Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 24, 2008 CARL STONE and NANCY STONE, Plaintiffs-Appellees,

v No. 133986 DAVID A. WILLIAMSON, M.D., JACKSON RADIOLOGY CONSULTANTS, P.C., and W. A. FOOTE MEMORIAL HOSPITAL, Defendants-Appellants.

BEFORE THE ENTIRE BENCH TAYLOR, C.J. In this case, the Court is called on to examine the doctrine of “lost opportunity” set forth in MCL 600.2912a(2), which prohibits reco very for the loss of an opportunity to surv ive or achieve a better resu lt unless the opportunity was greater than 50 percent, and the construction of that statute in Fulton v William Beaumont Hosp , 253 Mich App 70; 655 NW2d 569 (2002). The Court of Appeals in this case considered the aggregate of complica tions plaintiff faced and concluded that plaintiff sa tisfied the statute, using Fulton ’s requirement that the difference between his chance of a better res ult without malprac tice and his chanceof a better result despite the alleged ma lpractice was greater th an 50 percentage points. I conclude that the second se ntence of MCL 600.29 12a(2) does not apply to this case. Moreover, I believe the s econd sentence is unenforceable because it provides no guidan ce regarding its meaning or ho w courts are to apply it. A medical-malpractice plaintiff must prove th at he or she suffered an injury that more probably than not was proximately caused by the ne gligence of the defendant. Because the evidence presented at tr ial would support the jury’s verdict under my analysis, I conclude that there is no need to conduct a new trial and would therefore affirm the re sult of the Court of App eals judgment but not its analysis.
I. FACTS AND PROCEEDINGS Plaintiff suffered the ruptu re of an abdominal aor tic aneurysm that had gone undetected despite physical exam inations and testing by a number of physicians. 1 He underwent emergency surgery to repair the rupture, but, in part because of preexisting conditions, amputa tion of both legs at mid-thigh was ultimately necessary. Aft er surgery, plaintiff contin ued to experience multiple organ failure and other complications, in cluding acute renal failure, sepsis, rhabdomyolysis, osteomyelitis, recurrent pa ncreatitis, and depression. His home

1 Throughout this opinion, “plaintiff” refers to Carl Stone; the claim of his wife, Nancy Stone, is derivative in nature.

2required structural changes to accommodate his wheelchair and specialized needs, and his wife quit her employment to assist with his daily care needs. Plaintiff brought a medical-malpractice suit against the radiologist and two vicariously liable entities on the theory th at a negligent diagno sis resulted in the rupture and all resulting harm. At the jury trial, plaintiff presented experts who testified that, had the aneurysm been properly diagnosed, elective surgery could have been performed. Su ch elective surgery woul d have greatly increased plaintiff’s chance of a better medical outco me, including a reduction of the risk of amputation and other health complications. Plaintiff’s medical experts testified that a patient having elective surgery to re pair an aortic aneu rysm has a 95 percent chance of attaining a good res ult, which includes surviving the rupture, as well as avoiding additional medical complications. In contras t, misdiagnosed patients whose aneurysms rupture have only a 10 percen t chance to achie ve a good result. Specifically, the experts opine d that 80 percent of patien ts with a rupture of an aortic aneurysm die, either en rout e to obtain medical care or during the emergency surgery. Of the 20 percent of patients with ruptures who manage to survive, 40 to 50 percent have some form of complication. This contrasts markedly with those underg oing elective repair, who f ace less than a 5 percent risk of dying or suffering serious complications. Defendants argued that the risk of d eath should be fact ored out because plaintiff avoided it and that the risk of complications ot her than death was 5 to 12 percent for elective su rgery and up to 40 percent for emergency su rgery. Taking

3the numbers most favorable to plaintiff, 5 and 40, defendants argued that the difference was at best 35 percent. The sp ecific risk of amputation suffered by plaintiff was 1 percent for el ective surgery and 5 percent for emergency surgery: a paltry difference of 4 percent. The trial court disagreed with defendant s’ theory, however, and instructed the jury to consider the aggreg ate risk of complications. The jury returned a verd ict in favor of plaintiff for a total amount of $2,327,835. Following reduction for the damages cap 2 and collateral sources, the court entered a judgment in the amount of $1,936,682, of which $1,640,800 was
for the verdict and the remainder was for in terest, costs, and attorney fees. The trial court denied defendants’ postjudgment motions for a new trial and judgment notwithstanding the verdict. The Court of Appeals affirmed in an unpublished opini on per curiam, issued April 17, 2007 (Docket No. 265048). On the issue of “loss of opportunity,” it agreed with the trial court that plaintiff had met the requirements of the statute because he had gone from a 95 percent chance of attainin g a good result to a 10 percent chance of attaining a good result. Id . at 5. The Court considered the aggregate of all the increased risks that plaintiff faced as a result of the alleged malpractice and applied the Fulton formula to that aggregate risk.

2 MCL 600.1483.

4This Court granted leave to appeal , directing the parties to address (1) whether the requirements set fo rth in the seco nd sentence of MCL 600.2912a(2) apply in this case; (2) if so, whether the “loss of an opportunity to survive or an opportunity to achieve a better result” should be det ermined by considering the aggregate increased risk posed by the alleged malpractice, including risks associated with injuries that the patient did no t suffer and any increased risk of death, or whether the only considera tion should be th e increased risk of the specific injury or injuries suffered by the patient; (3) whether Fulton v William Beaumont Hosp , 253 Mich App 70 (2002), was correctly decided, or whether a different approach is required to correctly implement the second senten ce of § 2912a(2), such as that described in Roy W. Waddell, M.D.’s A Doctor’s View of Opportunity to Survive: Fulton’s Assumptions and Math are Wrong , published in the March, 2007 edition of the Mi chigan Bar Journal at 32; and (4) whether the Court of Appeals erred when it determined that the plaintiffs met the requirem ents of § 2912a(2). [480 Mich 895 (2007).] II. STANDARD OF REVIEW This Court reviews de novo a tria l court’s decision on a motion for judgment notwithstanding the verdict, viewing the evidence and all legitimate inferences in the light most favorab le to the nonmoving party. Sniecinski v Blue Cross & Blue Shield of Michigan , 469 Mich 124, 131; 666 NW2d 186 (2003). Similarly, we review de novo questio ns of statutory interpretation. Wickens v Oakwood Healthcare Sys , 465 Mich 53, 59; 631 NW 2d 686 (2001 ). When interpreting a statute, the Court’s primary go al is to give effect to the intent of the Legislature. Brown v Detroit Mayor , 478 Mich 589, 593; 734 NW2d 514 (2007). The first step is to review th e language of the statute. Id. If the statute is unambiguous on its face, we presume that the Legislature inte nded the meaning expressed, and judicial constructi on is neither required nor permissible. Id

.

5However, when a statute is ambiguous on its face—that is, equally susceptible to more than a single meaning—judicial constr uction is appropriate to determine the meaning. Lansing Mayor v Pub Service Comm , 470 Mich 154, 164-166; 680 NW2d 840 (2004).
III. ANALYSIS At issue in this case is subsection 2 of MCL 600.2912 a, which reads: In an action alleging medical ma lpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximatel y caused by the ne gligence of the defendant or defendants. In an action allegi ng medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a bett er result unless the opportunity was greater than 50%. [M CL 600.2912a(2).] [3] Although the lower courts did not question the app licability of the second sentence of MCL 600.2912a(2) to plaintiff’s claim, treating it as one for loss of opportunity, this Court expressly request ed the parties to address the issue. Plaintiff argues that he never pleaded his claim as one for loss of an opportunity; instead, his is a simple case of physical in jury directly caused by negligence. In his brief, he asserts that a case involving a loss of op portunity occurs in very specific circumstances: “where a plaintiff cannot prove that the defendant’s acts or

3 In addition, subsections 1(a) and (b) of the statute both include language requiring the plaintiff to sh ow that, “as a proximate result of the defendant failing to provide [the appr opriate standard of practice or care], the plai ntiff suffered an injury.” MCL 600.2912a(1)(a) and (b).

6omissions proximately caused his injuries, but can prove that the defendant’s acts or omissions deprived him of some chance to avoid those injuries.” This definition is in accord with Mich igan caselaw. In the first Michigan case to refer to the legal theory of “the value of lost ch ance,” the Court of Appeals explained: “This theory is potentially available in situations where a plaintiff cannot prove that a defendant’s actions were the cause of his injuries, but can prove that the defendant’s actions deprived him of a chance to avoid those injuries.” Vitale v Reddy , 150 Mich App 492, 502; 389 NW2d 456 (1986). The Court in Vitale noted that allowing such claims would expand existing common law, and it declined to do so, stating that su ch a decision “is best left to either the Supreme Court or the Legislature.” Id . at 504. In a footno te, the Court observed that the wrongful-death st atute, MCL 600.2922, requires proof that the wrongful act s or omissions were the cause of death. The statutory provision w ould not allow a plaintiff to recover in a situation where he could prove only that defendant’s acts or omissions were the cause of a lost chance but could not prove that defendant’s acts or omissions were the cause of death. [ Id. at 504 n 4.] In accord with this analysis, this Court has stated: “The lo st opportunity doctrine allows a plaintiff to recov er when the defendant’s negligence possibly , i.e., [by] a probability of fifty percent or less, caused the plai ntiff’s injury.”

7Weymers v Khera , 454 Mich 639, 648; 563 NW2d 647 (1997) (emphasis added). 4
The Weymers Court aptly described the lost-oppor tunity doctrine as “the antithesis of proximate cause.” Id

. 5 In cases in which the plaintiff alleges that the defendant’s negligence more probably than not caused the injury, the cl aim is one of simple medical malpractice. Id . at 647-648.
In Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990), this Court first recognized a claim for lost opportunity to survive. Falcon was a wrongful

death case in which this Court allowed a claim to go forward even though the plaintiff’s granddaughter woul d have had only a 37.5 pe rcent chance of surviving a medical accident had she received pr oper care. Because proper medical procedures had not been followed, the granddaughter’s chan ce of surviving the accident went to essentially zero. The lead opinion in Falcon admitted that the plaintiff could not show th at the malpractice had more lik ely than not caused her granddaughter’s death, but c ould show that it ha d caused her gra nddaughter to lose a “substantial opportunity of avoiding physical harm.” Id . at 470 (Levin , J.). The

4 Although this Court decided Weymers long after the stat ute at issue was enacted in 1993, the negligence alleged in Weymers occurred before 1993. Accordingly, the Court applied the common law rather than the statute.

5 I agree with Justice Cavanagh’s reas oning and conclusion that Justice Markman’s definition of a lost -opportunity case is overbro ad and inconsistent with the common-law meaning at the tim e MCL 600.2912a(2) was enacted. Post at 17

- 20. Long before Falcon v Mem Hosp , 436 Mich 443; 46 2 NW2d 44 (1990), plaintiffs successfully brought actions for medical malpracti ce even though they had preexisting conditions or might have had a bad result de spite being properly treated.

8lead opinion disavowed the t raditional rule that requires a plaintiff to show that, but for the defendant’s negligence, th e patient would not have suffered the physical harm, saying that the “more proba ble than not standard , as well as other standards of causation, are analytic devi ces—tools to be used in making causation judgments.” Id . at 451. Instead, despite the fact that the plaintiff could not show that the doctor’s malpractice had mo re probably than not caused her granddaughter’s death, the plaintiff had a claim because the ma lpractice did cause her granddaughter harm. The 37.5 percent chance fo r a better outcome was “hardly the kind of opportunity that any of us wo uld willingly allow our health care providers to ignore.” Id . at 460. This harm occurred before the granddaughter’s death, at the moment “[w]hen, by reason of the failure to implement [certain] procedures,” she was denied any opportun ity of living. Id . at 469, 471 n 44. The lead opinion characterized its holding as requi ring the plaintiff to show, more probably than not, that the malpracti ce reduced the opportunity of avoiding harm: “failure to protect [the granddaughter’s ] opportunity of living.” 6
Id . at 469. Loss of her 37.5 percent opportun ity of living, the lead opinion stated,

6 Only Justice Archer join ed Justice Levin’s lead opinion. Justice Boyle wrote a concurrence, joined by Justice Cavanagh, that agreed that tort law should allow a claim for “lost opportunity to survive” when “the negligence of the defendant more probably than not cau sed the loss of opportunity.” Falcon, supra at 472-473 (Boyle, J., concurring). Ho wever, the concurren ce noted that “any language in the lead opinion suggesting that a similar cause of action might lie for a lost opportunity of avoiding le sser physical harm is dicta.” Id . at 473.

9“constitutes a loss of a substantial opport unity of avoiding physical harm.” Id. at 470. The lead opinion in Falcon thus concluded that the loss-of-o pportunity claim accrued not when the patient died, bu t at the moment she went from having a 37.5 chance of survival to having no chance of survival. Under this theory, a plaintiff would have a cause of action independent of that for the physical injury and could recover for the malpractice that caused the plaintiff to go from a class of patients having a “good chance” to one having a “bad chan ce.” Without this analysis, the plaintiff in Falcon would not have had a viable clai m because it could not have been shown that the defendant more probab ly than not caused the physical injury. Until Falcon , medical-malpractice plain tiffs alleging that the defendant’s act or omission ha stened or worsened the injury (such as by failing to diagnose a condition) had to prove that the defendant’s malpractice more probably than not was the proximate cause of the injury. See, e.g., Morgan v Taylor , 434 Mich 180; 451 NW2d 852 (1990); Naccarato v Grob , 384 Mich 24 8, 252; 180 NW2d 788 (1970); Skeffington v Bradley , 366 Mich 552; 11 5 NW2d 303 (1962). When the Court decided Falcon , MCL 600.2912a read: In an action alleging malpractice the plaintiff shall have the burden of proving that in light of the state of the art existing at the time of the alleged malpractice: (a) The defendant, if a general practitioner, faile d to provide the plaintiff the recognized sta ndard of acceptable professional practice in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff su ffered an injury.

