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Full Opinion
FALCON
v.
MEMORIAL HOSPITAL
Supreme Court of Michigan.
Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Lee R. Franklin) for the plaintiff.
Plunkett & Cooney, P.C. (by Robert G. Kamenec), for defendant Memorial Hospital.
Weipert & Weipert (by Michael A. Weipert) for defendant Kelso.
Amici Curiae:
Dickinson, Wright, Moon, Van Dusen & Freeman (by Barbara Hughes Erad and Robert W. Powell) for the Michigan Defense Trial Counsel.
Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by Susan Healy Zitterman), for the Michigan Hospital Association.
Schureman, Frakes, Glass & Wulfmeier (by Priscilla L. Schwarze) for the Michigan Society of Hospital Risk Management.
Mark Granzotto, Monica Linkner, and Charles P. Burbach for the Michigan Trial Lawyers Association.
LEVIN, J. (to affirm).
The deposition testimony of *447 plaintiff Ruby Falcon's[1] expert witness tended to show that had the defendant physician, S.N. Kelso, Jr., followed the procedures the expert witness claims should have been followed, the patient, Nena J. Falcon, would have had a 37.5 percent opportunity[2] of surviving the medical accident that was a cause of her death.
The trial court dismissed the complaint[3] because Falcon's evidence did not show that Nena Falcon probably defined as more than fifty percent would have survived if the procedure had not been omitted. The Court of Appeals reversed, stating that Falcon need only "establish that the omitted treatment or procedure had the potential for improving the patient's recovery or preventing the patient's death." Falcon v Memorial Hosp, 178 Mich App 17, 26-27; 443 NW2d 431 (1989). The Court added that "while a plaintiff must show *448 some probability that the treatment would be successful, that probability need not be greater than fifty percent."[4] We affirm.
I
Plaintiffs claiming medical malpractice ordinarily contend that the act or omission said to have constituted medical malpractice caused physical harm to the patient. Falcon so contends in the instant case, claiming that although Nena Falcon would have had only a 37.5 percent opportunity of surviving the medical accident that was a cause of her death had the defendant physician followed the procedures the expert claims should have been followed, and hence less than a fifty-one percent *449 opportunity of surviving, the defendants nevertheless caused Nena Falcon's death.
The defendants contend that because the proofs at a trial of Falcon's claim would not show that it was probable, measured as more than fifty percent, that Nena Falcon would have avoided physical harm had the procedure not been omitted, Falcon cannot show that the asserted negligence of defendants caused her physical harm. They also contend that Falcon cannot maintain an action for wrongful death because such an action can only be maintained where the plaintiff can establish that the act or omission caused death, and, again, Falcon's proofs will fall short because they will show only that there would have been a 37.5 percent opportunity of avoiding death and not a more than fifty percent opportunity had the procedure not been omitted.
II
Some courts disallow recovery for lost opportunity unless the plaintiff can establish that the patient would not have suffered the physical harm but for the defendant's negligence, or, at least, that it is more probable, measured as more than fifty percent,[5] that, but for such negligence, the patient would not have suffered the physical harm.[6]
*450 Under the more probable, measured as more than fifty percent, approach to causation, a plaintiff who establishes that the patient would have had more than a fifty percent opportunity of not suffering physical harm had the defendant not acted negligently, recovers one hundred percent of the damages. The better than even opportunity is compensated as if it were a certainty, although the *451 patient's chances of a better result are significantly less than one hundred percent.[7]
To say that a patient would have had a ninety-nine percent opportunity of survival if given proper treatment, does not mean that the physician's negligence was the cause in fact if the patient would have been among the unfortunate one percent who would have died. A physician's carelessness may, similarly, be the actual cause of physical harm although the patient had only a one percent opportunity of surviving even with flawless medical attention.[8]
All this is simply to say that the more probable than not standard, as well as other standards of causation, are analytic devices tools to be used in making causation judgments. They do not and cannot yield ultimate truth. Absolute certainty in matters of causation is a rarity.[9]
III
Other courts have permitted recovery for physical *452 harm on a showing that the lost opportunity was a substantial, albeit fifty percent or less, factor in producing the harm:
An evolving trend has developed to relax the standard for sufficiency of proof of causation ordinarily required of a plaintiff to provide a basis upon which the jury may consider causation in the "lost chance of survival" cases. [McKellips v St Francis Hosp, Inc, 741 P2d 467, 471 (Okla, 1987).][[10]]
*453 Some courts have held that the plaintiff need only show that the defendant's conduct was a substantial factor in producing the physical harm.[11] Other courts allow recovery for loss of a fifty percent or less opportunity of achieving a better result without clearly articulating a standard of causation.[12] A number of courts have so held on the basis of language in the Restatement Torts, 2d.[13]
IV
Nena Falcon, a nineteen-year-old woman, gave birth to a healthy baby, Justice Eugene Falcon, in the early morning hours of March 21, 1973. Moments after delivery, Nena Falcon coughed, gagged, convulsed, became cyanotic, and suffered a complete respiratory and cardiac collapse. Attempts *454 to revive her were unsuccessful.[14] She was pronounced dead soon thereafter.
