjected to negligent care or treatment. Whereas the rejected interpretation of
MCL 600.2912a(2) by the Wickens panel entailed simply determining, using a percentage, the
initial opportunity to survive had there been no malpractice or had there been proper treatment.
In Ensink v Mecosta Co Gen Hosp, 262 Mich App 518, 527-539; 687 NW2d 143 (2004),
this Court again addressed the proper construction of MCL 600.2912a(2), concluding that it was
bound by the interpretation in Fulton, while at the same time requesting the convening of a special
conflict panel under MCR 7.215(J)(2) because it agreed with the construction of the statute set
forth by this Court in Wickens. In Ensink, the plaintiff patient suffered a stroke and claimed that
it resulted in paralysis because the defendants failed to administer tissue plasminogen activator (t-
PA) within the necessary three-hour window. Id. at 521. Upon polling of the judges of this Court,
MCR 7.215(J)(3), they were evenly divided on the issue regarding the proper interpretation of
MCL 600.2912a(2); consequently, a special panel was not convened, and Fulton remained
controlling law. Ensink v Mecosta Co Gen Hosp, 264 Mich App 801 (2004).
In Klein v Kik, 264 Mich App 682, 685-686; 692 NW2d 854 (2005), this Court applied
Fulton’s construction of MCL 600.2912a(2) because it was bound by the interpretation. In Klein,
the Court addressed an alleged misdiagnosis of and delay in discovering a rare form of lung cancer,
which ultimately resulted in a patient’s death. Id. at 683-684. The Court ruled that the action
failed as a matter of law because there was a 75% chance of survival under the best of
circumstances and a 30% chance of survival in light of the alleged malpractice, resulting in a
percentage-point-differential of only 45%. Id. at 687-688.
In 2008, our Supreme Court in Stone v Williamson, 482 Mich 144, 147-148; 753 NW2d
106 (2008), addressed a case in which the “[p]laintiff suffered the rupture of an abdominal aortic
aneurysm that had gone undetected despite physical examinations and testing by a number of
physicians[,]” resulting in a “medical-malpractice suit against [a] radiologist and two vicariously
liable entities on the theory that a negligent diagnosis resulted in the rupture and all resulting
harm.”12 The case produced a plethora of views and opinions by the justices of the Michigan
Supreme Court regarding MCL 600.2912a(2) and Fulton, prompting Chief Justice TAYLOR, in the
lead opinion, to summarize the positions:
In an attempt to clarify for the reader the majority and minority positions on
each issue, I provide the following summary:
12
The plaintiff survived the ruptured aneurysm. Stone, 482 Mich at 148.
-14-
All seven justices would affirm the result of the Court of Appeals decision
and the judgment for plaintiff. Six of the justices believe that this is not a lost-
opportunity case; Justice Markman would hold that it is such a case. All seven
justices believe that Fulton’s analysis is incorrect or should be found to no longer
be good law, though their reasons for doing so vary. Justices Corrigan and Young
and I would find that Fulton is no longer good law because we would hold that the
statute is unenforceable as written.[13] Justice Markman would hold that Fulton is
inconsistent with the statutory language. Justices Weaver, Cavanagh, and Kelly
would hold that Fulton is incorrect because it erroneously added words to the statute
when analyzing the phrase “the opportunity.” Of the four justices holding that the
statute is not unenforceable as written (Justices Weaver, Cavanagh, Kelly, and
Markman), only Justice Markman would define the term “opportunity” in
accordance with the Waddell article,[14] while the other three (Justices Weaver,
Cavanagh, and Kelly) would define it in accordance with Falcon, but with a higher
13
With respect to the conclusion that the second sentence in MCL 600.2912a(2) was
unenforceable, the Chief Justice wrote:
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.
Another possible alternative reading is that the second sentence of subsection 2 was
intended not to create a new type of claim, but to limit courts from expanding the
common law so far as to allow cases like Falcon. 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. Moreover, it remains
that the second sentence impossibly conflicts with the requirement of a proximate
cause of the injury in both the first sentence of subsection 2 and in subsection 1.
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. [Stone, 482 Mich at 160-161.]
.