10(b) The defendant, if a specia list, failed to provide the recognized standard of care within that specialty as reasonably applied in light of th e facilities available in the community or other facilities reasonably ava ilable under the circumstances, and as a proximate result of the defendant fa iling to provide that standard, the plaintiff suffered an injury. Three years after Falcon , the Legislature enacted 1993 PA 78, amending MCL 600.2912a to add the second subsecti on. In its entirety, the statute as amended reads: (1) Subject to subsection (2), in an action alleging malpractice, the plaintiff has the burden of provin g that in light of the state of the art existing at th e time of the alleged malpractice: (a) The defendant, if a general practitioner, faile d to provide the plaintiff the recognized sta ndard of acceptable professional practice or care in the community in which the d efendant practices or in a similar community, and th at as a proximate result of the defendant failing to provi de that standard, th e plaintiff suffered an injury. (b) The defendant, if a specia list, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury. (2) In an actio n alleging medical malp ractice, the plaintiff has the burden of provi ng that he or she suffere d 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%. [New language emphasized.] As can be seen, the Legislature ret ained the already-existing language, making it subsection 1 of the statute. Both subsection 1(a) and subsection 1(b) require the plaintiff to show that, “as a proximate result of the defendant failing to

11provide [the appropriate standard of p ractice or care], the plaintiff suffered an injury.” Further, the Le gislature added subsection 2. Specifically, the first sentence of this new subsection codifies and reiterates the common-law requirement that a plaintiff show that the defendant’s malpractice more probably than not caused the pl aintiff’s injury. Th e second sentence of subsection 2 adds that, in medical-malpractice cases, a “plaintiff cannot recover for loss of an opportunity to survive or an opportuni ty to achieve a be tter result unless the opportunity was great er than 50%.” However, one must keep in mind that the relevant caselaw when subs ection 2 was enacted held that the lost-opportunity doctrine applies “ in situations where a plaintiff c annot prove that a defendant’s actions were the cause of his injuries . . . .” Vitale, supra at 502 (emphasis added). That is, the first sentence of subsection 2 requires plaintiffs in every medical

malpractice case to show the defendant ’s malpractice proximately caused the injury while, at the same time, the seco nd sentence refers to cases in which such proof not only is unnecessary , but is impossible. Accordingly, I conclude that the two sentences of subsection 2 create a para dox, allowing claims in the second sentence while precluding them by the first sentence. While it is tempting to argue, as Justi ce Cavanagh does, th at the Legislature intended to allow as an “inj ury” a plaintiff’s lost ch ance alone, with out proof of physical injury, this Court addressed that issue in Wickens . In Wickens , supra at 60, the Court stated that the first se ntence of subsection 2 “expressly limits recovery to injuries that have already been suffered and more probably than not

12were caused by the defendant ’s malpractice.” A reducti on of a person’s chances of avoiding injury is not itself a present injury, but is only an indication of the likelihood of suffering a future injury. Id. at 60-61. Therefo re, because of the statutory present-injury re quirement, the plaintiff in Wickens could not recover for her reduced expected life span—t he exact kind of injury that Falcon allowed. Moreover, it has never been the law in this state that a negligence suit can be sustained when the alleged negligence did not cause a physical in jury to a person or property. Henry v Dow Chem Co , 473 Mich 63, 75-76; 701 NW2d 684 (2005). The Legislature would have understood th at this is what the term “injury” encompassed when it enacted the language reiterati ng this traditional requirement: the plaintiff must have an injury proximately caused by the defendant. 7 Ford Motor Co v City of Woodhaven , 475 Mich 425, 439-440; 716 NW2d 247 (2006). Thus, what the Legislatu re intended by the statute was likely something more

7 While Falcon superficially recognized this, it determined that the patient’s death, which could not be said to have been caused by the doctor’s malpractice, was the physical injury she suffered. By permitting the plaintiff to recover for a different injury (loss of an opportunity to survive), the Court ignored the fundamental requirement that a tort plain tiff must suffer a physical injury that was caused by the defendant’s negligence. Instead of clarifying that it was significantly redefining “injury” in a w holly new way, the lead opinion in Falcon first focused almost comp letely on relaxing the burden of proof regarding causation. See, e.g., Falcon, supra at 449-453 and nn 5 and 6, 455-457 (Levin, J.). Then it recited foreign cases holding that a reduction in chances is a compensable injury and determined that to be sound. Id. at 461-468. Th e opinion did not appear to recognize that th is was contrary to a considerable body of existing Michigan caselaw. See id. at 494 (Riley, J., diss enting) (“The recovery of damages for the loss of a mere chance eviscerat es the principles that underlie our tort law.”).

13traditional: a situation in wh ich an injury might have occurred anyw ay, but in which the defendant’s act or omission hastened or worsen ed it in such a way that the plaintiff suffered more severe physical injury than he or she would have had the negligence not occu rred. As noted, before Falcon , such cases were litigated under the ambit of traditional medical-malpractice law. 8 In my view, there is little question that the statute cannot be interpreted as written. Avoiding the underl ying paradox of the statute allowing in one sentence suits that in another sent ence it precludes, the Court of Appeals, interpreting the second sentence by itself in Fulton , found two possible, an d fully contradictory, constructions, each of which could be achieved only by addi ng words to the statute. The Fulton Court expressed the issue b efore it as whether the second sentence of the statute requires a pl aintiff to show “only that the initial opportunity to survive before th e alleged malpractice was greater than fifty percent . . . or, instead, that th e opportunity to survive was reduced by greater than fifty percent because of the alleged malpractice . . . .” Fulton, supra at 77-78 (emphasis

8 Justice Cavanagh asserts that a plai ntiff cannot claim a lost opportunity “unless [the] plainti ff suffered a verifiable loss .” Post at 9 n 2. Justice Markman appears to agree with him th at a bad result must occur, otherwise the opportunity has not been lost. Post at 14-15. Certainly, in such cases the defendant’s conduct might have increased the likelih ood of a bad result. Yet if the plaintiff is unable to show that the defendant’s negligence cau sed the bad result, how can he or she nonetheless show that the defendant’s negligence caused the opportunity to be lost? This is the heart of the problem with allowing loss-of-opportunity claims: either the patient has a concrete injury, in which case he or sh e should be required to prove causation, or th e plaintiff does not, in which case the defendant should not be held liable. See Henry, supra at 75-76.

14added). The Court noted that the stat ute was ambiguous b ecause reasonable minds could differ regarding which of these mean ings could be read from the words of the statute. The Court conc luded that the first interpret ation required that the word “initial” be inferred to modify “opportunity ” and that the second required that the words “loss of” be inferred to modify “opportunity.” Id . at 80. Apparently finding itself obligated to choose one of these two inte rpretations, the Court then decided that the second construction wa s the one intended by the Legislature because it reflected the Legislature’s rejection of Falcon

. 9 The Court asserted that the lead opinion in Falcon had focused on th e “extent of the loss” and that the Legislature was insisting on a greater loss for the claim to be actionable. Id. at 82

- 83. However, Falcon ’s focus was almost entirel y on the plaintiff’s initial opportunity being substantial, and so it is equally plausible that the Legislature merely intended for a plaintiff to have an initial opportunity of more than 50 percent. Both interpret ations proposed in Fulton implicate a negative reaction to Falcon , and nothing in th e statutory language, the st atutory context, or the statute’s history gives any further clue s to assist in c hoosing the “correct” interpretation.

9 I agree with Justice Cavanagh, post at 12, that Justice Markman’s interpretation (and that of Fulton ) improperly adds to the statute the words “loss of,” effectively replacing the word “opportu nity” where it is us ed the second time with the phrase “loss of oppo rtunity.” The only basis fo r adding this language is the simple desire to ma ke the statute so read.

15It is confounding to attempt to as certain just what the Legislature was trying to do with this am endment. Even if it was trying to create a remedy for the “injury” of a reduction in chances follo wing medical malpractice, by imposing the threshold of greater than 50 percent it may we ll have eliminated most of the cases that might benefit from such a rule. For example, if the patient in Falcon had enjoyed a greater than 50 percen t initial likelihood of survival (that is, she was not likely to die even with proper treatment), the plai ntiff probably would have brought a standard medical-malpractice ca se, and the jury would have decided proximate cause in the usual way. It wa s only because the plaintiff could not show that the patient more probab ly than not would have survived but for the doctor’s negligence that prompted th e plaintiff to seek her remedy under the doctrine of lost opportunity. 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 th at 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 sh own to be the “correct” construction of legislative intent. Choosi ng between them can only be a guess. Moreover, it remains that the second sentence impossi bly conflicts with the requirement of a proximate cause of the inju ry in both the first senten ce of subsection 2 and in

16subsection 1. Accordingly, I conclude that the second sent ence of subsection 2 cannot be judicially en forced because doing so requires the Court to impose its own prerogative on an act of the Legislature. 10
I find the second sentence of MCL 600. 2912a(2), as written, substantially incomprehensible because (1) it either cannot be h armonized with the proximate

cause requirement of the rest of the statut e or creates by implication a new cause of action contrary to common law and (2 ) it provides no gu idance regarding its correct application. The rem aining portions of MCL 600.2912a shou ld continue in effect. MCL 8.5. This would leave, for medical-malp ractice claims, the requirement imposed by the statute that “the plaintiff has the burden of proving th at he or she suffered an injury that more probably than not was proximat ely caused by the negligence of the defendant or defendants.” MCL 600.2912a(2). 11 In addition, the word “injury” would continue to ret ain its meaning in tort of a present physical injury to person or property. I belie ve that, by codifying and restating the requirements of

10 See, e.g., Mini Spas, Inc v State , 657 P2d 1348, 13 50 (Utah, 1983) (refusing to rewrite “by judicial interv ention” an act purporting to create a regulatory board because the act “cannot be implemented as written” and stating that “[p]laintiff must seek a solution to this problem from the Legislature”); Warren v Branan , 109 Ga 835, 840; 35 SE 383 (1900) (holding that the provisions of an act seeking to establish the geograp hical limits of a town “are so indefinite, uncertain, and incomplete that the legisl ative intent can not be ascertained and given effect, and that therefore the act is wholly inoperative”).

11 Even if we were to strike both sent ences of subsection 2, the proximate

cause requirement would rem ain in subsection 1.

17causation and injury in existence at the time Falcon was decided, the Legislature effectively overruled Falcon and reinstated the traditional elements of medical

malpractice claims. In accord with my conclusion th at the second sentence of MCL 600.2912a(2) is incomp rehensible as written, I would hold that Fulton ’s construction of that part of th e statute is no longer good law. 12 I believe that the Legislature intended to retain the traditi onal proximate-cause requirement in effect before Falcon and that that is what a plaintiff must prove. 13

12 Moreover, to the extent it could be considered as providing a method of determining proximate cause in failu re-to-diagnose cases, I believe that Fulton was incorrectly decided. Fulton ’s simplistic formula fails to consider that some patients would achieve a good result regardless of whether they received proper or improper treatment and, co nversely, that some patients would achieve an unfavorable result regardless of the qualit y of their treatment. In any formula assessing causation, patient s who would have had a fav orable outcome regardless of treatment need to be taken out of the equation. See, e.g., Waddell, A doctor’s view of “opportunity to survive” : Fulton’s assumptions and math are wrong , 86 Mich B J 32 (March 2007). Accordingly, I agree with Jus tice Markman that Waddell’s formula is one method of accu rately assessing causation in cases in which there are multiple possibl e contributing causes.

13 I agree with Justice Mark man that if the Legislat ure desires to allow a cause of action for lost opportunity, it shou ld do so in a way that clearly indicates when such claims are allowed an d how they should be analyzed. Post at 36 n 26. For example, Falcon ’s analysis was based on a method found in King, Causation, valuation, and chance in personal injury torts involving preexisting conditions and future consequences , 90 Yale L J 1353 (1981), wh ich identified several ways of analyzing lost-opportunity claims.

18IV. APPLICATION Although I believe that the low er courts erred by applying Fulton and that the trial court incorrectly inst ructed the jury on the issue of whet her plaintiff had shown that defendant’s negl igence caused him to lose a greater than 50 percent chance of a better result, I would conclude that it is not necessary to order a new trial. For each defendant, the trial court instructed the ju ry that it had to find by a preponderance of the evidence (1) that the defendant was pro fessionally negligent, (2) that plaintiff sustaine d injury and damages, and (3) that the professional negligence or malpractice of that defendant was a proxim ate cause of the injury and damages. After giving these instructi ons, the court further instructed the jury: “I’m going to talk about damages. In an action alleging claims of professional negligence against a physician, even if you find professi onal negligence, the Plaintiff cannot recover unless the Plainti ff’s chance of having a better result was changed by greater than 50 percent.” Thus, after being instructed that it had to find the traditional elements of medical ma lpractice and, in addition, had to find that plaintiff had lost an opportunity of greater than 50 percent, the jury returned a verdict indicating it had found that all th ese elements were satisfied. Indeed, a review of the record shows th at plaintiff suffered amputations and other injuries, and from the testimony presented the jury could have conclude d that it was more likely than not that the amputations and other injuries were caused by the defendants’ negligence and w ould not have occurred absent that negligence. Most importantly, regardless of the jury’s finding of lost opportunity , it is clear from the

19way the instructions were give n that the jury found that the traditional elements were met: defendants’ neg ligence more probably than not caused plaintiff’s injuries. Thus, I believe that the jury properly found that plaintiff had satisfied the causation and injury elements . Accordingly, I would ho ld that reversal is not required and would affirm the result of th e judgment of the C ourt of Appeals.
V. SUMMARY In an attempt to clarify for the reader the majority and minority positions on each issue, I provide the following summary: All seven justices would affirm the res ult of the Court of Appeals decision and the judgment for plaintiff. Six of the justices believ e that this is not a lost

opportunity case; Justice M arkman 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 thei r reasons for do ing so vary. 14 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 writte n. Justice Markma n 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

14 However, because a majority of jus tices hold that this is not a lost

opportunity case, the i ssue of the correctness of Fulton cannot be reached, and Fulton ’s approach remains undisturbed as the me thod of analyzing lost

opportunity cases. Nonethele ss, because the patient in Fulton would likely have survived had she received a timely diagnosis , I would assert that the claim should have been treated as one for ordinary medical malpractice and that the lower courts erred in applying to it th e doctrine of lost opportunity.

20to the statute when analyzing the phrase “t he opportunity.” Of the four justices holding that the statute is not unen forceable as written (Justices Weaver, Cavanagh, Kelly, and Markman), only Jus tice Markman would define the term “opportunity” in acco rdance with the Waddell article, while the other three (Justices Weaver, Cavanagh, and Kelly) would define it in accordance with Falcon , but with a high er 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 oppor tunity must be “lost”—that is, the bad result must occur—in order for a claim to accrue. Given this montage of issues and positions creat ed by the language of this statute, it would be helpful for the Legislature to reexam ine its goal and the policies it wishes to promote and strive to better articulat e its intent in that regard.

Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr.

21v S T A T E O F M I C H I G A N SUPREME COURT

CARL STONE and NANCY STONE, Plaintiffs-Appellees, No. 133986 DAVID A. WILLIAMSON, M.D., JACKSON RADIOLOGY CONSULTANTS, P.C., and W. A. FOOTE MEMORIAL HOSPITAL, Defendants-Appellants.

CAVANAGH, J. I agree with Chief Justice Taylor that the evidence presen ted in this case supports a traditional medical-malpractice cl aim; thus, I concur that the jury’s verdict should be u pheld. However, I do not agree with the conclusion that the second sentence of MCL 600.2912a(2) is incomprehensible and unenforceable. Therefore, I respectfully disag ree with Chief Justice Tayl or’s analysis of that provision. Chief Justice Taylor identifies two problems with MCL 600.2912a(2) that he believes render it partia lly unenforceable: (1 ) the first and second sentences conflict and (2) the second sentence is in comprehensible. I di sagree, because the circumstances of the 1993 amendment of this statute clarify the meaning of the statutory language and resolve both concerns.THE ORIGINS OF THE LOSS-OF-OPPORTUNITY DOCTRINE The history of the loss-of-opportunity doctrine is highly relevant to the interpretation of MCL 600.2 912a(2) because this Court’ s adoption of the doctrine evidently prompted the Legislatu re to add that provision. In Falcon v Mem Hosp , 436 Mich 443; 462 NW2d 44 (1990), th is Court first recognized the loss-ofopportunity doctrine. 1 Falcon involved a wrongful-death claim brought on behalf of a woman who had suffered an amniotic embolism during childbirth. As in all negligence cases, the plainti ff was required to show causa tion to establish a valid medical-malpractice claim. Falcon discussed various causation theories. Some courts have required a plain tiff to establish “that it is more probable, measured as more than fifty percent, that , but for such neg ligence, the patient would not have suffered the physical harm.” Id. at 449 (Levin, J.). Falcon termed this the “more probable than not standard.” Id . at 451. Under this standard, “a plaintiff who establishes that the patient would have had more than a fifty percent opportunity of not suffering physi cal harm had the defendant not acted negligently, recovers one hundred percent of the damages.” Id . at 450. The plaintiff in Falcon could not have maintained a wrongful-death action under the mo re-probable-than-not

1 Justice Levin wrote Falcon ’s lead opinion, which Justice Archer signed. I joined Justice Boyle’s opinion, which c oncurred in the recogn ition of the loss-ofopportunity cause of action, but clarifi ed that we were only called upon to determine whether such clai ms exist when the ultimate harm is death. Thus, a majority of this Court agreed on the fundamental pr inciples of the loss-ofopportunity doctrine, a lthough Justice Boyle and I would have limited the discussion to the harm that the Falcon plaintiff suffered—death.