The autopsy report indicated that amniotic fluid embolism,[15] an unpreventable complication that occurs in approximately one out of ten or twenty thousand births, was the cause of death. The survival rate of amniotic fluid embolism is, according to Falcon's expert witness, 37.5 percent if an intravenous line is connected to the patient before the onset of the embolism. In this case, an intravenous line had not been established.[16]
Falcon's theory is that had a physician or nurse anesthetist inserted an intravenous line before administering the spinal anesthetic to assist the physician in dealing with any of several complications, the intravenous line could have been used to *455 infuse life-saving fluids into Nena Falcon's circulatory system, providing her a 37.5 percent opportunity of surviving. By not inserting the intravenous line, the physician deprived her of a 37.5 percent opportunity of surviving the embolism.
V
The question whether a defendant caused an event is not readily answered,[17] and is especially perplexing in circumstances such as those present in the instant case where the defendant's failure to act is largely responsible for the uncertainty regarding causation.[18]
Had the defendants in the instant case inserted an intravenous line, one of two things would have happened, Nena Falcon would have lived, or she would have died.[19] There would be no uncertainty *456 whether the omissions of the defendants caused her death.[20] Falcon's destiny would have been decided *457 by fate and not possibly by her health care providers. The United States Court of Appeals for the Fourth Circuit, observed:
When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. Harvey v Silber, 300 Mich 510; 2 NW2d 483 (1942).[[21]] [Hicks v United States, 368 F2d 626, 632 (CA 4, 1966).[22] Emphasis in original.]
*458 VI
In an ordinary tort action seeking recovery for physical harm, the defendant is a stranger to the plaintiff and the duty imposed by operation of law is imposed independently of any undertaking by the defendant. In an action claiming medical malpractice, however, the patient generally is not a stranger to the defendant. Generally, the patient engaged the services of the defendant physician. The physician undertook to perform services for the patient, and the patient undertook to pay or provide payment for the services.
The scope of the undertakings by a physician or hospital to the patient and by the patient to the physician or hospital is not generally a matter of express agreement. There is, however, an understanding that the law enforces in the absence of express agreement. The patient expects a physician to do that which is expected of physicians of like training in the community, and the physician expects the patient to pay or provide payment for the services, whether the likelihood of there in fact being any benefit to the patient is only one through fifty percent or is greater than fifty percent.
The defendants assert, in effect, that the scope of their undertaking did not include acts or omissions likely to benefit the patient only to the extent of *459 one through fifty percent or at least they should not be subject to liability for acts or omissions likely to have caused harm to the extent only of one through fifty percent. They contend that they should be subject to liability only for acts or omissions likely, to the extent of more than fifty percent, to have caused physical harm to the patient:
The reasoning of the district court herein (which is similar to the extreme position taken in Cooper v Sisters),[[23]] in essence, declares open season on critically ill or injured persons as care providers would be free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment. [Roberson v Counselman, 235 Kan 1006, 1021; 686 P2d 149 (1984).]
Patients engage the services of doctors, not only to prevent disease or death, but also to delay death and to defer or ameliorate the suffering associated with disease or death. If the trier of fact were to decide, on the basis of expert testimony, that the undertaking of the defendant physician included the implementation of tasks and procedures that, in the case of Nena Falcon, would have enabled the physician and other medically trained persons, who were present at the time of delivery, to provide her, in the event of the medical accident that occurred, an opportunity to survive the accident, a failure to do so was a breach of the understanding or undertaking.[24]
*460 Nena Falcon, if the testimony of Falcon's expert witness is credited, would have had a 37.5 percent opportunity of surviving had the defendants implemented the procedures Falcon's expert asserts should have been implemented. In reducing Nena Falcon's opportunity of living by failing to insert an intravenous line, her physician caused her harm, although it cannot be said, more probably than not, that he caused her death. A 37.5 percent opportunity of living is hardly the kind of opportunity that any of us would willingly allow our health care providers to ignore. If, as Falcon's expert asserts, the implementation of such procedures was part of the understanding or undertaking, the failure to have implemented the procedures was a breach of the understanding or undertaking. The physician is, and should be, subject to liability for such breach, although Nena Falcon was likely, measured as more than fifty *461 percent, to die as soon as the medical accident occurred and the negligence of the physician eliminated a less than fifty percent opportunity of surviving.
