Supreme Court Defers on Lost Opportunity Doctrine

Robert G. Kamenec

In Stone v Williamson, M.D., ___ Mich ___; ___ NW2d ___ (July 24, 2008), a medical malpractice action, the Michigan Supreme Court examined the doctrine of “lost opportunity” set forth at MCL 600.2912a(2), which prohibits “recovery for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.” Six of the seven justices determined that the case presented in Stone was not one for lost opportunity, but rather a traditional medical malpractice action, triggering the requirement that the plaintiff demonstrate that the asserted malpractice “more probably than not” caused physical harm.  The court upheld a jury verdict in favor of the plaintiff in the adjusted amount of $1,936,682.Slip opinion, page 4.

The justices then provided commentary on the lost opportunity doctrine.  In the initial opinion authored by Chief Justice Taylor, joined by Justices Corrigan and Young, three justices found that the statutory prohibition is “substantially incomprehensible,” and therefore cannot be enforced. These justices would hold as incorrect the existing statutory interpretation of the lost opportunity doctrine, as enunciated in Fulton v William Beaumont Hospital (a plaintiff can recover for a lost opportunity when the difference between the pre-malpractice and post-malpractice opportunities is greater than 50 percent). Yet, the Fulton approach remains legally undisturbed as a method of analyzing lost-opportunity cases because a majority of the Stone Justices held that this is not a lost-opportunity case at all, and its commentary on lost opportunity is thus dicta. Slip opinion, page 20, note 14.

In a separate opinion authored by Justice Cavanagh, and joined by Justices Weaver and Kelly, three justices reasoned that the statutory language limits lost opportunity to instances where the pre-malpractice opportunity is greater than 50 percent. Justice Cavanagh explained that a plaintiff who can show that malpractice caused a loss of 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 and, therefore, there is no need to resort to the lost opportunity doctrine.

Under the pre-statutory caselaw, Falcon v Memorial Hospital, the loss of a “substantial” opportunity to survive or for a better result is a legally-recognized injury, separate and apart from the physical harm caused by the asserted malpractice. Under this prior law seemingly adopted by Justice Cavanagh, where the difference in the pre- and post-malpractice opportunities is less than 50 percent, the court must determine whether that loss is “substantial.” In the Falcon case, the court held as substantial the loss of 37.5 percent opportunity of the decedent to survive an amniotic fluid embolism properly treated.

In Stone, Justice Cavanagh reasoned that the Michigan Legislature could not have intended to leave the plaintiff empty-handed by a 40 percent lost opportunity claim.  Slip opinion, page 15. Open questions are whether the “substantial” threshold will apply, what percentage is numerically “substantial,” and who decides the substantial question, judge or jury? Another open question is the calculation of damages for a lost opportunity. In Falcon, the court intimated that a jury would determine the worth of the physical injury and reduce that amount to reflect the lost opportunity percentage (for example, the jury would determine the value of the death, but damages would only be awarded in the amount of 37.5 percent of that value).

Justice Markman issued a concurring opinion in which he agreed with Justices Cavanagh, Weaver, and Kelly that a lost opportunity is a legally-recognized injury in Michigan, and that a plaintiff must demonstrate that the lost opportunity itself, rather than the physical harm, “more probably than not” resulted from the asserted malpractice.

Justice Markman adopted a different formula for determining damages: the post-malpractice opportunity must be subtracted from the pre-malpractice opportunity, the post-malpractice opportunity must then be subtracted from 100, the former number must be divided by the 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. For example, if the patient’s pre-malpractice chance to achieve a better result was 80 percent and, as a result of the defendant’s malpractice, the patient’s post-malpractice chance is reduced to 20 percent, the patient has suffered 75 percent of a loss of an opportunity to survive:

            80 – 20; 100 = 75%


The multiple opinions in Stone are dicta and do not technically change the law in the state of Michigan on lost opportunity. The Michigan Court of Appeals’ interpretation of the governing statute in Fulton v William Beaumont Hospital survives, but has been criticized as incorrect by each justice of the Supreme Court. It is likely that a future panel of the Michigan Court of Appeals will interpret Stone to allow the court to deviate from the otherwise-binding nature of the Fulton opinion or recognize a conflict with Fulton and ask that a special panel of the appellate court be convened.

A special panel can disagree with and issue binding precedent contrary to Fulton. Michigan Court Rule 7.215(J)(6). It is also possible, but less likely, that the Michigan Supreme Court itself will grant leave to appeal in another case, which is undisputedly a lost-opportunity case, and then the justices would sort out and apply the various opinions set forth in Stone.

Finally, it is possible that a future panel of the appellate court or the Supreme Court will determine that the statutory prohibition is unconstitutionally vague and is therefore unenforceable. This would allow the appellate courts to establish the doctrine of lost opportunity without regard to the statutory prohibition, and possibly return to the rule of Falcon v Memorial Hospital that a loss of a “substantial” opportunity to survive or for a better result is recoverable as a legal injury.


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