2standard—the decedent only had a 37.5 percent chance of surviv ing even without the alleged malpractice, so it was not more probable than not that the physician’s malpractice caused the decedent’s death. Id. at 460. While the plaintiff in Falcon could not recover for the injury of her granddaughter’s wrongful deat h, we ruled that the pl aintiff nevertheless had a different cause of action available to her. Falcon adopted the approach taken by other courts that recognized “ loss of an opportunity for a more favorable result, as distinguished from th e unfavorable result , as compensable in medical malpractice actions.” Id . at 461 (emphasis added). “Und er this approach, damages are recoverable for the loss of opp ortunity although the opport unity lost was less than even, and thus it was not more probable than not that the unfavorable result would or could have be en avoided.” Id . at 461-462. Thus, the Falcon decision explicitly recognized loss of an opportunity to avoid physical harm as a distinct injury . A plaintiff could bring a claim for loss of an opportunity to avoid death, even if she could not maintain a claim for the death itself because she could not establish causation for the death. Falcon ’s approach to calculating damage s for a loss-of-opportunity claim also indicates that it treated the lost opportunity as a distinct injury, not simply a direct physical-harm injury that enjoyed a lower causation sta ndard. Because the plaintiff’s granddaughter in Falcon allegedly lost a 37. 5 percent chance of survival, we concluded that the appropria te measure of damages would be “37.5 percent times the damages recoverable for wrongful death . . . .” Id . at 471. Thus,

3generally speaking, “‘[t]h e proper computation of damages would limit the damages recoverable to only th at amount of reduced ch ance of recovery actually caused by the physician’s negligent conduct.’” Id . at 472 n 47 (citation omitted). We consulted Mays v United States , 608 F Supp 1476, 1482 -1483 (D Co lo, 1985), for its method of com puting damages attributab le to the defendant. Falcon, 436 Mich at 471-472 (L evin, J.). In Mays , malpractice had reduced the patient’s opportunity to surv ive from 40 to 15 percen t, so the court computed the damages by multiplying the opportunity lost (40 minus 15) by th e net pecuniary loss to determine the damages for the harm caused by the defendant. Id . Calculating the damages this way permitted the plai ntiff “to recover damages only for the reduction in the patient’s op portunity of survival.” Id . at 472. This calculation isolates the value of the injury that can be causally linked to a defendant’s negligence—the loss of an opportunity. The value of a loss-of-opportunity claim is measured by the extent of the loss; so, clearly, the injury being compensated is the loss of a particular amount of opportunity. By contrast, the measure of damages in a traditional claim for wrongful death or physical harm is, generally speaking, the value of damages attributable to the death or phys ical harm; as such, the injury being compensated is the death or physical harm. In sum, when Falcon adopted the loss-of-opportunity doctrine, it recognized that th e injury of loss of an opportunity was distin ct from the injury of suffering the associated physi cal harm—which, in that cas e, was death. However, Falcon indicated that not all losses of op portunity were actionable; rather, a

4plaintiff must suffer the loss of a substantial opportunity for a be tter result. “The cause of action accrues when harm an d damages result fro m the loss of a substantial opportunity for a better result.” Id . at 470 n 43. We concluded “that loss of a 37.5 percent opportu nity of living constitutes a loss of a substantial opportunity of avoiding physical harm,” but declined to “decide what lesser percentage would c onstitute a substantial loss of opportunity ” in other circumstances. Id . at 470. Finally, Falcon emphasized that a loss-of-opp ortunity cause of action was not exempt from the more-pro bable-than-not standard of causation. “Under this approach, the plaintiff must establish more-probable-than- not causation. He must prove, more probably than not, that th e defendant reduced the opportunity of avoiding harm.” Id . at 462. Unlike a claim for wr ongful death or physical injury, the “patient . . . need not show that it was probable, m easured as more than fifty percent, that the course of the disease and treatment would have been different.” Id . at 470 n 43. Instead, “[i]t is sufficient to show, more probably than not, that had there been a correct di agnosis, the patient woul d have had a substantial opportunity of avoiding the course of th e disease and treatment that occurred.” Id

. Therefore, while a claim for lo ss of opportunity addresses a different injury than a cause of action for the physical injury itself, it is still subject to the same standard of proof of causation. Falcon ’s enunciation of the loss-of-opportunity doc trine is significant, because it apparently provoke d the Legislature to amend MCL 600.2912a. In

51993, the Legislature amended that pr ovision by adding a second subsection, which states: In an action alleging medical ma lpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximatel y caused by the ne gligence of the defendant or defendants. In an action allegi ng medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a bett er result unless the opportunity was greater than 50%. [M CL 600.2912a(2).] The amendment was widely understood to be a direct reaction to the Falcon decision. As a majority of this Court noted, after Falcon adopted the lostopportunity doctrine, “[o]ur Le gislature immediately rejected Falcon and the lost opportunity doctrine. MC L 600.2912a(2) . . . .” Weymers v Khera , 454 Mich 639, 649; 563 NW2d 647 (1997). I agree that the amendment of MCL 600.2912a(2) was a reaction to Falcon , but I would not characterize it as a rejection of the lostopportunity doctrine entirely. It merel y established the th reshold for loss-ofopportunity claims. THE PROPER INTERPRETATION OF MCL 600.2912a(2) The Legislature’s addition of MCL 600. 2912a(2) should be read in light of the Falcon decision. This Court follows the pr inciple that when a statute uses a common-law term and there is no clear legisl ative intent to alter the common law, the term will be interpreted as having the same meaning as at common law. Ford Motor Co v City of Woodhaven, 475 Mich 425, 439 ; 716 NW2d 247 (2006). Additionally, the Legislature is presumed to be aware of judicial interpretations of existing law when passing legislation. Id . at 439-440. In this instance, the

6Legislature appears to have reacted to a p articular opinion of this Court, so that opinion’s holdings of fer considerable insight into th e Legislature’s intent. When interpreting MCL 600.2912a(2), then, it is important to keep in mind several principles established by the Falcon decision: (1) loss-o f-opportunity claims are subject to the more-probabl e-than-not standard for proving causation, (2) the “injury” in a loss-of-opportunity claim is the loss of a substantial opportunity to avoid physical harm, not the actual physical harm itself, and (3) loss of a 37.5 percent opportunity of living constitutes a compensable loss of a substantial opportunity to avoid physical harm. Chief Justice Taylor interprets MCL 600.2912a(2) without consideri ng these principles from Falcon , and thus comes to the mistaken conclusion that the statute is unenforceable and inconsistent with the lost-opportunity doctrine. The first sentence of MCL 600.2912 a(2) assigns a medical-malpractice plaintiff “the burden of proving that he or she suffered an injury that more probably than not was proxi mately caused by the neglig ence of the defendant or defendants.” Chief Justice Taylor conc ludes that this se ntence precludes lost

opportunity claims b ecause those claims only arise when a plaintiff cannot prove that a defendant’s negligence more probably than not caused the pl aintiff’s injury.
Ante at 12. But this overlooks two principles gleaned from Falcon that the Legislature would ha ve been aware of while drafting this sentence: loss-ofopportunity claims are subject to the mo re-probable-than-not st andard of causation and, in such claims, the “injury” is the lo ss of an opport unity to avoid the physical

7harm, not the associated ph ysical harm itself. When the first sentence of MCL 600.2912a(2) is inte rpreted according to Falcon ’s articulation, its causation requirement does not preclude claims for loss of opportunity. It simply codifies the causation requirement that applies to claims for the injury of suffering physical harm as well as claims for th e injury of the loss of an op portunity to a void physical harm. Just like Falcon , MCL 600.2912a(2) requires th at a plaintiff asserting a cause of action for loss of opportunity prove that the defendant more probably than not caused the loss of an opportunity to survive or the lo ss of an opportunity to achieve a better result. The first sentence of MCL 600.2912a(2) should also be interpreted in accordance with Falcon ’s understanding of the wo rd “injury.” In medicalmalpractice cases, the underlying injury is quite often death or some physical harm. But Falcon identified a distinct injury in medical-malpractice cases—the loss of a substantial opport unity to avoid physical harm. This is significant, because a lost-opportunity plaintiff, by d efinition, cannot prove that a defendant’s malpractice more probably than not caused the patient to suffer physical harm or death. Take the example of a patient who before treatment had a 40 percent chance of survival as the res ult of a preexisting condition. If that patient died after being negligently treated by a physician, the plaintiff w ould not be ab le to prove that the physician’s malpractice more proba bly than not (50 pe rcent or greater) caused the patient’s death. There was a 60 percent chance that the patient would have died regardless of the malpractice, as a result of the p reexisting condition.

8But the plaintiff might be able to show th at the physician’s malpractice more probably than not caused the patient to lose up to a 40 percent chance of avoiding death. 2 The first sentence of MCL 600.2912a(2) simply places this burden to prove causation on a plaintiff, whether the alleged injury is the physical harm itself or the loss of an opportunity to avoid harm. Moreover, the explicit reco gnition of the loss-of-oppo rtunity doctrine in the second sentence of MCL 600.2912a(2) supports the conclusion that the Legislature did not intend to preclude lost-opportunity cl aims by adopting the more-probable-than-not standard of causation. The second sentence states: “In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportuni ty to achieve a be tter result unless the opportunity was greater than 50%.” MCL 600.2912a(2). If the Legislature had intended to reject the lost-o pportunity doctrine, it would have entirely prohibited plaintiffs from recovering for a loss of an opportunity. In stead, it permitted recovery for loss of an opportunity under certai n circumstances—if the

2 Chief Justice Taylor’s concern that redefining “injury” in this way would permit recovery for a “lost chance alone, without proof of physical injury” is unfounded. Ante at 12. By definition, one does not suffer the loss of an opportunity to surviv e unless death occurs. Otherwis e, there would ha ve been no opportunity lost. Similarly, a claim for the loss of an opportunity to achieve a better result does not arise unless a plaintiff suffered a verifiable loss . The loss is the injury that the lost-opportunity doc trine recognizes. Typically, proof of an actionable loss will involve actual physi cal harm suffered by the plaintiff. Defining injury as such w ill not allow a plaintiff to recover for a pot ential future injury.

9opportunity was greater than 50 percent. This senten ce merely sets the threshold for invoking the loss-of-oppo rtunity doctrine. It requires that a plaintiff’s premalpractice opportunity to survive or achieve a bett er result was greater than 50 percent. 3
The conclusion that the first and seco nd sentences of MCL 600.2912a(2) do not conflict is also related to the proper interpretation of the second sentence. Chief Justice Taylor identifies an ambi guity in the second sentence that, he contends, can only be resolved by ad ding words or by redefining the term “injury.” Ante at 16. 4 The Court of Appeals also identified this ambiguity in Fulton v William Beaumont Hosp , 253 Mich App 70; 65 5 NW2d 569 (2002). Fulton described the ambiguity: the second sentence of the statute requires a plaintiff to show either that the premalpractice opportunity was greater than 50 percent or that th e opportunity was reduced by more than 50 percent. Id . at 77. In short, the ambiguous term is the statute’s second use of the wo rd “opportunity.” I disagree with the conclusion that no ne of the multiple, contradictory

3 For example, a patient who had a premalpractice opportunity to survive of 60 percent, and whose chance of survival was reduced to 20 percent because of malpractice, would have a cause of action fo r loss of opportunity to survive if he ultimately died. The plain tiff in that case would not have a wrongful-death action because it was not more probable than not that the negligence caused the patient’s death. But he could have a cause of action for the lo ss of a 40 percent opportunity to survive, because the patient’s premalpractice oppor tunity to survive was greater than the threshol d of 50 percent.

4 I disagree with the premis e that a statute is ambigu ous only if it is equally susceptible to more than one meaning.

10interpretations can be shown to be the correct construc tion of legislative intent. While reasonable minds could differ with respect to th e meaning of this statute, the correct interpretation can be discerned by conventional means of construction. The proper interpretation of the second use of the word “opportunity” in MCL 600.2912a(2) can be resolved by simply considering the entire text of the sentence. The first time “opportunity” is used, the statute sp eaks of recovery for “loss of an opportun ity to survive.” MC L 600.2912a(2). By using this term from Falcon without modification, the Legislature adopted Falcon ’s articulation of the lost-opportunity cause of ac tion. And we know from Falcon that by the very nature of a lost-opportunity cl aim, the opportunity alleged to have been lost must be the premalpractice opportunity. The word “opportun ity” in the phrase “loss of an opportunity” must refer to the premalpractice opportun ity because th at is the opportunity that is lost in some measure and, thus, creates a claim. The second time “opportunity” is used in the sentence, it is not preceded by the phrase “loss of an.” But the statut e’s replication of the term “opportunity” within the same sentence clearly indicates th at they relate to each other and are to be construed identically. Thus, the term “opportunity” in isol ation has the same meaning that it does within the phrase “l oss of an opportun ity to survive.” Accordingly, a plaintiff cannot recover for the loss of an opportunity unless the opportunity—the premalprac tice opportunity that was allegedly lost in some measure—was greater than 50 percent. Thus, this interp retation does not require

11that any words be added to the sentence; it merely requires th e word “o pportunity” to be construed consistently within the same sentence. The other proposed meaning of the statute’s second use of the word “opportunity” would conflict with the senten ce’s first use of the word. Instead of reading the phrase “unless the opportunity was greater than 50%” as written, this interpretation would infer the words “loss of” in front of “opportunity.” Justice Markman advocates this int erpretation. He conclude s that “the opportunity” clearly refers back to the “loss of an op portunity,” and thus the sentence means that the loss of the op portunity must be great er than 50 percent. Post at 12. But this interpretation conflates the phrase “l oss of an opportun ity” with the phrase “the opportunity.” It assumes that the Legislat ure used the phrase “the opportunity” as a shorthand reference for “los s of an opportunity ” and requires the reader to infer the phrase “l oss of” before the seco nd use of the word “opportunity.” This interpretation is less plausible than my interp retation, which gives the term “opportunity” the same meaning regardless of whether it appears alone or within the phrase “loss of an opportunity,” and does not require reading language into the statute. 5 In sum, I cannot concl ude that this competing

5 Justice Markman denies that he reads words into the statute. Post at 12 n 10. But it is telling that Justice Markma n has solved the inference problem present in his interpretation by repeatedly misquoti ng the statute. For example, he reports that MCL 600.2912a(2) “state s that the ‘lost opportunity ’ must be greater than 50 percent . . . .” Post at 12 n 10. He repeats that MCL 600.2912a(2) “requires that the ‘lost opportunity’ be ‘greater than 50%’” in anoth er portion of his opinion, (continued...)

