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No. 133986
| Carl Stone and Nancy Stone, |
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Donald W. Ferris, Jr. |
Plaintiffs-Appellees, |
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| v |
(Appeal from Ct of Appeals) |
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(Jackson - Schmucker, C.) |
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| David A. Williamson, M.D., Jackson Radiology |
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Susan Healy Zitterman |
| Consultants, P.C., and W.A. Foote Memorial |
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Christina A. Ginter |
| Hospital, |
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| Defendants-Appellants. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiffs-Appellees' Brief on Appeal>>
Defendants-Appellants' Brief on Appeal>>
Defendants-Appellants' Reply Brief>>
Citizens for Better Care's Amicus Curiae Brief>>
Dr. Roy W. Waddell's Amicus Curiae Brief>>
Michigan Association for Justice's Amicus Curiae Brief>>
Michigan Defense Trial Counsel's Amicus Curiae Brief>>
Michigan Health and Hospital Association's Amicus Curiae Brief>>
Michigan State Medical Society's Amicus Curiae Brief>>
ProNational Insurance Company's Amicus Curiae Brief>>
Background
On April 4, 2002, Carl Stone suffered the rupture of an abdominal aortic aneurysm, which required emergency surgery to treat. Following the rupture, Stone had to have both legs amputated at mid-thigh level. Stone and his wife brought a medical malpractice suit against radiologist Dr. David Williamson, his professional corporation, and the hospital where he works. The Stones alleged that Williamson misread Carl Stone’s January 25, 2000 arteriogram films and erroneously noted “no aneurysm” on the radiology report. Because Williamson did not identify the aneurysm on the 2000 films, Stone lost the opportunity to undergo elective surgery, the plaintiffs contended The plaintiffs’ medical experts testified that a patient having elective surgery to repair an aortic aneurysm has a 95 percent chance of attaining a good result, which includes the potential to survive the rupture as well as avoiding additional medical complications. In contrast, misdiagnosed patients whose aneurysms rupture have only a 10 percent chance to achieve a good result, the experts said; in fact, 80 percent of patients with aortic aneurysm ruptures die, typically en route to obtain medical care. Of those who make it into surgery, 60 percent die during surgery, the plaintiff’s experts stated. The defendants asked the trial court to dismiss the case, arguing that the plaintiffs could not establish that Stone suffered a lost opportunity within the meaning of MCL 600.2912a(2). Section 2912a(2) provides that “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%.” Under the Court of Appeals’ decision in Fulton v William Beaumont Hosp, 253 Mich App 70 (2002), § 2912a(2) requires a plaintiff seeking to establish a claim of lost opportunity to show that the initial opportunity was diminished by more than 50 percentage points, the defendants stated. But in Stone’s case, the statistics show that the overall risk of all complications other than death was between 5 and 12 percent for elective surgery and up to 40 percent for emergency surgery; at most, Stone’s loss of opportunity was 35 percent, the defendants argued. Moreover, when considering the specific risk of amputation, the opportunity for a better result was 1 percent for elective surgery and 5 percent for emergency surgery, the defendants contended. The trial court concluded that the defendants were reading Fulton too narrowly, and it denied the defendants’ motion for summary disposition. After trial, the jury returned a verdict in the plaintiffs’ favor; the trial court entered a judgment of $1,936,682. The trial court then denied the defendants’ motion for judgment notwithstanding the verdict. The Court of Appeals affirmed in an unpublished opinion. The defendants appeal.
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