Falcon v. Memorial Hospital
436 Mich. 443, 462 N.W.2d 44 (1990)
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Rule of Law:
In a medical malpractice action, a plaintiff can recover for the loss of a substantial opportunity to survive, even if the original opportunity was less than 50 percent. The injury is the lost opportunity itself, and damages are awarded proportionally to the value of the chance that was negligently destroyed.
Facts:
- Nena Falcon, a nineteen-year-old woman, was admitted to Memorial Hospital to give birth under the care of Dr. S. N. Kelso, Jr.
- Dr. Kelso administered a spinal anesthetic to Nena Falcon without first inserting an intravenous (IV) line.
- Moments after delivering a healthy baby, Nena Falcon suffered a sudden and unpreventable amniotic fluid embolism.
- She immediately went into respiratory and cardiac collapse.
- Attempts to revive her, including attempts to start an IV to administer life-saving fluids, failed because her veins had collapsed.
- Nena Falcon was pronounced dead shortly thereafter.
- The plaintiff's expert witness testified that if an IV line had been in place before the embolism occurred, Nena Falcon would have had a 37.5 percent chance of survival.
Procedural Posture:
- Ruby Falcon, as administratrix of Nena Falcon's estate, sued Dr. S. N. Kelso, Jr. and Memorial Hospital in a Michigan trial court for medical malpractice.
- The trial court granted a directed verdict for the defendants after ruling that the plaintiff's expert witnesses were not qualified.
- The plaintiff appealed, and the Michigan Court of Appeals (intermediate appellate court) reversed the directed verdict and remanded for a new trial.
- On remand, defendants moved for summary disposition, arguing the plaintiff could not prove causation because the chance of survival was less than 50%.
- The trial court granted the defendants' motion for summary disposition.
- The plaintiff, as appellant, again appealed to the Michigan Court of Appeals.
- The Court of Appeals reversed the summary disposition, holding that the probability of success need not be greater than 50%.
- The defendants, as appellants, appealed to the Michigan Supreme Court (the state's highest court).
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Issue:
Does Michigan law permit a plaintiff in a medical malpractice action to recover damages for the loss of a less-than-even (under 50%) opportunity of survival caused by a defendant's negligence?
Opinions:
Majority - Levin, J.
Yes, a plaintiff may maintain an action for the loss of an opportunity to survive, even if that opportunity was less than fifty percent. The injury is not the death itself, but the loss of the opportunity of avoiding physical harm. Patients seek medical care precisely to improve their opportunities of avoiding harm, and a physician who negligently diminishes or destroys that opportunity has caused a cognizable injury. To deny recovery simply because the initial chance of survival was below 50 percent would declare 'open season on critically ill or injured persons.' The court recognizes the loss of a 37.5% opportunity as substantial and actionable. Damages should be calculated based on the value of the opportunity lost, meaning 37.5 percent of the damages that would be recoverable for a wrongful death.
Dissenting - Riley, C.J.
No, a wrongful death action requires the plaintiff to prove that the defendant's negligence, more probably than not, caused the decedent's death. Recognizing a 'lost chance' as a recoverable injury fundamentally contradicts and eviscerates the essential legal principle of causation by allowing recovery for a mere possibility that the defendant's omission caused the harm. This new theory transforms tort law from a compensatory system based on causation into a payout scheme based on statistical chances. It will impose an unfair burden on the medical profession, encouraging costly defensive medicine and penalizing physicians for unfavorable outcomes they did not actually cause.
Concurring - Boyle, J.
Yes, the loss of an opportunity to survive is a cognizable injury for which damages should be proportional to the lost chance. However, this holding should be strictly limited to cases where the ultimate harm to the victim is death. Any language in the majority opinion suggesting that a similar cause of action might exist for a lost opportunity of avoiding lesser physical harm is dicta, and the viability of such a claim should be decided in a future case.
Analysis:
This decision represents a significant departure from the traditional 'all-or-nothing' rule of causation in medical malpractice law. By recognizing the 'loss of opportunity' as a distinct and compensable injury, the court allows plaintiffs to recover in cases where a patient's prognosis was already poor (less than 50% chance of survival). This ruling lowers the causation threshold for a specific class of plaintiffs who would otherwise be barred from any recovery. The decision aligns Michigan with a growing number of jurisdictions that have relaxed strict causation standards to prevent the injustice of allowing a negligent actor to escape liability simply because the patient's odds were unfavorable from the start.
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