14
Justice MARKMAN observed:
Fulton did not offer any explanation as to why it merely subtracted the
postmalpractice chance from the premalpractice chance to determine the “lost
opportunity.” This might have been the correct method of determining the “lost
opportunity” if MCL 600.2912a(2) required that such a loss be “greater than 50
percentage points.” However, MCL 600.2912a(2) requires that the “lost
opportunity” be “greater than 50%.” There is a significant distinction between 50
percentage points and 50 percent. As Dr. Roy Waddell, a board-certified orthopedic
surgeon in Grand Rapids, has explained: “A decrease in survival rate from 50
percent to 10 percent is a 40–percentage–point decrease, but it is an 80 percent
decrease.” [Stone, 482 Mich at 196 (citation omitted).]
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threshold than Falcon required. The same four justices (Justices Weaver,
Cavanagh, Kelly, and Markman) would hold that loss of the opportunity is, by
itself, a compensable injury, although the opportunity must be “lost”—that is, the
bad result must occur—in order for a claim to accrue.
Given this montage of issues and positions created by the language of this
statute, it would be helpful for the Legislature to reexamine its goal and the policies
it wishes to promote and strive to better articulate its intent in that regard. [Stone,
482 Mich at 164.]
Subsequently, in Lanigan v Huron Valley Hosp, Inc, 282 Mich App 558, 562; 766 NW2d
896 (2009), the plaintiff patient alleged that the “defendants failed to timely diagnose [a] heart
attack, timely order thrombolytic therapy, and timely transfer [the patient] to a facility capable of
emergency cardiac intervention[.]” The plaintiff alleged that the defendants’ conduct breached the
medical standard of care, causing the plaintiff to “lose an opportunity for a better result, i.e.,
receiving a cardiac bypass and a longer life expectancy as opposed to a heart transplant and a
shorter life expectancy[.]” Id. Weeding through Stone in an effort to make sense of its impact,
the Lanigan panel ruled:
Because the majority of the justices determined that the plaintiff’s claim in
Stone was not a lost-opportunity claim, but an ordinary medical malpractice claim,
the issue of the correctness of Fulton was not properly before the Court.
Accordingly, because the correctness of Fulton was not properly before the Court
and because Stone is a plurality opinion, Stone is not binding on this Court and it
does not establish a point of law. Therefore, the prevailing analysis for lost-
opportunity cases remains that set forth in Fulton, and regardless of whether we
think Fulton was properly decided we are bound to follow it. [Lanigan, 282 Mich
App at 567 (citations omitted).]
One year later, in Edry v Adelman, 486 Mich 634, 636; 786 NW2d 567 (2010), the plaintiff
patient alleged that her physician failed to test a lump on the plaintiff’s arm for cancer and that a
subsequent biopsy revealed an invasive cancer that had spread to 16 lymph nodes, resulting in a
radical mastectomy, multiple rounds of chemotherapy, and radiation therapy. The Michigan
Supreme Court, in a memorandum opinion, held:
First, plaintiff cannot pursue a claim based solely on her decreased odds of
survival because that alone does not create a basis for relief under MCL
600.2912a(2). Defendant’s expert did testify that the delay decreased plaintiff’s
odds of surviving five years, but he did not testify that any present injury arose from
that reduction in her survival chance. This Court has held that a reduced chance of
survival alone is not a cognizable injury under MCL 600.2912a(2). See Wickens . .
. . Defendant’s expert merely testified that the delay reduced plaintiff’s odds of
surviving five years, which is not a present injury as required by MCL
600.2912a(2). Because defendant’s expert did not testify as to any other harm that
could be considered a present injury, plaintiff cannot support her claim with
defendant’s expert’s testimony. [Edry, 486 Mich at 642-643.]
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In O’Neal, 487 Mich at 490-491, the plaintiff suffered a disabling stroke that was allegedly
caused by the defendants’ failure to perform a timely blood transfusion. In the lead opinion, Justice
HATHAWAY stated:
We hold that the Court of Appeals erred by relying on Fulton and
determining that this is a loss-of-opportunity case controlled by both the first and
second sentences of MCL 600.2912a(2), and instead hold that this case presents a
claim for traditional medical malpractice controlled only by the first sentence of §
2912a(2). Further, we conclude that plaintiff established a question of fact on the
issue of proximate causation because plaintiff’s experts opined that defendants’
negligence more probably than not was the proximate cause of plaintiff’s injuries.