12interpretation is correct when it poses lingui stic problems that are not found in the other interpretation. Moreover, interpreting the word “o pportunity” to mean premalpractice opportunity comports with th e purpose of the statute a nd the context in which it was adopted, while the other interpretation does not. Falcon adopted the loss-of

opportunity doctrine to pr ovide a cause of action to plaintiffs who could not establish causation for phys ical harm, but could estab lish causation for the loss of a substantial opportunity to avoid that physical harm. MCL 600.2912a(2) cannot limit recovery for the loss of an opportunity to cases in which the loss was greater than 50 percent, because a ny plaintiff who satisfied th at condition would have a traditional medical-malpractice claim for the death or phys ical harm itself. 6 A

(...continued) post at 13, and later states that MCL 600.2912a(2) “onl y allows a plaintiff to recover for a ‘loss of an opportun ity’ that was ‘greater than 50%,’” post at 15. The selective positioning of these phrases artfully suggests that the statute actually says that the lost opportunity must be g reater than 50 percent. Bu t, in fact, the statute simply requires that “ the opportunity was greater than 50 percent.” MCL 600.2912a(2) (emphasis added). The fact th at Justice Markman is compelled to recharacterize the text of the statute in th is way strongly suggests that his interpretation infers the word “lost” before the word “opportunity.”

6 Justice Markman asserts that I am incorrect on this point because, for example, plaintiff in this case can show th at he lost an 80 percent opport unity to achieve a better result (no amputation) , but “cannot prove that defendant’s malpractice caused the amputation, as he wo uld be required to do in a traditional medical-malpractice action . . . because th ere was at least a 1 percent chance that plaintiff would have suffered an amputation even wi th proper treatment.” Post at 33. From this argument, it would appe ar that Justice Markman believes that medical-malpractice actions require a plai ntiff to prove that a defendant’s negligence was a 100 percent cause of his injury. However, we have explained (continued...)

13plaintiff who can show that malpractice caused the loss of a more than 50 percent opportunity to avoid death or physical harm can meet the more-probable-than-not standard of causation for the associated death or physical harm. This interpretation would permit a loss-of-opportunity claim when a plaintiff’s chance for survival was reduced from 80 percent to 20 percen t, but not when the plaintiff’s chance for surv ival was reduced from 80 p ercent to 40 percent. It would not make sense to permit a plainti ff whose chance of survival was reduced from 80 percent to 20 percent to bring a lo st-opportunity clai m, because that plaintiff could show that the negligence mo re probably than not caused the death, thus establishing a traditional wrongful-d eath claim. Meanwhile, the statute would

(...continued) that the element of “cause in fact” in ne gligence does not require a plaintiff to “prove that an act or omission was the sole catalyst for his injuries . . . .” Craig v Oakwood Hosp , 471 Mich 67, 87; 684 NW2d 296 (2004). Rather, a plaintiff “must introduce evidence perm itting the jury to conclude that the act or omission was a cause.” Id . This is consonant with the cas elaw of other jurisdictions, and holds true regardless of whether a plain tiff’s preexisting cond ition was a possible cause of his injury. In medical-malpractice cases, the courts have uniformly adopted the position that proof of causation does not requi re that it be shown that the patient was certain to have recover ed or improved with sound medical care , and it has often been said that the pl aintiff may sustain the burden of establishing proximate causation with evidence that it was probable, or more likely than not, that the pa tient would have been helped by proper treatment. [Anno: Medical malpractice : “Loss of chance” causality, 54 ALR4th 10, 18 (emphasis added).] The Legislature codified this position in MCL 600.2912a(2), which gives the plaintiff the burden of proving that the defendant’s negligence more probably than not proximately caused his injury.

14deny recovery for the loss of an opportunity to a plaint iff who suffered death, but could only show that the ma lpractice reduced his opport unity to survive from 80 percent to 40 percent. The plai ntiff in that case would be left with no cause of action at all; he coul d not meet the more-probable-tha n-not standard of causation for the injury of death, and he w ould be precluded fro m bringing a lost

opportunity claim because he lost only 40 percent of his opportunity. This cannot be the result intended by the Legislature. This interpretation of the statute would prevent Falcon ’s intended class of plaintiffs fro m bringing a loss-of-opportunity claim, while still recognizing a cause of action for loss of opportunity. It would provide a class of plaintiffs who alrea dy have a traditional medical-malpractice cause of action with an additional cause of action for loss of opportunity. Such a result is illogical in light of one signifi cant purpose of the statute—to codify the loss-of-opportunity doc trine recognized in Falcon

. Finally, interpreting the statute as referring to the premalpractice opportunity is consistent with the history of the am endment. That is, MCL 600.2912a(2) is understood to be a legislative reaction to Falcon . MCL 600.2912a(2) retained the loss- of-opportunity doctrine, so it could not have been intended to entirely preclude the cl ass of plaintiffs recognized by Falcon from bringing such claims; such a drastic st ep would be entirely at odds with the rationale of the loss-of-oppo rtunity doctrine. Rather, MCL 600.2912a(2) retained the doctrine, but set the thres hold at 50 percent, so that only plaintiffs who had a greater than 50 percen t premalpractice opportunity to survive or achieve a better

15result could bring a claim. This interpret ation is the only reas onable explanation for the Legislature’s action—it aligns with the Legislature’s apparent intent to both endorse the doctrine and place a limit on it. In su m, I concur with Chief Justice Taylor that plaintiff in this case proved a traditional medical-malpractice claim based on his physical injuries and that the jury’s verd ict should be upheld. 7 Plaintiff did not assert, or need to res ort to, a claim for loss of opportunity. However, I disagree that the sec ond sentence of MCL 600.2912a(2) is substantially incomprehensibl e. The correct interpretati on of the second sentence can be discerned by an examination of the text of th e statute. The result of this analysis is confirmed by th e history of both the loss- of-opportunity doctrine and

7 There was adequate evid ence that the doctor’s malpractice proximately caused plaintiff’s injuries. It is undisputed that plaintiff’s aneurysm ruptured and that he suffered amputation of his legs as a result. The jury heard testimony that, had plaintiff been diagnosed earlier and undergone elective surgery, his chance of having complete success with no complications would have been approximately 95 percent, his chance of deat h would have been 1 to 5 percent, and his chance of amputation would have been 1 percent. Given the ru pture, his approximate chance of complete success with no complications dropped to 5 to 10 percent, his chance of death became 60 to 90 percent, a nd his chance of surviving, but suffering amputation, became 5 percent. When a patient’s ch ance of complete success drops from 95 percent to le ss than 10 percent because of a doctor’s malpractice, and the patient suffers one of the natural complications, the jury’s conclusion that the malpractice proximately cause d that injury is warranted. If the jury in this case could only have considered the specific risk of amputa tion, as Justice Markman suggests, post at 35 n 25, plaintiff wo uld essentially be penalized for managing to survive an event that few others do. While the risks associat ed with harms that were not actually suffered by a plaintiff are not relevant to the extent of a plaintiff’s lost opport unity, potential risks stem ming from a physician’s malpractice may be relevant to the jury ’s determination of whether malpractice caused a plaintiff to suffer a particular harm rather than achieve a good result.

16the statute. There is no internal conflict w ithin the statute. Th e loss-of-opportunity doctrine is entirely consistent with th e more-probable-than-not causation standard, so there is no conflict between the fi rst and second sentences of MCL 600.2912a(2). RESPONSE TO JUSTICE MARKMAN Justice Markman’s appro ach to interpreting MCL 600.2912a(2) is grounded in several faulty premises. The first is that traditi onal medical-malpractice cases require that there be “no question that the proper treatment woul d have resulted in a good outcome,” because otherwise “ it cannot be proved that the improper treatment caused the bad outcome.” Post at 36. This prop osition would preclude plaintiffs with preexisting conditi ons that might ha ve contributed slightly to their injuries from bringing medical-malpracti ce claims. It woul d also preclude medical-malpractice claims from arising in situations in which proper medical treatment does not always succeed. 8 This proposition cannot be correct. Plaintiffs

8 Justice Markman cites no authority fo r the proposition that a plaintiff may only recover for traditional medical malp ractice if proper treatment would not have resulted in the bad res ult suffered by the plaintiff. If true, that principle would foreclose virtually all traditional medical-malpractice cas es. With almost any medical procedure, there is a statis tical probability that a patient will experience a bad result, even if the proced ure is performed properly. As just one example, the Food and Drug Administra tion (FDA) counsels patients considering LASIK eye surgery that while “[m]ost patie nts are very pleased with the results of their refractive surgery[,] . . . like any other medical procedure, there are risks involved.” Food and Drug Administration, Center for Devices and Radiological Health <http://www.f da.gov/cdrh/LASIK/risks.htm> (accessed July 2, 2008). The FDA advises that the risks of LASIK su rgery include loss of vision, debilitating (continued...)

17alleging medical malpractice, regardle ss of whether they have preexisting conditions, are not required to prove that a defendant was a 100 percent cause of their injuries; they must si mply prove more-proba ble-than-not causati on. After all, traditional medical-malpractice claims are subject to the same principles of causation as other negligence claims. As Pr osser & Keeton, Torts (5th ed), § 41, p 270, notes, “[w]hen a child is drowned in a swimming pool, no one can say with certainty that a lifeguard would have sa ved the child; but th e experience of the community permits the conclusion that the absence of th e guard played a significant part in the drow ning.” There is no reason to treat medical-malpractice claims any differently in this reg ard. For example, even if an expert testified that a properly performed medical procedure will avoi d a bad result 99 percent of the time, a jury could still conc lude that the physician’s negligence was more probably than not the cause of the bad result. See post at 36. Second, Justice Markman’s approach sugg ests that the factor distinguishing a medical-malpractice claim from a lost-opp ortunity claim is whether there is another possible cause of an injury, such as a preexisting condition. He states:

(...continued) visual symptoms, and se vere dry eye syndrome. Id . In sum, “[t]here are never any guarantees in medicine.” Id . Within the realm of ey e surgery alone, Justice Markman’s rule would mean that any LASIK patient wh o experienced a loss of vision, debilitating visual symptoms, or severe dry ey e syndrome would not be able to bring a traditional medical-malp ractice claim simply because there was a chance, however slight, that those conditions would have occurred as a result of the properly performed LASIK procedure itself.

18. . . I conclude that a “lost oppo rtunity” case is one in which it is at least possible that the bad ou tcome would have occurred even if the patient had received pr oper treatment. By contrast, if there is no question that the proper treatment would have resulted in a good outcome, then the patient w ho suffered a bad outcome has a traditional medical-malpractice action. [ Post at 2.] But this definition of a lo st-opportunity case is cont rary to both the doctrine as described by Falcon and the doctrine as adopte d by the Legislature in MCL 600.2912a(2). The distin ction between a lost-opport unity case and a medical

malpractice case does not pivot on a pl aintiff’s preexistin g condition or the absolute certainty that proper medical t reatment would have prevented the harm the plaintiff suffered. Rather, the determining factor is whether the plaintiff can prove, more probably than no t, that the defendant’s negligence caused physical harm. If a plaintiff can pr ove more-probable-than-not ca usation for physical harm, then he has a medical-malp ractice claim for that injury. If not, he may have a claim for loss of opportunity to avoid harm, if he can prove that the defendant’s negligence caused that injury: the loss of an opportunity to avoid harm. Of course, many lost-opportunity cases ari se when a plaintiff has a preexisting condition that could have caused phys ical harm without ne gligence, but this is a correlation, not a cause. The fact that a plaintiff has a preexisting condition does not, by itself, cause a claim to be a lost-opportunity claim rather than a medical-malpractice claim. Similarly, the exis tence of other possible cause s for a bad result does not determine the cause of action available to that plaintiff. Specifically, the possibility that a patient’s di sease or injury itself may have caused the bad result

19does not mean that the patient cannot bring a traditional medical-malpractice claim. 9 Rather, as Falcon explained, traditional me dical-malpractice claims require a plaintiff to show that the negligen ce more probably th an not caused physical harm. Falcon , 436 Mich at 449. The Legislature adopted Falcon ’s term “loss of opportunity” as well as the trad itional more-probable-tha n-not standard of causation. Accordingly, th ere is no reason to conclude that the distinguishing feature between medical-malpractice claims and lost-opportunity claims is the existence of other possible causes of the harm, as Justice Markman appears to posit. These faulty suppositions are signifi cant, because they lead Justice Markman to endorse Dr. Roy Waddell’ s formula for calculating loss of opportunity. Waddell’s formula purports to calculate a plaintiff’s lost opportunity to survive by determining “what percen t of patients who would die without treatment” could otherwise “be saved with treatment.” 10 If proper treatment creates a greater than 50 percen t chance of surviv al within the set of patients who

9 Justice Markman offers the hypothetical treatment of a broken leg to show that his theory of traditi onal medical-malpractice clai ms is consistent with traditional causation principles. But he in dicates just the oppo site, by precluding a medical-malpractice claim unless admini stering proper treat ment would never produce permanent damage. Assuming that a patient was treated, this requirement eliminates the possibility th at another force (such as th e natural progression of the broken leg itself), rather than negligence, caused the perm anent damage to the leg.

10 Waddell, A doctor’s view of “ opportunity to survive ”: Fulton’s assumptions and math are wrong , 86 Mich B J 32, 33 (March 2007).

20would have died without treatment, then a cause of action exis ts. But Waddell’s formula is flawed for several reasons. It operates from a mistaken understanding of a lost-opportunity case. The formula identifies plaintiffs who can show that negligence was more than a 50 percent cause of their d eath or physical harm. But that set of plaintiffs can, by definition, maintain a traditional cause of action for medical malpractice for the inju ry of death or physical h arm itself. Accordingly, his formula would preclude true lost-oppo rtunity plaintiffs from bringing claims and provide medical-malpractic e claimants with lost-opp ortunity causes of action for which they have no ne ed. Moreover, aside from its theoretical problems, the Waddell formula is blatantly incons istent with the language of MCL 600.2912a(2). 11 It is inconceivable that Jus tice Markman can read the sentence “In an action alleging medical malpractice, the plaintiff canno t recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the

11 Justice Markman opines that in the matter of MCL 600.2912a(2), “there is quite likely some disconnection between what the Legislature may have had in mind and what it actually enacted.” Post at 15-16 n 15. Yet, despite appearing to believe that the Legislature’s intent may not correlate to the words of MCL 600.2912a(2), Justice Markman is neverthe less convinced that he can discern the Legislature’s intent from the statutory la nguage. Further, he argues that the Waddell formula is consistent with the statutory language, even while conceding that the Legislature may not have had th e concept that was later embodied in Waddell’s formula specifical ly in mind when it enacted MCL 600.2912a(2). think it is more than merely po ssible that the Legislature did not have this concept in mind when it crafted this law; notably, Waddell’s article was not even published until 2007, long after the Legislature ame nded MCL 600.2912a(2) in 1993.