We thus see the injury resulting from medical malpractice as not only, or necessarily, physical harm, but also as including the loss of opportunity of avoiding physical harm. A patient goes to a physician precisely to improve his opportunities of avoiding, ameliorating, or reducing physical harm and pain and suffering.
Women gave birth to children long before there were physicians or hospitals or even midwives. A woman who engages the services of a physician and enters a hospital to have a child does so to reduce pain and suffering and to increase the likelihood of her surviving and the child surviving childbirth in a good state of health even though the likelihood of the woman and child not surviving in good health without such services is far less than fifty percent. That is why women go to physicians. That is what physicians undertake to do. That is what they are paid for. They are, and should be, subject to liability if they fail to measure up to the standard of care.
VII
A number of courts have recognized, as we would, loss of an opportunity for a more favorable result, as distinguished from the unfavorable result, as compensable in medical malpractice actions.[25] Under this approach, damages are recoverable for the loss of opportunity although the opportunity lost was less than even, and thus it is *462 not more probable than not that the unfavorable result would or could have been avoided.[26]
Under this approach, the plaintiff must establish more-probable-than-not causation.[27] He must prove, more probably than not, that the defendant reduced the opportunity of avoiding harm.
In Aasheim v Humberger, 215 Mont 127, 133; 695 P2d 824 (1985), the plaintiff commenced an action against Dr. Humberger alleging that his failure to order diagnostic films of her knee area, resulted in her losing an opportunity for less radical surgery and of preserving her natural knee. The Supreme Court of Montana treated the reduction in the opportunity of avoiding physical harm as actionable in recognition that patients claiming medical malpractice are generally injured *463 or diseased at the time of the alleged malpractice:
We feel that including "loss of chance" within causality recognizes the realities inherent in medical negligence litigation. People who seek medical treatment are diseased or injured. Failure to diagnose or properly treat denies the opportunity to recover. Including this lost opportunity within the causality embrace gives recognition to a real loss consequence of medical failure.
The trier of fact should determine whether defendant's negligence was a substantial factor in reducing plaintiff's chances of obtaining a better result.
In DeBurkarte v Louvar, 393 NW2d 131, 135 (Iowa, 1986), the Supreme Court of Iowa explained the difference between viewing the injury as a loss of life and viewing it as a loss of opportunity to survive an illness:
We recognize that the plaintiff's injury may be viewed as a shortening of her life, in which case we would agree with the defendant that the plaintiffs did not produce substantial evidence on causation: there was no evidence the plaintiff's cancer probably spread after September, 1981, preventing her from being cured. [Citation omitted.] On the other hand, as the Restatement [§ 323(a)][[28]] indicates, her injury may also be viewed as a lost chance to survive the cancer. The jury could then find from the evidence that the defendant's failure to diagnose and treat the cancer probably caused a substantial reduction in the plaintiff's chance to survive it.[[29]]
The court concluded: "We believe the better approach[[30]] *464 is to allow recovery, but only for the lost chance of survival." Id., p 136. (Emphasis in original.)
The Supreme Court of Washington permitted the personal representative of the patient to maintain an action where there was expert testimony of a fourteen percentage point reduction from thirty-nine percent to twenty-five percent in the patient's opportunity for survival, which was claimed to have resulted from a delay in diagnosis of lung cancer. Herskovits v Group Health Cooperative of Puget Sound, 99 Wash 2d 609; 664 P2d 474 (1983). The majority, in two separate opinions, agreed, that recovery for "[c]ausing reduction of the opportunity to recover (loss of chance) by one's negligence, however, does not necessitate a total recovery against the negligent party for all damages caused by the victim's death."[31]
In a concurring opinion in Herskovits, in which four of six judges comprising the majority joined, the loss of opportunity case law was reviewed and the following conclusions were stated:
*465 First, the critical element in each of the cases is that the defendant's negligence either deprived a decedent of a chance of surviving a potentially fatal condition or reduced that chance. To summarize, in Hicks v United States[[32]] the decedent was deprived of a probability of survival; in Jeanes v Milner[[33]] the decedent's chance of survival was reduced from 35 percent to 24 percent; in O'Brien v Stover,[[34]] the decedent's 30 percent chance of survival was reduced by an indeterminate amount; in McBride v United States[[35]] the decedent was deprived of the probability of survival; in Kallenberg v Beth Israel Hosp[[36]] the decedent was deprived of a 20 percent to 40 percent chance of survival; in Hamil v Bashline[[37]] the decedent was deprived of a 75 percent chance of survival; and in *466 James v United States [483 F Supp 581 (ND Cal, 1980)][[38]] the decedent was deprived of an indeterminate chance of survival, no matter how small.