Finally, we hold that Fulton did not correctly set forth the burden of proof necessary
to establish proximate causation for traditional medical malpractice cases as set
forth in § 2912a(2). Therefore, we overrule Fulton to the extent that it has led courts
to improperly designate what should be traditional medical malpractice claims as
loss-of-opportunity claims and has improperly transformed the burden of proof in
a traditional malpractice case from a proximate cause to the proximate cause.
[O’Neal, 487 Mich at 489-490.]
Justice WEAVER fully concurred with Justice HATHAWAY. Id. at 507. Justice CAVANAGH,
joined by Chief Justice KELLY, wrote:
I concur in the result. I agree with the majority that the Court of Appeals’
judgment in this case should be reversed because the Court erred by treating this
case as a loss-of-opportunity case instead of a traditional medical malpractice case
and, as a result, erred by requiring plaintiff to meet the requirements in the second
sentence of MCL 600.2912a(2). I further agree that Fulton . . . should be overruled
to the extent that courts have relied on it to improperly transform what could be
traditional medical malpractice claims into loss-of-opportunity claims. I write
separately to express my views on the issues presented. [O’Neal, 487 Mich at 507-
508.]
In the lead opinion, Justice HATHAWAY addressed the particular formula employed by this
Court in Fulton:
Fulton opined that because the decedent went from an 85 percent pre-
malpractice chance of survival to a 60-65 percent post-malpractice chance of
survival, she suffered a loss of a twenty to twenty-five percent chance of survival.
Fulton determined that a percentage point differential subtraction analysis was
required by the statute. As demonstrated by the Fulton analysis, the conclusion is
reached by a simplistic subtraction formula. Fulton subtracted the statistical
likelihood of a better outcome without treatment from the statistical likelihood of a
better outcome with treatment to determine if the resulting number is greater than
50.
Fulton’s simplistic subtraction formula is not an accurate way to determine
whether a defendant’s malpractice is a proximate cause of the injury. Fulton’s
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analysis was erroneous because it misconstrued proximate causation as it applies
to a traditional malpractice case. [Id. at 499 (quotation marks omitted; emphasis
added).]
She later reiterated that “[g]iven that Fulton used an incorrect mathematical formula and is
being used to transform the burden of proof in traditional malpractice cases,” it has no continuing
validity “in the context of traditional medical malpractice cases.” Id. at 505. I construe Justice
HATHAWAY’s ruling as simply a determination that Fulton’s percentage-point-differential
computation is inapplicable in a standard medical malpractice action; the reasoning or analysis did
not suggest that Fulton’s percentage-point-differential formula is inapplicable in a true lost-
opportunity action. Indeed, her lead opinion “emphasize[d] that we hold that the second sentence
of § 2912a(2) applies only to medical malpractice cases that plead loss of opportunity and not to
those that plead traditional medical malpractice; we do not address the scope, extent, or nature of
loss-of-opportunity claims as that issue is not before us.” Id. at 506. Justice HATHAWAY noted
that “[s]ignificant questions surround such claims.” Id.
In Justice CAVANAGH’s concurrence in O’Neal, he indicated that with respect to causation
in a standard medical malpractice case, he “reject[ed] the view that a plaintiff must show that the
defendant’s negligence increased the plaintiff’s risk by more than 50 percentage points, e.g., from
25 percent to 76 percent, or from 10 percent to 61 percent.” Id. at 511. Justice CAVANAGH added,
“To the extent that I endorsed the percentage point approach by way of an example in my opinion
in Stone, I repudiate that position.” Id. at 511 n 7. As with Justice HATHAWAY’s position, I do not
view Justice CAVANAGH’s stance as rejecting the analysis in Fulton relative to a true lost-
opportunity suit.
Prompted by the statements referenced above in the lead and concurring opinions in
O’Neal, Justice MARKMAN, concurring in result only, concluded that the case was a lost-
opportunity action, and he then stated:
I observed in Stone, the first problem with Fulton is that it requires a loss of
more than 50 percentage points, while MCL 600.2912a(2) requires a loss of more
than 50 percent.
* * *
I am pleased that Justice CAVANAGH and the other justices who signed
his opinion in Stone (Chief Justice KELLY and Justice WEAVER) now apparently
recognize this analytical error, and that they now “repudiate” that position. Thus, a
majority of the justices of this Court now agree that MCL 600.2912a(2) requires us
to determine whether the lost opportunity is “greater than 50%,” not whether the
lost opportunity is greater than 50 percentage points. [O’Neal, 487 Mich at 518-
519.]