21 Iopportunity was greater than 50%” and conclude that it should be t ranslated into this formula: (Premalpractice chance) – (Postmalpractice chance) x 100 100 - (Postmalpractice chance) This formula has no basis in the language of MCL 600.2912a(2) or Falcon . MCL 600.2912a(2) simply requires that the opportunity wa s greater than 50 percent. Again, it is noteworthy that my interpretation does no t require adding any inferred language to the statute. A plaintiff’s p remalpractice opportunity to survive or to achieve a better result must simply have been “greater th an 50%.” The approach taken by Justice Markman and Dr. Waddell requires this sentence to be rewritten to state that the plaintiff’s opportunity to survive or to achieve a better result must have been decreased by 50 percent. See post at 12-14. Finally, the Waddell approach leads to such anomalous results that it cannot possibly reflect the intenti on of the Legislature. The Legislature crafted MCL 600.2912a(2) as a reaction to Falcon , which permitted a lost-o pportunity cause of action when the plaintiff’s p remalpractice opportunity to survive was 37. 5 percent. As Justice Markman acknowledges, if a plaintiff dropped fr om a 99.99 percent premalpractice chance of su rvival to a 99.97 percent postmalpractice chance of survival, the Waddell formula would concl ude that the plain tiff had experienced an actionable 66.67 percent loss of opportunity. On the other hand, recovery would be barred if a plai ntiff dropped from a 60 percent premalpractice chance of survival to a 40 percent ch ance of survival, because the plaintiff would have

22experienced only a 33 percen t loss of opportun ity. It is unlikely that the Legislature intended to comp ensate a loss of just 0.02 percentage points, while simultaneously precluding a loss of 20 percentage points. It is more likely that the Legislature disagreed with the thres hold limit for lost-opportunity cases established by Falcon , 37.5 percent, and amended MC L 600.2912a(2) to raise the threshold to 50 percent.
RESPONSE TO CHIEF JUSTICE TAYLOR While we reach different interpreta tions of MCL 600.2912a(2), I nevertheless agree with Justice Markman that Chief Justice Taylor errs by concluding that the second sentence of the statute is incomprehensible and unenforceable. I share Justice Mark man’s objection to the unprecedented approach Chief Justice Taylor has take n in concluding that this statute is unenforceable simply because it presents a complex matter of interpretation. While the fracture of this Court on this matter certainly illustrates the difficulty of interpreting this statute, I disagree that it compels the conclusion that the statute is unenforceable. And, in fact, Chief Ju stice Taylor’s opi nion paradoxically indicates that the statute will continue to be enforced un less the Legislature amends it, because the Fulton panel’s interpretation will remain controlling law.
Ante at 20 n 14.
CONCLUSION I disagree with Chief Justice Taylor’s conclusion that th e second sentence of MCL 600.2912a(2) is in comprehensible and cannot be judicially enforced.

23Therefore, I respectfully disagree with his analysis of that provision. However, I agree that the jury’s verdict should be upheld, b ecause plaintiff has presented evidence that supports a traditi onal medical-malpractice claim.

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly

24________________ _______________ v S T A T E O F M I C H I G A N SUPREME COURT

CARL STONE and NANCY STONE, Plaintiffs-Appellees,
No. 133986 DAVID A. WILLIAMSON, M.D., JACKSON RADIOLOGY CONSULTANTS, P.C., and W. A. FOOTE MEMORIAL HOSPITAL, Defendants-Appellants.

MARKMAN, J. ( concurring in the result only ). We granted leave to appeal to a ddress the proper int erpretation of the second sentence of MCL 600 .2912a(2), which states: “In an action alleging medical malpractice, the plai ntiff cannot recover for lo ss of an opportunity to survive or an opportunity to achiev e a better result unless the opportunity was greater than 50%.” Chief Justice Taylor’s opinion concludes that this sentence is “substantially incomprehensible,” and, therefore, “unenforceable.” Ante at 2, 17, 20. Although this statutory language is by no means a model of clarity, I am in accord with Justice Cavanagh’s opinion th at the “lost opport unity” provision is enforceable. However, Jus tice Cavanagh concludes th at the “lost opportunity” provision requires only that the patient ’s premalpractice ch ance to survive or obtain a better result be greater than 50 percen t. Finally, he concludes that this isnot even a “lost opportunity ” case. In these respects, I also disagree with his opinion. Instead, I conclude that a “lost oppo rtunity” case is one in which it is at least possible that the bad outcome would have occurred even if the patient had received proper treatment. By contrast, if there is no questi on that the proper treatment would have resulted in a g ood outcome, then the patient who has suffered a bad outcome has a traditional medi cal-malpractice action. In order for a traditional medical-malpractice plaintiff to p revail, he or she mu st prove that the bad outcome was more probably than not ca used by the defenda nt’s malpractice. In order for a “lost opportunity” plaintiff to prevail, he or she must prove that the “lost opportunity” to achieve a better result was more probably than not caused by the defendant’s malpractice and that the “lost opportunity” was greater than 50 percent. In order to det ermine whether the “lost oppo rtunity” was greater than 50 percent, the postmalpractice chance of obtaini ng a better result must be subtracted from the premalpractice ch ance, the postmalpractice chance must then be subtracted from 100, the former number must be divided by th e latter number, and then this quotient must be multiplied by 100 to obtain a percentage. If this percentage is greater than 50, the plaintiff may be able to prevail; if this percentage is 50 or less, then the plaintiff cannot prevail. Because it is possible that the bad outcome in the instant case, i.e., amputation, would ha ve occurred even if plaintiff had received proper treatment, given that there was some chance of amputatio n in the latter circumstance, this is a

2“lost opportunity” action. Because plaintiff’s “lost opportun ity” was greater than 50 percent, 1 I would affirm the result reached by the Court of Appeals.
I. “LOST OPPORTUNITY”
A. COMMON LAW This Court first recognized a “lost opportunity” claim in Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990). In Falcon, the plaintiff’s expert witness testified that had th e defendant physician not been negligent, the plaintiff’s decedent would have had a 37.5 percent chance of surviving. Before Falcon, plaintiffs claiming medical malpractice were required to prove that the malpractice in fact caused the patient’s physical harm. Falcon, 436 Mich at 448-449 (Levin, J.). Thus, in a wrongful-death case grou nded in medical malpractice, the plaintiff was required to prove that the malpractice in fact caused the patient’s death. In Falcon, the defendants argued that because th e patient’s premalpractice chance of survival was only 37.5 percent, the plaintiff could not prove that the malpractice caused the patient’s death; the patient might very well have died even with proper

treatment. Although this Court agreed with the defendants that the plaintiff could not prove that the malpractice cau sed the patient’s death, it nonetheless held that the plaintiff could prove that the malpractice cau sed the patient to suffer the loss of a

1 99 - 95 x 100 = 80%

100 - 95

337.5 percent opportunity to survive. Id. at 460. “In reducing [the patient’s] opportunity of living . . ., her physicia n caused her harm, although it cannot be said . . . that he caused her death.” Id. “We thus see the injury resulting from medical malpractice as not only, or necessarily, phys ical harm, but also as including the loss of opportunity of avoiding physi cal harm” because a “patient goes to a physician precisely to im prove his opportun ities of avoiding, ameliorating, or reducing ph ysical harm . . . .” Id. at 461. Thus, we recognized a “loss of an opportunity fo r a more favorable result, as distinguished from the unfavorable result [itself] , as compensable in medical malpractice actions.” Id. 2 “Under this approach, damages are recoverable for the loss of opportunity although the opportun ity lost was less than even, and thus it is not more probable

2 Justice Archer signed the lead opini on written by Justice Levin, and Justice Boyle wrote a concu rring opinion, which Jus tice Cavanagh joined, that stated: I concur in the recognition of “l ost opportunity to survive” as injury for which tort law should a llow recovery in proportion to the extent of the lost chance of survival, ante , [436 Mich at] 466, provided that the negligence of the defendant more probably than not caused the loss of opportunity . However, I would emphasize that the Court today is called upon to decide the viability of a claim for “lost opportunity” onl y where the ultimate harm to the victim is death. Thus, any language in th e lead opinion suggesting that a similar cause of action might lie fo r a lost opportunity of avoiding lesser physical harm is dicta. [ Falcon, 436 Mich at 472-473 (Boyle, J., concurring).]

4than not that the unfavorable result wo uld or could have been avoided.” Id. at 461-462. 3 However, even “[u]nder this approach, the plain tiff must establish more

probable-than-not causation.” Id. at 462. That is, the plaintiff “must prove, more probably than not, that the defendant reduced the opport unity of avoiding harm.” Id. Therefore, in both a traditional medi cal-malpractice action, in which the alleged injury is the physical injury itself, and a “lost opportunity” acti on, in which the alleged injury is the “lost opportunity ” to achieve a better result, the plaintiff must prove that it is mo re probable than not that the defendant’s malpractice caused the injury. In ot her words, the difference be tween these two causes of

3 “[C]onsider the case in which a doctor neglig ently fails to diagnose a patient’s cancerous condition un til it has become inoperable. Assume further that ev en with a timely diagnos is the patient would have had only a 30% chance of recovering from the disease and surviving over the long term. There are two wa ys of handling such a case. Under the traditional appro ach, this loss of a not-better-than

even chance of recovering from the cancer would not be compensable because it did not app ear more likely [than] not that the patient would have survived with proper care. . . . A more rational approach, however, woul d allow recovery for th e loss of the chance of cure even though th e chance was not better th an even. . . . While the plaintiff here could not prove by a preponderance of the evidence that he was denied a cure by the defendant’s negligence, he could show by a preponderan ce that he was deprived of a 30% chance of a cure.” [ Falcon, 436 Mich at 462 n 26, quoting King, Causation, valuation, and chance in personal injury torts invo lving preexisting conditions and future consequences, 90 Yale L J 1353, 1363-1364 (1981).]

5action is not the standard of proof for causation, but the nature of the alleged injury. This Court also held that the “lost opportun ity” must be a “substantial” lost opportunity. Id. at 470. However, this Court di d not define the parameters of a “substantial” lost opportunity other than to say that the “lo ss of a 37.5 percent opportunity of living constitu tes a loss of a substantial opportunity of avoiding physical harm.” Id. 4 This Court explained that a “37.5 percent opportunity of living is hardly the kind of opportunity that any of us would willi ngly allow our health care providers to ignore.” Id. at 460. 5 Finally, this Court held that “recovery should be allowed ‘ only for the lost chance of survival.’” Id. at 471 (citation omitted) (emphasi s in original). That is, the “‘proper computation of damages would limit the damages recoverable to only that amount of reduced chance of rec overy actually caused by the physician’s negligent conduct.’” Id. at 472 n 47 (citation omitted). Therefore, we concluded that if the jury w ere to find that the physician’ s malpractice more probably than

4 This Court expressly stated: “We need not now deci de what lesser percentage would constitute a substa ntial loss of opportunity.” Falcon, 436 Mich at 470 (Levin, J.).

5 In Falcon, the patient’s premalpractice chance of survival was 37.5 percent. The Court did not indicate what the patient’s postmalpractice chance of survival was. It appears that the Co urt may simply have assumed, erroneously, that the patient’s postmalpractice chance of survival was zero percent, given that the patient died. However, because so mebody dies does not mean that the person had a zero percent ch ance of survival.

6not had caused the patient to lose a 37. 5 percent opportunity to survive, “37.5 percent times the damages recoverable for wr ongful death would be an appropriate measure of damages.” Id. at 471. 6
In Weymers v Khera , 454 Mich 639, 642; 563 NW 2d 647 (1997), this Court refused to “recognize a cause of action for the loss of an opportunity to avoid physical harm less than death.” 7 Although Weymers did not overrule Falcon, it

6 As Professor King has explained: A better method of valuati on would measure a compensable chance as the percentage probab ility by which the defendant’s tortious conduct diminished the lik elihood of achievi ng some more favorable outcome. . . . To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient’s condition, but that the patient would have had only a 40% chance of survival even with a tim ely diagnosis and proper care. Regardless of wheth er it could be said that the defendant caused the d ecedent’s death, he caused the loss of a chance, and that chance-interest shou ld be complete ly redressed in its own right. Under the proposed rule, the plaintiff’s compensation for the loss of the vic tim’s chance of surviv ing the heart attack would be 40% of the co mpensable value of the victim’s life had he survived . . . . [King, 90 Yale L J at 1382.]

7 Although Weymers was decided after the Legislat ure enacted the statutory provision at issue in this case, the Co urt applied the common law rather than the statute because the alleged negligence occurred before the statute was enacted. It is also worth mentioning that Weymers refused to recognize a common-law claim for a “lost opportunity” to avoid physical h arm less than death, although the statute expressly allows those claims. Finally, Weymers stated that “[o]ur Legislature immediately rejected Falcon and the lost opportu nity doctrine.” Weymers, 454 Mich at 649. For the reasons discussed lat er, I do not believe th at this is entirely accurate.

7clearly disagreed with Falcon 8 and “refuse[d] to extend Falcon. ” Id. at 649. In Weymers, the plaintiff’s expert testified that “if defendants ha d given plaintiff proper care she would have had a thirty to forty p ercent chance of retaining the functioning of her kidneys.” Id. at 644. However, the plaintiff did not receive proper care and her kidneys to tally failed, requiring her to undergo a kidney transplant. Because the pl aintiff’s premalpractice chan ce to avoid kidney failure was not greater than 50 percent, Weymers held that she could not prove that the malpractice more probably than not caused her kidney failure. The Court refused to recognize a cause of action for the plain tiff’s “lost opportunity ” to avoid kidney failure. In doing so, Weymers , in my judgment, misc haracterized the “lost opportunity” doctrine that had been developed in Falcon. Weymers stated: “The antithesis of proximate cause is the doctrin e of lost opportunity,” because the “lost opportunity doctrine allows a plaintiff to recover when the defendant’s negligence possibly, i.e., a probability of fifty percent or less, caused the plaintiff’s injury.” Id. at 648. Weymers also accused the Falcon Court of “lower[ing] the standard of causation” and “allow[ing] [a plaintiff] to recover without establishing cause in fact.” Id. at 650. Finally, Weymers stated that under the Falcon approach, “the

8 That Weymers disagreed with Falcon explains why Justice Boyle, who concurred in Falcon, only concurred in the result reached in Weymers and why Justice Cavanagh, who joined Justice Boyle’s concurrence in Falcon, dissented in Weymers . It is also interesting to note that the dissenting justice in Falcon was the authoring justice in Weymers

.

8plaintiff must show that there is a subs tantial possibility th at the defendant’s negligence caused his injury,” and, thus, a plaintiff is allowed “to recover for his injury even though it was more likely than not that he woul d have suffered the injury if the defendant ha d not been negligent.” Id. at 651. Although Weymers noted that Falcon had “defined the inju ry as the loss of opportunity to avoid the h arm, i.e., the death, rath er than the harm itself,” Weymers failed to recognize the significance of th is distinction, as shown by its very next sentence, which stated that Falcon ’s approach allows “‘a plaintiff [to] receive[] compensation despite the greater pr obability that he or she would have suffered the injury even if the physician had used due care.’” Id. at 651 n 19 (citation omitted). This is further shown by the fact that the Weymers majority believed that it would have to “scrap[] ” or “discard” causa tion in order to “recognize a cause of action for the loss of an opportunity to avoid physical harm less than death.” Id. at 653. However, as discussed earlier, Falcon did not lower the standard of causation when it adopted the “lost opportunity” doctrine. Falcon, 436 Mich at 462 (Levin, J.). Instead, it applied the same standard of causation, i.e., more probable than not, to a new type of injury, i.e., a “los t opportunity” to survive. Id. Falcon specifically held that a plaintiff br inging a “lost opportunity” claim “must prove, more probably than not, that th e defendant reduced the opportunity of avoiding harm.” Id. Therefore, Weymers erred when it described the “lost opportunity” doctrine developed in Falcon as lowering the sta ndard of causation.

9B. STATUTORY PROVISION In 1993, th ree years after Falcon was decided, the Legislature enacted MCL 600.2912a(2), which provides: 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 proximatel y caused by the ne gligence of the defendant or defendants. In an action allegi ng medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a bett er result unless the opportunity was greater than 50%. Everybody agrees that this provision was enacted in response to this Court’s decision in Falcon.
In Wickens v Oakwood Healthcare Sys, 465 Mich 53, 62; 631 NW2d 686 (2001), this Court held th at “a living plaintiff may not recover for loss of an opportunity to survive on the basis of a decrease in her chances of long-term survival.” The plaintiff’s expert testified that the d efendants’ neglig ent one-year delay in diagnosing her breast cancer ha d caused plaintiff to suffer a reduction in her chances of surviving a nother 10 years. This Court relied on the first sentence of MCL 600.2912a(2), which states that a medical-malpractice 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.” (Emphasis added.) We held that this provisi on “expressly limits recovery to injuries that have already been suffered and more prob ably than not were caus ed by the defendant’s malpractice.” Wickens, 465 Mich at 60. “Thus, pl aintiff can only recover for a

10present injury, not for a pot ential future injury.” Id. 9 Because the plaintiff in Wickens survived, she had not su ffered a loss of an opport unity to survive. Id. That is, a person who surv ives cannot be said to have suffered a loss of an opportunity to surv ive. A person does not suffer a loss of an opportunity to survive until that person ceases to surv ive. Although we he ld that the surviving plaintiff in Wickens could not bring a claim for a loss of an opportunity to survive, this Court did hold that the plaintiff’s claims that the delayed diagnosis resulted in the “need for more invasive medical trea tments, emotional trauma, and pain and suffering” could proc eed because she had already suffered those injuries. Id. at 61.
In Fulton v William Beaumont Hosp, 253 Mich App 70, 77-78; 655 NW2d 569 (2002), the Court of App eals described the issue as, whether the second sentence of [MCL 600.2912a(2)] requires a plaintiff in order to rec over for loss of an oppo rtunity to survive to show only that the in itial opportunity to survive before the alleged malpractice was greater than fifty percen t, as argued by plaintiff, or, instead, that the opportunity to survive was re duced by greater than fifty percent because of the alle ged malpractice, as argued by defendants. The Court held that the language “the opportunity” was ambiguous, because it could be referring to the “initial opportunity ” or it could be referring to the “loss of

9 This statutory requirement is consiste nt with the common law. See, e.g., Henry v Dow Chem Co , 473 Mich 63, 75-76; 701 NW 2d 684 (2005) (holding that “a plaintiff must demonstrate a present physical in jury to person or property” in order to sustain a negligence claim).

11opportunity.” Id. at 80. However, because th e Court believed that “MCL 600.2912a(2) was enacted to codify and increase the requirements [set forth in Falcon ] for what constitutes a ‘subs tantial loss of opportunity,’” id. at 82, quoting Falcon, 436 Mich at 470, and because Falcon “did not focus on the initial opportunity to surv ive, but focused on whether the decrease in the decedent’s opportunity to survive was substantial,” Fulton, 253 Mich App at 81, the Court chose the latter interpretation, id. at 83. That is, the Court held that the “lost opportunity,” not just the initial oppor tunity, must “exceed 50 percent.” Id. I agree with this. The second senten ce of MCL 600.2912a(2) reads: “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%.” (Emphasis added.) This sentence first refers to the “loss of an o pportunity” and then to “the oppor tunity.” In my judgment, the language “the opportunity” clearly refers back to the “loss of an opportunity.” Therefore, the second sentence can reasonably be read to mean that the loss of the opportunity must be greater than 50 percent. In cont rast, there is no reasonable means of reading the langua ge “initial opportunity” into the sentence. Therefore, I agree with Fulton ’s conclusion that the lost opportunity, not just the initial opportunity, must be greater than 50 percent. 10

10 Contrary to Justice Cavanagh’s cont ention, I do not be lieve I am reading words into the statute by concluding that MCL 600.2912a(2), whic h states that the “lost opportunity” must be greater than 50 percent, means th at the patient’s (continued...)
12The Court of Appeals in Fulton next concluded that because the plaintiff’s premalpractice chance of su rvival was 85 percent and her postmalpractice chance of survival was 60 percent to 65 percent, her “lost opp ortunity” was 20 percent to 25 percent and, thus, because the plaintiff’s “lost oppo rtunity” was not greater than 50 percent, she could not recover und er MCL 600.2912a(2). However, Fulton did not offer any explanation as to why it merely subtra cted the postmalpractice chance from the premalpractice chance to determine the “l ost opportunity.” This might have been the correct method of determining the “lost opportunity” if MCL 600.2912a(2) required that su ch a loss be “great er than 50 percenta ge points.” However, MCL 600.2912a(2) requires that the “lost opportunity” be “greater than 50%.” There is a significant distincti on between 50 percenta ge points and 50 percent. As Dr. Roy Wadd ell, a board-certified orth opedic surgeon in Grand Rapids, has explained: “A decrease in surv ival rate from 50 p ercent to 10 percent

(...continued) opportunity to achieve a better result “must have been decreased by 50 percent.” Ante at 22. If an opportunity has been “lost,” the o pportunity has obviously “decreased.” Nor do I “misquo te[e]” the statute, as Ju stice Cavanagh asserts. Ante at 12 n 5. I am cognizant that the st atute states: “the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to ach ieve a better result unless the opportunity was greater than 50%.” MCL 600.2912a(2) (emphasis added). For the reasons already discus sed, I believe that the phrase “the opportunity” obviously refers back to “loss of an opportunity.” In contrast, I believe that Justice Cavanagh is reading word s into the statute by concluding that MCL 600.2912a(2) means that the patient’s “initial” chance of obtaining a better result must have been greater than 50 percent when the word “initial” cannot be found anywhere in the statutory provis ion. That is, while the language “ loss of an opportunity” can be found in the statute, the language “ initial opportunity” cannot be found in the statute.

13is a 40- percentage-point decrease, but it is an 80 percent decrease.” Waddell, A doctor’s view of “opportunity to survive” : Fulton’s assumptions and math are

wrong , 86 Mich B J 32, 33 (M arch 2007) (emphasis in orig inal). Similarly, a reduction in wages from $5 an hour to $1 an hour is not a 4 percent reduction in wages; rather, it is an 80 percent reductio n in wages. See amicus curiae brief on behalf of Dr. Roy W. Waddell, pp 12-13. 11 The other problem with Fulton ’s method of calculating the “lost opportunity” is that it does not differentiate between those patients who would have survived regardless of whether they received proper or improper treatment and those patients who needed the pr oper treatment in order to survive. 12 Such a differentiation is necessary because only t hose in the latter group have truly suffered a “lost opportunity” as a result of the improper treatment. That is, if a patient would have survived regardless of whether he received proper or improper treatment, the improper treatment cannot be said to have cause d him to lose an opportunity to su rvive. On the other hand, if th e patient would have survived only

11 Like the Court of Appeals in Fulton , Justice Cavanagh offers no explanation as to why he repeatedly calculates the “los t opportunity” in terms of the percentage points lost rather than the actual pe rcentage lost when MCL 600.2912a(2) clearly states that the “lost opportunity” must be “greater than 50%,” not greater than 50 percenta ge points. These statistical concepts are utterly distinct.

12 Although I repeated ly refer to a lost “opportun ity to survive,” I recognize that MCL 600.2912a(2), unlike Weymers , 454 Mich at 642, also permits a cause of action for a lost “opportunity to achieve a better result.”

14if he had received the proper t reatment, the improper treatment can be said to have caused him to lose an oppo rtunity to survive. MCL 600.2912a(2) requires us to determine whether the patient more likely than not fell into the latter category rather than the former category, because the statute only allows a plaintiff to recover for a “loss of an op portunity” that was “greater than 50%” and that was “caused by the negligence of the defendant . . . .” Dr. Waddell’s calculation does just that: (Premalpractice chance) 13 – (Postmalpractice chance) 14 100 - (Postmalpractice chance) The quotient resulting from this numerator and denomina tor is then multiplied by 100 to obtain a percentage. 15 This number must be “g reater than 50%” in order to

13 “Premalpractice chance” refe rs to the patient’s p remalpractice chance of survival or chance to achieve a better result. Waddell, 86 Mich B J at 33, refers to this as the “treated survival rate.”

14 “Postmalpractice chance” refers to th e patient’s postmalpractice chance of survival or chance to ach ieve a better result. Waddell, 86 Mich B J at 33, refers to this as the “unt reated survival rate.”

15 Dr. Waddell’s calculation may not be the only conceivable calculation for making the necessary determinati on under MCL 600.2912a(2), but, in my judgment, it constitutes a reasonable calculati on that is in accord with the language of the statute. Moreover, I am cognizan t that the Legislature may not specifically have had in mind the concept later em bodied in Dr. Waddell's formula when it enacted MCL 600.2912a(2). However, it is the actual language of a statute to which this Court must u ltimately be faithful. People v Schaefer, 473 Mich 418, 430; 703 NW2d 774 (2005) (“W hen interpreting a statute, it is the court’s duty to give effect to the intent of the Legislature as expressed in the actual language used in the statute.”). The instant case is one in which there is quite likely some disconnection between what the Legislat ure may have had in mind and what it (continued...)
15satisfy the requirement of the second sentence of MCL 600 .2912a(2). For instance, if the patient’s premalpracti ce chance to achieve a better result was 80 percent and, as a result of the defendant’s malp ractice, the patient’s postmalpractice chance is reduced to 20 percent, the patient has suffered a 75 percent loss of an op portunity to survive. 16
What the Waddell formula essentially does is test the sufficiency of the expert testimony, which is typically presen ted in the form of two statistics: the likelihood that a patient would have ha d a good outcome w ith proper treatment (the “treated survival rate”) and the like lihood that a patient would have had a (...continued) actually enacted. In the end, though, it is the written law enacted by the Legislature that this Court interprets, not the Legislature’s unstated intentions or the presumed thought processes of indi vidual members of the Legislature. Justice Cavanagh’s amazement that I can “discern the Legislature’s intent from the statutory language [of MCL 600.2912a(2)],” ante at 21 n 11, is quite remarkable, given that he pu rports to do exactly the same thing, albeit reaching a different conclusion. Indeed, seeking to di scern intent from statutory language is generally what judges do when interpreting the law. He is also determined to make light of the fact that the Legislature could not have had “in mind” when crafting MCL 600.2912a(2) “the concept th at was later embodied in Waddell’s formula . . . .” Ante at 21 n 11. Although I recognize that the Legislature “may not specifically have had in mind” the concept underlying Dr. Waddell’s formula, in essentially comparing premalpractice and postmal practice opportunities in terms of percentages rather than percentage points, this formula is an altogether logical and commonsensical way of looki ng at “loss of opportunity” claims. Nonetheless, the only conclu sion I reach in this opinion is that, whatever was in the recesses of Senator A’s or Representativ e B’s minds in the Legislature, they and their colleagues crafted a statute that is consistent with Dr. Waddell’s formula and inconsistent with Justice Cavanagh’s interpretation.

16 80 - 20 x 100 = 75%

100 - 20

16good outcome with negligent treatment (the “unt reated survival rate”). The Waddell formula allows a court analyzin g this data to de termine whether the plaintiff, when the patien t has experienced a bad out come, has created a question of material fact concerning whether pr oper treatment more lik ely than not would have made a difference. The formula doe s this by identifyi ng the universe of patients who would have had a bad outcome (the denomin ator) and the subset of those patients who could ha ve been favorably treated (the numerator). It is easiest to start with the formula’s denominator. This denominator consists of the universe of all patients who would have had a bad outcome, for whatever reason. This group includes tw o subsets of patient s: those who would have had a bad outcome b ecause they received negligen t treatment, and those who would have had a bad outc ome despite receiving proper treatment. The formula identifies this group by subtracting from 100 the percentage of patients who would have had a good outcome even without proper treatment; in other words, it subtracts the “untreated survival rate” from 100. In this way, a court can take the expert’s statistics and identify those pa tients who were not treated properly and who experienced a bad outcome. A patie nt who is the subject of a medical

malpractice action is a member of this gr oup. But we cannot determine whether the patient is a member of this group be cause he or she was denied the proper treatment or because he or she would have suffered a bad ou tcome even with proper treatment.

17One more calculation must th en be made in order to answer the dispositive question posed by the statut e: whether it is more likely than not that the patient would have benefited from proper treatme nt or, put another way, whether the “opportunity to su rvive or . . . to achieve a bett er result” was “greater than 50%.” MCL 600.2912a(2). A court has to determine what percen tage of those patients with a bad outcome (those patients in th e denominator) would have benefited from treatment. This brings us to the Wadd ell formula’s numerator. The numerator consists of those patients who would have had a bad outcome only if they had been negligently treated. It is calculated by subtrac ting the “untreated survival rate” from the “treated survival rate,” thus identifying those patients who required treatment to avoid a bad outcome. Once the numerator and de nominator have been cal culated, comparison of these two numbers by their quotient allows a court to reasonably determine whether improper treatment more likely than not made a difference in the patient’s outcome. If the number of patients who would have had a bad outcome only if they had been neglig ently treated (the numerator) co mprises more than half of the number of patients who woul d have had a bad outcome overall (the denominator), then the plaintiff has estab lished that proper treatment more likely than not would have made a difference. In other words, wh en this has been s hown, the plaintiff has created a question of material fact concerning whether th e “opportunity”-- the benefit that would have been realized by a group of patient s from the treatment that was not given to this specific patie nt-- was greater than 50 percent. Such a

18plaintiff has presented adequate expert testimony to establish a “lost opportunity” cause of action within the meaning of the statute. As Dr. Waddell has explained: [T]he intent of the law is to disallow damages unless it can be shown that proper treatment creates a better than even (“greater than 50%”) chance of survival of the patients who would have died without treatment . In other words, if appropriate treatment cannot save at least half of the patient s who otherwise would have died, then you do not have sufficient evid ence to show that the negligence made the difference in th e adverse outcome (deat h). Conversely, if good treatment can save more than half of the patients who otherwise would have died, then yo u have adequate evidence that the poor treatment or negligence wa s likely to blame for the bad outcome. This is exactly what this definition of opportunity measures. [Waddell, 86 Mich B J at 33 (emphasis in original).] MCL 600.2912a(2) only allows a plaintiff to recover for a “loss of an opportunity” that was “greater than 50%” and that was “caused by the negligence of the defendant . . . .” Use of Dr. Wadde ll’s formula, which generates the actual percentage lost rather than the number of percentage points lost, and excludes those who would have achie ved a good result regardless of the malpractice, best ensures, in my judgment, th at these statutory requirements are satisfied. That is, this calculation would impose liability, in accordance with MCL 600.2912a(2), in those instances in which the medical care received more likely than not affected whether the patie nt survived. 17

17 I acknowledge that the Waddell appr oach appears to l ead to anomalous results in those situations in which there is only a slight loss of an opportunity. For example, as defendants point out, if the p remalpractice chance of survival was 99.99 percent and the postmalpractice chance was 99.97 p ercent, the “lost (continued...) 19II. APPLICATION Plaintiff’s premalpractice chance to obtain a better result was 99 percent, and his postmalpractice chance of obtai ning a better result was 95 percent. Pursuant to the Waddell cal culation, plaintiff lost an 80 percent op portunity to achieve a better result:

99 - 95 x 100 = 80% 100 - 95 Therefore, plaintiff’s “lost opportunity” was “greater than 50%.” Accordingly, plaintiff satisfied the requirements of MCL 600.2912(a)(2). Therefore, I would affirm the result of the Co urt of Appeals judgment. 18

(...continued) opportunity” would be 66.67 percent. Possibly, this would not constitute a practical problem, because experts are not generally able to predict opportunities with this degree of precision. See, e.g., Falcon, 436 Mich at 449 n 5 (Levin, J.) (“‘Human nature being what it is, and th e difference between scientific and legal tests for “probability” often creating conf usion, for every ex pert witness who evaluates the lost chance at 49% there is another who estimates it at closer to 51%’”) (citation omitted). Nonetheless, if the Legislature wants to avoid the possibility of such an anomalous result, it could requi re, for example, that there be a threshold percentage-point loss as a result of the defe ndant’s malpractice, say 5 or 10 percentage points, in addition to the requirement of the loss being “greater than 50%.” Finally, I would emphasize that I am neither advocating for nor against the Waddell calculation as a matter of fairness or sound public policy; I simply believe that it is in accordance with the Legislature’s directions in MCL 600.2912a(2).