Despite Justice MARKMAN’s comments, I do not believe that a majority of justices in
O’Neal reached the issue whether the percentage-point-differential formula employed by the
Fulton panel applies in a case in which a plaintiff presents a genuine loss-of-opportunity claim.
Again, a majority of justices appeared to merely conclude that the Fulton analysis cannot be
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applied in a traditional medical malpractice action because it conflicts with the proper manner to
establish causation. Stone and O’Neal do not present pictures of clarity. The proper construction
of the lost-opportunity provision in MCL 600.2912a(2) begs clear resolution by our Supreme
Court, and I implore the Court to take up the matter when the chance arises.
E. DISCUSSION AND MY PROFFERED RESOLUTION
1. LOSS-OF-OPPORTUNITY ACTION VERSUS TRADITIONAL MEDICAL
MALPRACTICE ACTION
The caselaw requires a determination whether a claim constitutes a classic medical
malpractice claim, solely implicating the first sentence of MCL 600.2912a(2), or whether it
amounts to a loss-of-opportunity claim, implicating the second sentence of subsection (2). As
reflected by the cases reviewed above, this is not an easy question to resolve. The lost-opportunity
doctrine is potentially available in circumstances where a plaintiff cannot prove that a defendant’s
actions were the cause of alleged physical injuries but can establish that the defendant’s actions
deprived him or her of a chance to avoid those injuries. Stone, 482 Mich at 152 (opinion by
TAYLOR, C.J.); Ykimoff v W A Foote Mem Hosp, 285 Mich App 80, 99-100; 776 NW2d 114 (2009).
In Taylor v Kent Radiology, 286 Mich App 490, 498; 780 NW2d 900 (2009), the plaintiffs
sued a radiologist for failing to diagnose a talus fracture when interpreting the plaintiff patient’s
x-rays, which failure allegedly resulted in an otherwise unnecessary surgery, avascular necrosis,
and arthritis. The Taylor panel rejected the defendants’ argument that the plaintiffs’ action
implicated the second sentence in MCL 600.2912a(2) and the lost-opportunity doctrine,
concluding that upon examination of the plaintiffs’ complaint, trial brief, and statements at trial, it
was clear that plaintiffs framed their action as a traditional medical malpractice suit. Id. at 509.
This Court observed that whether the second sentence of MCL 600.2912a(2) applies in a given
case is dependent on the nature of the claims brought by the plaintiff. Id. at 506.
In Velez v Tuma, 283 Mich App 396, 397; 770 NW2d 89 (2009), rev’d in part on other
grounds by 492 Mich 1 (2012), the lawsuit arose from the “defendant’s alleged failure to timely
and properly diagnose and treat the acute vascular insufficiency condition that plaintiff presented
with on February 1, 2000, which resulted her left leg being amputated below the knee on February
13, 2000.” The defendant argued, in part, that he was entitled to a judgment notwithstanding the
verdict because the plaintiff had failed to establish proximate cause under the lost-opportunity
language in MCL 600.2912a(2). Id. at 398. This Court rejected the argument, ruling:
The claimed injury here is a physical injury—the loss of plaintiff’s leg
below the knee. This was not a case in which plaintiff was claiming a loss of
opportunity of any kind; she claimed that defendant’s negligence more probably
than not directly caused her to lose her leg below the knee. In other words, this is a
traditional case of malpractice. [Id. at 403.]
Contrary to the majority’s holding, I first conclude that plaintiff did in fact pursue a genuine
lost-opportunity action under MCL 600.2912a(2). A review of plaintiff’s complaint clearly shows
that this suit was pled as a loss-of-opportunity case. Plaintiff did not allege that Dr. Alsawah’s
negligence caused Patricia’s death, nor do I believe that plaintiff could prove that Patricia’s death
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was more probably than not proximately caused by Dr. Alsawah’s negligence. Rather, as reflected
in the allegations contained in the complaint, plaintiff contended that Dr. Alsawah’s breach of the
standard of care caused a “delay in the diagnosis of Patricia Benigni’s metastatic disease,” that the
delay resulted in the advancement of the disease in the liver and adrenal glands, and “[t]hat an
earlier diagnosis of the disease would have given Patricia . . . a better prognosis, including
increased survival or cure.” (Emphasis added.) The language and gravamen of the complaint was
thus focused on an alleged compensable injury that was in the form of a lost opportunity to survive,
not the death itself.
Furthermore, in response to defendants’ motion for summary disposition, plaintiff, in his
response brief and at oral argument, specifically indicated that his lawsuit was based on Patricia’s
lost opportunity to survive and that the parties were in agreement regarding the applicability of the
lost-opportunity provision found in MCL 600.2912a(2). And the trial court analyzed the case as a
loss-of-opportunity action because that is how it was presented to the court. Additionally, plaintiff
does not argue on appeal that the case should be treated as a traditional medical malpractice action.
Indeed, at oral argument in this Court, plaintiff’s counsel, on questioning by the panel, adamantly
insisted that plaintiff’s theory of recovery is based on a lost opportunity to survive pursuant to
MCL 600.2912a(2). Accordingly, even if the majority were correct that this case constituted a
conventional medical malpractice suit, defendants would be entitled to summary dismissal of the
action because plaintiff effectively waived any claim or argument that he was pursuing a traditional
medical malpractice lawsuit. See Progress Mich v Attorney General, 506 Mich 74, 93; 954 NW2d
475 (2020) (waiver involves the intentional relinquishment of a known right).
The majority is correct that Fulton has similarities to the instant action: they are both
medical malpractice suits with core allegations of a failure to timely diagnose a medical condition.
But at the same time, Wickens, 465 Mich 53, Klein, 264 Mich App 682, and Lanigan, 282 Mich
App 558, were treated as loss-of-opportunity suits, even though the core allegations also concerned
the failure to timely diagnosis a medical condition. This is exactly why our Supreme Court needs
to provide some clarity regarding what exactly constitutes a lost-opportunity lawsuit under MCL
600.2912a(2).
2. LOSS OF AN OPPORTUNITY TO SURVIVE THAT IS GREATER THAN 50 PERCENT
I initially find it necessary to elaborate on the parties’ and the trial court’s treatment of
Fulton. With respect to defendants’ motion for summary disposition, they argued that plaintiff’s
action failed as a matter of law under Fulton and application of the percentage-point-differential
formula. Defendants maintained that Fulton remained good law in the context of a loss-of-
opportunity action even after Stone and O’Neal. Defendants’ position on appeal is consistent with
their argument below.
In response to the motion for summary disposition, plaintiff agreed that Fulton was
controlling in comparison to or when judged against this Court’s decision in Wickens. Stated
otherwise, plaintiff agreed with the analysis in Fulton that the chance of survival pre-malpractice
and the chance of survival post-malpractice had to both be evaluated when assessing whether there
existed a lost opportunity to survive that was greater than 50%, as opposed to simply evaluating
the chance of survival pre-malpractice as held by the Wickens panel. Plaintiff, however, did not
agree with Fulton’s percentage-point-differential construction of MCL 600.2912a(2), contending
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that the pure percentage approach embraced by Justice MARKMAN in Stone and O’Neal constituted
the proper interpretation of the statute. Plaintiff was of the view that O’Neal effectively discarded
the percentage-point-differential formula utilized in Fulton. Plaintiff’s position on appeal is
consistent with his position below. Although plaintiff does not engage in any type of mathematical
computation or calculation, he plainly concludes that there was a 50% decrease in Patricia’s
opportunity to survive, even assuming that her chance of survival did not diminish by 50
percentage points. The trial court stated that it was applying Fulton, but the court never expressly
spoke in terms of the percentage-point-differential formula. The fundamental aspect of the trial
court’s ruling was that the status of Patricia’s cancer in November 2015 was too unknown and
speculative to make any finding of her chances to survive at that time.
I have now concluded that Fulton remains controlling law even after O’Neal was issued,
including Fulton’s percentage-point-differential formula, but Fulton is good law only in the
context of a loss-of-opportunity action. I note that even if Fulton is disregarded, the binding
decision in Lanigan, 282 Mich App at 567, applied the Fulton analysis with respect to a lost-
opportunity lawsuit, which type of suit O’Neal did not address. While plaintiff argues that Fulton
should be revisited by this Court and that the percentage-point-differential formula is contrary to
the plain language of MCL 600.2912a(2), I conclude that any change in the interpretation of the
loss-of-opportunity provision, at this stage of the caselaw history and development, must come
from our Supreme Court. I now proceed with my analysis under Fulton.