18 Although, for the reasons discussed above, I agree with the result reached by the Court of Appeals, I respectfully disagree with its calculation of the “lost opportunity.” In addition, I di sagree with its conclusion that all the risks to which the patient was exposed should be consid ered when determining the patient’s “lost opportunity.” Inst ead, I believe that only those risks associated with the injuries that the patient actually su ffered should be considered, si nce the whole point of a (continued...)
20III. RESPONSE TO CH IEF JUSTICE TAYLOR Chief Justice Taylor’s opinion conclu des that the second sentence of MCL 600.2912a(2) is “substantially incomprehensible,” and, therefore, “unenforceable.”
Ante at 2, 17, 20. 19 Although he does not exp ressly rely on the “void for vagueness” doctrine, he is apparently doing ju st that, because I am unaware of any other doctrine that would allow a court to conclude that a statutory provision is “unenforceable” on the basis that it is “substantially incomprehensible.” The enactments of the Legislature are, as a rule , enforceable in the c ourts of this state absent a violation of the Michigan or the United States constitutions. The “void for vagueness” doctrine d erives from the Due Process Clause. “‘It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.’” People v Howell, 396 Mich 16, 20 n 4; 238 (...continued) negligence action is to establish that th e defendant’s negligence caused a specific injury. That the negligence could possibly have caused other injuries is just not relevant. Further, only considering the ri sks associated with the injuries actually suffered is consistent with our decision in Wickens , 465 Mich at 54 , 61, in which we held that “a living person may not recover for loss of an opportunity to survive,” because “a loss of opportunity to surviv e claim only encompasses injuries already suffered . . . .” Therefore, the risk of death cannot be considered when the plaintiff did not actually die. Moreover, as discussed above, plain tiff’s recovery should have been limited to 80 percent of the damages calculated, given that plaintiff suffered the loss of an 80 percen t opportunity, not a 100 percent opportunity . However, given that it does not appear that defendants ever raised this issue, I would not remand to the trial court on this basis.

19 In similar fashion, his opinion stat es that MCL 600.2912a(2) “cannot be interpreted as written,” that it “create[s] a paradox,” and that the second sentence of the statute “impossibly conflic ts” with the first sentence. Ante at 12, 14, 16.

21NW2d 148 (1976), quoting Grayned v City of Rockford, 408 US 104, 108; 92 S Ct 2294; 33 L Ed 2d 222 (1 972). “The void-for-vagueness doctrine reflects the principle that ‘a statute which either forb ids or requires the doing of an act in terms so vague that [persons] of common intelligence must nece ssarily guess at its meaning . . . violates the first essential of due process of law.’” Roberts v United States Jaycees, 468 US 609, 629; 104 S Ct 3244; 82 L Ed 2d 462 (1984), quoting Connally v Gen Constr Co , 269 US 385, 391; 46 S Ct 12 6; 70 L Ed 2d 322 (1926). However, “this prohibition against excessive vagueness does not invalidate every statute which a reviewing c ourt believes could have been drafted with greater p recision. Many statutes will have some inherent vagueness, for ‘[in] most English wo rds and phrases there lurk uncertainties.’ Ev en trained lawyers may find it necessary to consult legal dictionaries, treatises , and judicial opinions before they may say with any certainty what some statutes may compel or forbid. All the Due Pr ocess Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” [ People v Petrella, 424 Mich 221, 255; 380 NW2d 11 (1985) (c itations omitted).] The “void for va gueness” doctrine serves three related interests: “First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Va gue laws may trap the innocent by not providi ng fair warning. S econd, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic polic y matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and di scriminatory application. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘ operates to inhibit the exercise

22of [those] freedoms.’” [ Howell, 396 Mich at 20 n 4, quoting Grayned, 408 US at 108-109.] I would add that the “void for vagueness” do ctrine also ensures that the “judicial power” of this state, see Const 1963, art 6, § 1, is not inappr opriately exercised by “interpreting” a statute whose language is simply not suscep tible to reasonable interpretation; an attempt to give meani ng to such a statute will inevitably devolve into a legislative or policy-making det ermination on the part of a branch of government whose responsibilities do no t entail such determinations. The “void for vagueness” doctrine has generally been held applicable only to criminal statutes or to laws infringi ng First Amendment freedoms. Indeed, to the best of my knowledge, this Court has never struck down a ci vil statute that does not implicate First Amendment free doms under the “voi d for vagueness” doctrine. Chief Justice Ta ylor’s opinion cites no Mich igan or federal case-law to the contrary. Nor can any support for his conclusion be found in any of the parties’ briefs or the numerous amicus curiae briefs filed in this Court. Indeed, not one of those briefs even suggests that the “lost opportunity ” provision in MCL 600.2912a(2) is uncon stitutionally vague. This Court has held that a, statute may be challenged for va gueness on the gr ounds that it —is overbroad, impinging on First Amendment freedoms, or —does not provide fair notice of the conduct proscribed, or —is so indefinite that it c onfers unstructured and unlimited discretion on the trier of fact to determine whether an offense has

23been committed. [ Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980).] Chief Justice Taylor’s opin ion does not indicate on which of these grounds it finds the “lost opportunity” provis ion to be unconstitutionally vague. The first ground certainly is not pertinent, because the “lost opport unity” provision does not impinge on any Firs t Amendment freedoms. Neither of the other two grounds seems to be pertinen t either, as both seem to pertain to criminal offenses, given that the second gr ound refers to “the conduct pros cribed” and the third ground refers to “whether an offense has been committed.” The “lost opportunity” provision neither “proscribe[s ]” conduct nor confers “ unlimited discretion on the trier of fact to determine whether an offense has been committed.” Therefore, there does not seem to be any basis under our current case-law to strike down the “lost opportunity” provision as being uncons titutionally vague. Chief Justice Taylor should, at the least, explain and ju stify his extension of this doctrine, which enables this Court to strike down an enactment of the Legislature.
In A B Small Co v American Sugar Refining Co, 267 US 233; 45 S Ct 295; 69 L Ed 589 (1925), the Un ited States Supreme Court he ld that a buyer could not elude a contract to purchase refined sugar on the basis that the seller was charging an “unjust” or “unreasonabl e” price in violation of a federal statute, because the federal statute was unconstitutionally vague. It is noteworthy that although American Sugar involved a civil breach-of-contract ac tion, the statutory language invalidated was a criminal statute. Howe ver, even putting that aside, the Court

24held that the provision was unconstitutiona lly vague because it required people to “conform to a rule or standard which wa s so vague and indefinite that no one could know what it was.” Id. at 238-239. That is, it was so “indefinite as to be unintelligible . . . .” Id. at 240. In order for someth ing to be “unintelligible,” it must be “not capable of being understood.” Random House Webster’s College Dictionary (1991). As discussed throughout th is opinion, I simply do not believe that the provision at issu e is incapable of being und erstood. MCL 600.2912a(2) may conceivably be un wise or imprudent, it could c onceivably have been drafted with greater clarity and precision, and its interpretation may require an unusual investment of judicial effort, but it is not incapable of being understood.
In Exxon Corp v Busbee, 644 F2d 1030, 1031 (CA 5, 1981), the United States Court of Appeals for the Fift h Circuit held that a state commercial regulatory statute was not unconstitutionally va gue, because it was not “‘impossible to divine.’” (Citation omitted.) That cour t explained that “[b]ecause the statute is not concerned with either the first ame ndment or the definition of criminal conduct, . . . we must be leni ent in evaluating its constitutionality.” Id. at 1033. It further explained that “uncertainty in this statute is not enough for it to be unconstitutionally vague; rather, it must be substantially incomprehensible .” Id. (emphasis added). 20 Finally, the court indicated that “the parties themselves have

20 Although Chief Justice Taylor does not expressly state that he believes MCL 600.2912a(2) to be unconstitutionally vague, he uses the identical language-- (continued...)
25offered possible interpretations” of the provision,” and then concluded that “[t]hese attempts at statutory constructi on illustrate that [the provision] is, while most assuredly not a ‘model of clarity,’ at least amenable to some sensible construction.” Id. at 1034 (citation omitted). Becau se I conclude that the “lost opportunity” provision at issu e in the instant case is lik ewise “amenable to some sensible construction,” I st rongly disagree with Chief Ju stice Taylor’s conclusion that this provision shou ld be struck down on th e grounds of vagueness. Furthermore, I must emphasize the we ll-established rule that “this Court will presume that all legislation is cons titutional and will a ttempt to construe legislation so as to preserv e its constitutionality[.]” People v Neumayer, 405 Mich 341, 362; 275 NW2d 230 (1979). No rule of construction is bett er settled in this country, both upon principle and authority, than th at the acts of a state legislature are to be presumed constitutional un til the contrary is shown; and it is only when they manifestly infringe some provision of the constitution that they can be declared void for that reason. In cases of doubt, every possibl e presumption, not clearly inconsistent with the language and the subject matter, is to be made in favor of the constitutionality of the act. [ Sears v Cottrell , 5 Mich 251, 259 (1858) (emphasis in original).] “We are duty bound u nder the Michigan Co nstitution to preserve the laws of this
state . . . .” People v Bricker, 389 Mich 524, 528; 208 NW2d 172 (1973). Therefore, “courts [must] constr ue the language of a stat ute so as to give it effect

(...continued) “substantially incompre hensible”-- that the Exxon Court used when addressing whether a statutory provisi on was unconstitutionally vague.

26rather than to nullify it.” Petrella, 424 Mich at 241. “Every reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so cl early as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity.” Cady v Detroit , 289 Mich 499, 505; 286 NW 805 (1939). “We exercise the power to declare a law unconstitutional with extreme caution . . . .” Phillips v Mirac, Inc , 470 Mich 415, 422; 685 NW2d 174 (2004). Therefore, “every statute passed by the Legislature is presumed to be constitutional, and a reviewin g court should find an act invalid only when there is no reasonable interpretation which will sustain it.” State Treasurer v Wilson , 423 Mich 138, 146; 377 NW2d 703 (1985). “Indeed, although the presumption is not conclusive, it is powerful enough to perm it even a strained construction when necessary to save constitutionality.” Williams v Hofley Mfg Co , 430 Mich 603, 613; 424 NW2d 278 (1998) (ci tations omitted); see also Osborn v Charlevoix Circuit Judge , 114 Mich 655, 660; 72 NW 982 (1897) (“There is always a presumption in favor of constitutionality, and this presumption justifies a construction which is rather against the natu ral interpretation of the language used, if necessary to sustain the law.”). “[D]eclaring a statute unconstitutional is ‘“the gravest and most delicate duty that this Court is calle d on to perform”’ . . . .” People v Lynch, 410 Mich 343, 352; 301 NW2d 796 (19 81) (citation omitted). Although I do not necessarily agree that we are obligated to adopt interpretations that are “strained,” Williams,

27430 Mich at 613, or “against the natural . . . language,” Osborn , 114 Mich at 660, I do not believe that the interpretation of MCL 600.2912a(2) set forth in this opinion comes anywhere close to such boundaries. I simply do no t think that Chief Justice Taylor’s opinion sufficiently persev eres to avoid the declaration of unconstitutionality that he apparently reaches. 21 Chief Justice Taylor ’s opinion concludes th at MCL 600.2912a(2) is unenforceable because the tw o sentences in that provi sion are inconsistent with one another. Once again, I disagree. Ch ief Justice Taylor states that under the first sentence of MCL 600.2912a(2), a plai ntiff must prove that the defendant’s malpractice caused the injury, while under the second sentence, a plaintiff cannot prove that the defendant’s malpractice ca used the injury. What he fails to recognize is that in a “lost opportunity” ac tion, the injury is not the death or the

21 It is also noteworthy that this Court has repeatedly made it clear that “ambiguity is a finding of last resor t,” because a finding of ambiguity, enables an appellate judge to bypass traditional approaches to interpretation and either substitute presumptive “‘rule[s] of policy,’” see Klapp v United Ins , 468 Mich 459, 474; 663 NW2d 447 (2003), quoting 5 Corbin, Contract s (rev ed, 1998), § 24.27, p 306, or else to engage in a largely subjectiv e and perambulatory reading of “legislative history.” [ Lansing Mayor v Pub Service Comm, 470 Mich 154, 164-165 and n 6; 680 NW2d 840 (2004).] Yet, in this case, Chief Justice Taylor not only concludes that the statute is ambiguous, but essentially concludes that it is unconstitutio nally vague and, therefore, null and void.

28physical harm, but the “lost opportunity” to avoid the death or physical harm, 22 and that a “lost oppo rtunity” plaintiff does have to prove th at the defendant’s malpractice more probably than not caused this injury. As we explained in Falcon, 436 Mich at 461 (Levin, J.): “We thus see the injury resulting from medical malpractice as not only, or necessarily, phys ical harm, but also as including the loss of opport unity of avoiding physical harm.” However, even “[u]nder this approach, th e plaintiff must estab lish more-probable-than-not causation.” Id. at 462. That is, the plaintiff “must prove, more probably than not, that the defendant reduced the op portunity of avoiding harm.” Id. Therefore, in both a traditional medical-malpractice action, in which the alleged injury is the

22 Chief Justice Taylor’s opinion contends that pursuant to Wickens, 465 Mich at 60-61, the injury in a “lost o pportunity” action must be the death or the physical harm, not the “lost opportunity” to avoid the death or the physical harm. I disagree. In Wickens, this Court simply he ld that a surviving plaintiff has not lost an opportunity to survive. That is, a surviving plai ntiff cannot recover damages for the possibility that he or sh e may die sometime in the future. There must be a present injury. Therefore, in a “lost opportuni ty to survive” action, the patient must have failed to survive; and, in a “lost opportunity to achieve a better result” action, the patient must have fa iled to achieve the better result. Those plaintiffs who survived, a nd those who achieved the be tter result, have simply suffered no “lost opportunity” at all, and thus have no grounds on which to seek a recovery. However, those patients who did not surviv e, and those patients who did not achieve a better result, do have a present in jury, even though the plaintiffs in those cases cannot prove that the d efendant’s malpractice caused the death or the physical harm, and these plaintiffs can recover as long as they can prove that the defendant’s malpractice cause d the patients to lose an opportunity to survive or achieve a better result and that the “lost opportunity” was greater than 50 percent. Contrary to Chief Justice Taylor’s contention, Falcon, 436 Mich at 470 (Levin, J.), did not allow for the recovery of the same kind of injury that Wickens precluded. In Falcon, unlike in Wickens, the patient did not survive and thus did suffer a “lost opportunity to survive.”