Defendants’ position with respect to summary disposition essentially operated on the
assumption that Dr. Alsawah was negligent by not ordering additional testing in November 2015
and that Patricia indeed had metastatic colorectal cancer involving her liver and possibly her
adrenal glands at that time. I understand that these were assumptions for purposes of summary
disposition and that defendants were not conceding that malpractice occurred or that the cancer
was present in Patricia’s liver or adrenal glands in November 2015. At its core, defendants’
argument was that assuming those points, there was no genuine issue of material fact that Patricia’s
opportunity to survive in November 2015 was not greater than 50%, nor was her opportunity to
survive in 2015 more than 50 percentage points greater than her opportunity to survive in 2017
when the cancer diagnosis was actually made.
I would hold that under this Court’s opinion in Fulton with respect to the interpretation of
MCL 600.2912a(2), the trial court did not err in granting summary disposition to defendants.
Viewing the evidence in a light most favorable to plaintiff, I start from the position that Patricia’s
opportunity to survive in 2017 when she was diagnosed with metastatic colorectal cancer was
essentially zero or negligible. The surgeon who saw Patricia after the 2017 diagnosis had opined
that a resection was “technically feasible,” but he seriously questioned whether Patricia could
recover from the surgical procedure, and that was without taking into account the possibility that
the cancer had spread to one or both of her adrenal glands. More importantly, defense counsel
asked Dr. Gordon about the statistical likelihood of survival under the circumstances facing
Patricia in 2017 when the metastasis was discovered, and Dr. Gordon responded:
Again, it depends upon exactly what is the presentation, but someone who
is presenting with a large mass in the liver with multiple other masses in the liver,
what looks to have both adrenal glands involved, and a performance status that is
not good, the survival would have been considered less than a year.
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When asked whether he meant that almost 100% of patients in such circumstances would not
survive, Dr. Gordon answered:
If they have a big large mass in the liver, multiple other masses in the liver, and disease in
the adrenal gland and their medical condition is poor, they tend not to [survive] because they don’t
tend to get treatment or tolerate treatment.
Again, viewed in a light most favorable to plaintiff, this evidence could lead a reasonable
juror to conclude that Patricia had no chance of survival upon diagnosis in 2017. Consequently,
under Fulton’s percentage-point-differential formula, plaintiff was required to submit
documentary evidence quantifying or otherwise showing that Patricia’s opportunity to survive in
November 2015 was greater than 50%. Such evidence would demonstrate a loss of the opportunity
to survive that exceeded 50 percentage points. Dr. Gordon’s deposition testimony revealed his
opinion that absent the alleged malpractice, there was a missed opportunity to take curative-intent
measures, such as surgery, or to look into other types of treatment to extend survival. But simply
providing evidence that Patricia would have had a chance to survive had the metastasized cancer
been discovered in 2015 instead of 2017 did not suffice to create a jury-triable issue under MCL
600.2912a(2). Because of all of the unknown variables at play, Dr. Gordon simply could not “give
a specific number” in regard to a percentage-based opportunity for survival in November 2015. A
jury would have to engage in pure speculation in determining whether Patricia’s lost opportunity
to survive in 2015 was greater than 50%.
In Dr. Gordon’s summary-disposition affidavit, he averred that detection of the cancer in
2015 would have resulted in “a better diagnosis,” “in a much more favorable category for a
successful treatment outcome” or “for long-term survival,” in “a higher rate of curative treatment,”
in a “more likely . . . option for curative-intent surgery,” and in “an opportunity to achieve a better
result.” These vague claims are effectively no different from Dr. Gordon’s assertions in his
deposition—there is no specificity or quantification as necessary to conduct an analysis and make
a finding under this Court’s decision in Fulton. Each of Dr. Gordon’s opinions would be accurate
whether Patricia’s opportunity for survival was 10% or 51% in 2015, absent any ability for a juror,
on the basis of evidence, to settle upon a final figure.
Plaintiff argues that under Lanigan, 282 Mich App 558, a party is not required to supply
numerical or quantitative statistical data to satisfy the Fulton standard; rather, nonnumerical or
nonquantitative testimony can provide the necessary information compelled by Fulton. In
Lanigan, this Court noted that a doctor’s “nonquantitative statements convey[ed] a greater than 50
percent chance of a better result” when the doctor expressed that the plaintiff would have suffered
little or no functional deficit had she received bypass surgery rather than a heart transplant.
Lanigan, 282 Mich App at 568. The Court observed that the doctor’s statements were tantamount
to describing a nearly 100% better result. Id. In this case, Dr. Gordon did not provide any
testimony or averments that even came close to the definitive statements made by the doctor in
Lanigan. If Dr. Gordon had indicated that Patricia would have been a good candidate for surgery
in 2015 and in all likelihood would have survived the metastasized colorectal cancer, I would agree
that it would qualify as evidence that Patricia had a greater than 50% opportunity for survival in
2015. But no such evidence was presented.
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Plaintiff argues that the connotation arising from Dr. Gordon’s use of phrases such as
“more likely,” “higher rate,” or “more favorable” is that there was a greater than 50% chance that
Patricia would have survived had the metastasis been discovered in 2015. Minimally, according
to plaintiff, reasonable jurors could disagree on the matter. First, Dr. Gordon unequivocally
testified that he could not “give a specific number” in regard to the statistical opportunity for
Patricia to survive. Moreover, as I noted earlier, Dr. Gordon’s averments can potentially convey
a view that Patricia’s opportunity to survive was below or above the threshold when considered in
relationship to the evidence that Patricia essentially had no chance for survival when diagnosed in
2017. And, again, jurors would have to speculate in reaching or finding a numerical percentage
because there would be no evidence to guide them in selecting from the range.
In the affidavit, Dr. Gordon also stated that the “literature indicates, in surgical case series,
five-year overall survival rates following surgical resection of metastatic colorectal cancer to the
liver range from 24 to 58 percent.” I first note that this averment can be construed as being contrary
to Dr. Gordon’s deposition testimony, in which he refused to provide any numerical survivor rates
and emphasized that it was not possible to place a specific percentage on Patricia’s chance of
survival in 2015 because there were too many unknown variables. See Downer v Detroit Receiving
Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991) (“Parties may not create factual issues by
merely asserting the contrary in an affidavit after giving damaging testimony in a deposition.”).
Additionally, the article from which Dr. Gordon obtained the statistics was last updated with new
evidence on November 5, 2020; consequently, its relevancy to liver resections in 2015 is unknown.
Furthermore, the statistics revealing a five-year, survival-rate range of 24 to 58 percent
pertained to cancer patients who underwent resections. As quoted earlier, the UpToDate article
showing the statistical range stated that “[i]t is safe to say that a majority of patients with metastatic
disease are not potentially curative surgical candidates because of tumor size, location,
multifocality, or inadequate hepatic reserve.” And Dr. Gordon could only say that Patricia’s option
for surgery in 2015 was better or more feasible than in 2017, but, again, there were too many
unknown variables to definitively find that Patricia would have been a candidate for a resection in
2015. Also, even with respect to patients who underwent a resection, the UpToDate article
indicated that the average five-year-survival rate was 40%, which would fail to meet the percentage
needed by plaintiff to succeed on the lost-opportunity claim.15 Finally, I find telling that Dr.
Gordon, while referencing the five-year-survival statistics that ranged from 24 to 58 percent, did
not specifically aver that Patricia’s particular circumstances gave reason to categorize or view her
like the group of patients who had a five-year survival rate of over 50%, as opposed to a lower rate
that would not suffice to save plaintiff’s suit. Jury speculation would absolutely be necessary for
plaintiff to satisfy the percentage-point-differential standard set forth by this Court in Fulton.
15
MCL 600.2912a(2), while addressing the loss of an opportunity to survive, provides no
parameters regarding the prospective length of time of survival that should be measured; the
opportunity to survive one year can differ from the opportunity to survive five years. The parties
do not delve into this subject, and I thus decline to do so. I note that the record showed that a five-
year survival rate is a common benchmark used in cancer research and treatment.
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In sum, I would hold that plaintiff’s suit is ultimately too speculative and that there is no
genuine issue of material fact that Patricia’s lost opportunity to survive was not greater than 50%
under Fulton’s construction of MCL 600.2912a(2). Additionally, I disagree with the majority that
this case is not a lost-opportunity suit. Moreover, plaintiff has waived any right to pursue this case
as a traditional medical malpractice action. Accordingly, I conclude that the trial court did not err
by granting summary disposition in favor of defendants and therefore dissent.
/s/ Jane E. Markey
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