29death or the physical harm itself, and in a “lost opportunity” action, in which the alleged injury is the “lost opportunity” to avoi d the death or the physical harm, the plaintiff must prove that it is more pr obable than not that the defendant’s malpractice caused the injury. Contrary to Chief Justice Taylor’s contention, then, the two sentences in MCL 600.2912a(2) are not inconsistent. Pursuant to the first sentence, all medical-malpractice plaintiffs must prove that the defendant’s malpractice more probably than not caused the alleged injury. Pursuant to the second sentence, a “lost opportunity” plaintiff mu st prove that the “lost opportunity” was greater than 50 percent. Therefore, in or der to satisfy both senten ces, a “lost opportunity” plaintiff must prove that the defendant’s malpractic e more probably than not caused the “los t opportunity” and that the “lost opportu nity” was greater than 50 percent. There is nothing incons istent about these sentences. However, there is something inconsistent ab out Chief Justice Taylor’s opinion. He concludes that the second sentence of MCL 60 0.2912a(2) is so “substantially incomprehensible” that it is “unenforceable.” Ante at 2, 17, 20. Yet, despite this conclusion, he repeated ly asserts that wh en the Legislature enacted the second sentence of MCL 600. 2912a(2) it “intended” certain things. See, e.g., a nte at 13-14, where the he states that the Legislature “intended” the “lost opportunity” provision to apply to “situation[s] in whic h an injury might have occurred anyway , but in which the defendant’s act or omission hastened or worsened it in such a way that the plaintiff suffered mo re severe physical injury

30than he or she woul d have had the negligence not occurred,” and ante at 18, where he states that “the Legislature intended to retain the traditi onal proximate-cause requirement in effect before Falcon . . . .” 23 If this provision is so vague-- indeed of a constitutional dimension, as Chi ef Justice Taylor’s opinion essentially concludes-- how can he be so certain what the Legislature intended by it? Either we know what the Legislatu re intended by this provis ion or we do not; Chief Justice Taylor cannot have it both ways.
IV. RESPONSE TO JUSTICE CAVANAGH In his opinion, Justice Cavanagh c oncludes that the second sentence of MCL 600.2912a(2) requires only that the patient’s premal practice chance to obtain a better result be greater than 50 percent. As explaine d earlier, I agree with him that the phrase “the opportunity” in MC L 600.2912a(2) refers b ack to the language “loss of an opportunity.” 24 However, I disagree with hi s conclusion that “loss of an opportunity” refers to the patient’s premalprac tice chance to obtain a better result. Instead, I believe that “loss of an opportunity” clearly refers to the

23 Chief Justice Taylor’s opinion contends that the Legislature intended to abolish “lost opportunity” claims. I agree w ith Justice Cavanagh’s opinion that if that was the Legislature’s intent, it would have simply prohibited plaintiffs from bringing “lost opportunity” claims, rath er than merely adding a provision that imposes an additional requirement on “lost opportunity” plaintiffs.

24 At one point, Justice Cavanagh ass erts that the phrase “the opportunity” refers back to the language “lo ss of an opportunity ” and, thus, that they “are to be construed identically,” ante at 11; however, at another point, he asserts that my proposed meaning of “the opportunity” would inapprop riately read the words “loss of” into the provision, ante at 12. These assertions are simply incompatible.

31opportunity that the patient actually lost as a conseq uence of the defendant’s malpractice. MCL 600.2912a(2) stat es that “the plaintiff cannot recover for loss of an opportunity . . . unl ess the opportunity was greater than 50%.” (Emphasis added.) That is, the opportunity that MCL 600.2912a(2) refers to is the “lost opportunity” for which th e plaintiff may “recover.” The plaintiff cannot necessarily recover for the entire premalp ractice chance to obtain a better result; instead, he or she can only recover for the portion of the premalpractice chance that was actually lost. Justice Cavanagh’s opinion states that “the opportunity alleged to have been lost must be the premalpracti ce opportunity.” Ante at 11 (emphasis added). This is plainly incorrect . Instead, the chan ce alleged to have been lost may be the entire premalprac tice chance; however, it may also be only a portion of the premalpractice chance, as in the instant case in which plaintiff’s opportunity to obtain a better result wa s reduced from 99 percen t to 95 percent. Justice Cavanagh seems to recognize th is, because he states that “the premalpractice opportunity . . . is the opportunity that is lost in some

measure . . . .” Ante at 11 (emphasis added). In fact , at one point, he seems to reach the same conclusion that I do-- “a pl aintiff cannot recover for the loss of an opportunity unless the opportunity-- the premalpract ice opportunity that was allegedly lost in some measure- - was greater than 50 percent.” Ante at 11 (emphasis in original). That is, the portion of the prem alpractice opportunity that was lost must be greater than 50 percent. However, at other points, he states

32inconsistently that the word “opportu nity” refers only to the premalpractice opportunity. Ante at 11. Justice Cavanagh’s opinion also c ontends that “MCL 600.2912a(2) cannot limit recovery for the loss of an opportunity to cases in which the loss was greater than 50 percent, because a ny plaintiff who satisfied th at condition would have a traditional medical-malpractice claim for th e death or physical harm itself.” Ante at 13. Justice Cavanagh similarly cont ends that Dr. Waddell’s “formula would preclude true lost-opportunity plain tiffs from bringing cl aims and provide medical-malpractice claimants with lost -opportunity causes of action for which they have no need.” Ante at 21. These contentions, I believe, are incorrect. For example, in the instant case, although, pursuant to Dr. Waddell’s formula, plaintiff suffered the loss of an 80 p ercent opportunity to achiev e a better result, i.e., no amputation, plaintiff cannot prove th at defendants’ malpractice caused the amputation, as he would be required to do in a traditional medical-malpractice action. He cannot prove that defenda nts’ malpractice cau sed the amputation because there was at least a 1 percent chance that plain tiff would have suffered an amputation even with proper t reatment. However, plaintiff did prove that defendants’ malpractice caused him to suffer the loss of an 80 percent opportunity to achieve a better result, i.e., no amput ation. Therefore, contrary to Justice Cavanagh’s contention, it is possible to have a situation in which the “lost opportunity” exceeds 50 percent, but the plaintiff ca nnot satisfy the requirements of a traditional medical-malpractice acti on, and Dr. Waddell’s formula identifies

33those plaintiffs who cannot satisfy the requirements of a traditional medical

malpractice action but who can satisfy th e “lost opportunity” requirements of MCL 600.2912a(2). 25

25 Although Justice Cavanagh states that he disag rees with my distinction between a “lost opportunity” action and a traditional medical-malpractice action, at other points in his analysis he seems to agree with it. For instance, he states that a plaintiff would not be ab le to recover for the patient ’s death in a traditional medical-malpractice action if the patient only had a 40 p ercent premalpractice chance of survival, b ecause the plaintiff “w ould not be able to prove that the physician’s malpractice more probably than not . . . caused the patient’s death” since “[t]here was a 60 percent chance that the patient w ould have died regardless of the malpractice, as a resu lt of the preexisting condition. But the plaintiff might be able to show that th e physician’s malpractice more probably than not caused the patient to lose up to a 40 percent chance of avoidi ng death,” i.e., recover for the “lost opportunity” in a “lost opportunity” action. Ante at 8-9. This is precisely the distinction that I make between “l ost opportunity” actions and traditional medical-malpractice actions. Yet at other points Justice Cavanagh seems to misunderstand my distinction between “lost opportunity” actions and traditional medical-malpractice actions. For instance, he states that my distinc tion must be wrong b ecause we have long held that the medical malpractice does not ha ve to be the sole cause of the injury in order for a medical-malprac tice plaintiff to prevail. Ante at 13-14 n 6, 17-20. However, my distinction is not inconsiste nt with this holdi ng. To the contrary, I agree with Justice Cavanagh that the medical malpractice does not have to be the sole cause of the injury. For example, if Bill brok e Tom’s leg and Dr. Jones committed medical malpractice in treati ng Tom’s broken leg, resulting in permanent damage to Tom’s le g, Tom may still be able to prevail in a traditional medical-malpractice action for the permanen t damage to his leg. He would be able to prevail in such an action if proper treatment would not have resulted in permanent damage. However, if there wa s a chance that Tom’s leg would have been permanently damaged ev en with proper treatment, then Tom would only be able to recover for his “lost opportunity ” of avoiding the permanent damage. Contrary to Justice Cavanagh’s conten tions, my analysis would not “preclude plaintiffs with preexisting conditi ons that might ha ve contributed slightly to their injuries from bringing medical-malpractice claims”; it would not “preclude medical-malpractice claims from arising in situations in which proper medical treatment does not always succeed”; and it would no t “preclud[e] a medical

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34(...continued) malpractice claim unless administering pr oper treatment would never produce permanent damage.” Ante at 17, 20 n 9 (emphasis in or iginal). Furthermore, I agree with Justice Cavanagh that the “fact that a plaintiff has a pre-existing condition does not, by itself, cause a clai m to be a lost-oppo rtunity claim rather than a [traditional] medical-malpractice claim.” Ante at 19. As explained above, even though Tom had a pre-existing condition, i.e., a broken leg, To m would still have a traditional medical-malpractice acti on if proper treatment would not have resulted in permanent damage. Finally, Justice Cavanagh concludes th at the instant case is not a “lost opportunity” cause of action. Ante at 16. However, this se ems to be inconsistent with his own definition of a “lost opportunity” cau se of action. He defines a “lost opportunity” action as one in which the “lost opportunity ” was not greater than 50 percent. Ante at 8-10 and n 2, 13-15. He calcu lates this “lost opportunity” by subtracting the postmalpractice chance of obtaining a better result from the premalpractice chance. Ante at 8-10 and n 2, 13-15. In the instant case, the premalpractice chance was 99 percent an d the postmalpractice chance was 95 percent. Therefore, pursuant to Justice Cavanagh’s own formula, plaintiff’s “lost opportunity” was 4 percent. Given that plaintiff’s “los t opportunity” was less than 50 percent, I do not understa nd why he concludes that this is not a “lost opportunity” cause of action. Further, I do not understand wh y he believes that this plaintiff should prevail, given hi s conclusion that MC L 600.2912a(2) simply codified Falcon and added the requirement that the premalpractice chance must be greater than 50 percen t. As Justice Cavanagh e xplains, Falcon held that the “lost opportunity” must be “substantial.” Ante at 5, quoting Falcon, 436 Mich at 470 n 43 (Levin, J.). Does Justice Cavanagh be lieve that a 4 percent “lost opportunity” is “substantial”? Justice Cavanagh, ante at 16 n 7, attempts to avoid this dilemma by making the same mistake as the Court of Appeals, i.e., considering all potential risks rather than only those risks associated with th e injury actually suffered by plaintiff. See n 18 supra . For example, given that plaintiff did not die, it is inappropriate to take into consideration, as Justice Cavanagh does, the fact that plaintiff’s risk of death increased as a result of the medical malpractice. Id. Contrary to Justice Cavana gh’s contention, not considering plain tiff’s increased risk of death does not “penalize[] [p laintiff] for managi ng to survive,” ante at 16 n 7; it simply does not calculate his entitle ment to a recovery in malpractice on the basis of a death that he never su ffered. I cannot comprehend why Justice Cavanagh thinks that considering an increased risk of death is “relevant to the jury’s determination of whether malpract ice [has] caused a pl aintiff to suffer a particular harm,” ante at 16 n 7 (emphasis added) , when the “particular harm” actually suffered was other than death.

35In order to satisfy traditional me dical-malpractice action requirements, there must be no question th at the proper treatment woul d have resulted in a good outcome (at least with reg ard to the specific inju ry suffered by the patient), because if there is any ch ance that a patient who recei ved proper treatment might nevertheless have suffered the specifi c bad outcome ultimately suffered by the patient, it cannot be proved that the improper treat ment caused the bad outcome. If there is any chance that the proper treatment could have resulted in the bad outcome, the chances of a go od outcome with proper trea tment and the chances of a good outcome with improper treatment mu st be compared. That is, under those circumstances, although the plaintiff cannot prove that the defendant’s malpractice caused the bad outcome becau se the bad outcome might have occurred even with proper treatment, the plaintiff may be able to prove that the defendant’s malpractice increased the patient’s chances of obtaining a bad outcome and, thus, caused him or her to suffer a “lost opportunity ” to achieve a better result. This is the only coherent concep t of a “lost opportunity” cause of action under MCL 600.2912a(2). 26

26 Given that (a) Chief Justice Taylor’ S analysis would render the “lost opportunity” provision null and void, (b) Justice Ca vanagh’s analysis is inconsistent and incompatible with the language of the statute, and (c) the analysis in this opinion has no votes other than my own, I urge the Legislatu re to revisit MCL 600.2912a(2) at its earliest opportu nity. If the Legislature wishes to maintain the “lost opportunity ” doctrine, it should enact a provision that indicates such an intention, and that sets fo rth in as clear a manner as possible the requirements a “lost opportunity” plainti ff must satisfy. The fractionalization of this Court in the instant case suggests that this ha s not been achieved by the (continued...)
36V. CONCLUSION A “lost opportunity” action is one in which it is possi ble that the bad outcome would have occurred even if the patient ha d received proper treatment. On the other hand, if there is no questi on that the proper t reatment would have resulted in a good outcom e and the patient has suffered a bad outcome, the plaintiff possesses a traditional medical-m alpractice action. In order for a traditional medical-malpractice plaintiff to p revail, the plaintiff must prove that the bad outcome was more probably than not ca used by the defenda nt’s malpractice. In order for a “lost opportuni ty” plaintiff to p revail, the plaintiff must prove that the “lost opportunity” to achieve a better result was more probab ly than not caused by the defendant’s malpractice and that the “lost opportunity ” was greater than 50 percent. In order to det ermine whether the “lost oppo rtunity” was greater than 50 percent, the postmalpractice chance of obtaini ng a better result must be subtracted from the premalpractice ch ance; the postmalpractice chance must then be subtracted from 100; the former number must be divided by the latter number; and

(...continued) present language of MCL 600.29 12a(2). It is ironic, as Chief Justice Taylor points out, ante at 20 n 14, that th e majority holding in Fulton continues apparently to be the law of our state, despite the fact that not a single justice on this Court agrees with this holding and despite the fact that three justices (those supporting Justice Cavanagh’s opinion), who support the dissent in Fulton, are effectively marshaled in support of this conclusi on. Nonetheless, I think th at Chief Justice Taylor’s analysis in this regard is correct.

37then this quotient must be multiplie d by 100 to obtain a percentage. The calculation can be su mmarized as follows: (Premalpractice chance) – (Postmalpractice chance) x 100 100 - (Postmalpractice chance) If this percentage is greater than 50, the plaintiff may be able to prevail; if this percentage is 50 or less, then the plaintiff cannot prevail. Because it is possible that the bad ou tcome in this case, i.e., amputation, would have occurred even if plaintiff had received pr oper treatment, the instant case is a “lost opportunity” action. Because plaintiff’s “lost opportunity” was greater than 50 percent, I would affirm the result of the Court of Appeals.

Stephen J. Markman

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