The three cases where the chance of survival was greater than 50 percent (Hicks, McBride, and Hamil) are unexceptional in that they focus on the death of the decedent as the injury, and they require proximate cause to be shown beyond the balance of probabilities. Such a result is consistent with existing principles in this state, and with cases from other jurisdictions cited by defendant.
The remaining four cases allowed recovery despite the plaintiffs' failure to prove a probability of survival. Three of these cases (Jeanes, O'Brien, and James) differ significantly from the Hicks, McBride, and Hamil group in that they view the reduction in or loss of the chance of survival, rather than the death itself, as the injury. Under these cases, the defendant is liable, not for all damages arising from the death, but only for damages to the extent of the diminished or lost chance of survival. The fourth of these cases, Kallenberg, differs from the other three in that it focuses on the death as the compensable injury. This is clearly a distortion of traditional principles of proximate causation. In effect, Kallenberg held *467 that a 40 percent possibility of causation (rather than the 51 percent required by a probability standard) was sufficient to establish liability for the death. Under this loosened standard of proof of causation, the defendant would be liable for all damages resulting from the death for which he was at most 40 percent responsible.
My review of these cases persuades me that the preferable approach to the problem before us is that taken (at least implicitly) in Jeanes, O'Brien, and James. [Id., pp 631-632. Emphasis added.]
Finally, the opinion states "that the best resolution of the issue before us is to recognize the loss of a less than even chance as an actionable injury." Id., p 634. (Emphasis added.)
In Ehlinger v Sipes, 155 Wis 2d 1, 13-14; 454 NW2d 754 (1990), parents were permitted to maintain an action alleging that the failure to diagnose a multiple pregnancy was a substantial factor in causing injuries to twins suffered when they were born prematurely. The court said:
We conclude that in a case of this nature, where the causal relationship between the defendant's alleged negligence and the plaintiff's harm can only be inferred by surmising as to what the plaintiff's condition would have been had the defendant exercised ordinary care, to satisfy his or her burden of production on causation, the plaintiff need only show that the omitted treatment was intended to prevent the very type of harm which resulted, that the plaintiff would have submitted to the treatment, and that it is more probable than not the treatment could have lessened or avoided the plaintiff's injury had it been rendered. It then is for the trier of fact to determine whether the defendant's negligence was a substantial factor in causing the plaintiff's harm. [Emphasis in original.]
In Waffen v United States Dep't of Health & *468 Human Services, 799 F2d 911 (CA 4, 1986), a lung cancer patient filed a medical malpractice claim, alleging failure to communicate, failure to supervise medical care, and abandonment.[39] The United States Court of Appeals for the Fourth Circuit, while retaining the requirement that a plaintiff must prove that the defendant's conduct more likely than not caused the injury, recognized loss of opportunity as a distinct injury.[40]
VIII
The defendants contend, that the injury for which Falcon sought to maintain this wrongful death action, the failure to protect Nena Falcon's *469 opportunity of avoiding physical harm, cannot be maintained because the proofs at trial will not show that it is probable, measured as more than fifty percent, that, had they protected her opportunity of living, she would not have died. Recognizing loss of a substantial opportunity of avoiding physical harm as actionable makes it unnecessary to consider whether Falcon's action for medical malpractice can be maintained as an action for wrongful death. Falcon may maintained a survival action against the defendants for their failure to protect Nena Falcon's opportunity of living.
The harm resulting from defendants' asserted malpractice occurred immediately before Nena Falcon's death when the medical accident occurred and, by reason of the failure to have inserted an intravenous line, it became certain that she would die. At that moment, immediately before her death, Nena Falcon had a cause of action for the harm, the denial of any opportunity of living, that had been caused her.[41] Her claim therefor survived her death because "[a]ll actions and claims survive death." RJA § 2921.[42]
*470 We are persuaded that loss of a 37.5 percent opportunity of living constitutes a loss of a substantial opportunity of avoiding physical harm.[43] We need not now decide what lesser percentage would constitute a substantial loss of opportunity.
*471 IX
In the instant case, while Nena Falcon's cause of action accrued before her death,[44] she did not suffer conscious pain and suffering from the failure to implement the omitted procedures between the moment that the medical accident occurred and the time of her death a few minutes later she was sedated throughout the entire time period. In this case, 37.5 percent times the damages recoverable for wrongful death would be an appropriate measure of damages.
The Supreme Court of Iowa differentiated loss of opportunity cases that allow a plaintiff to recover for the underlying injury from those[45] that limit damages to the patient's lost opportunity of survival. Criticizing the former group of cases, the court said:
Under this reasoning, a patient could recover all damages resulting from an injury for which a defendant may only be partly responsible. It effectively allows a jury to speculate on causation because expert testimony that a physician's negligence probably caused the total damages is not required. This is an extreme position and clearly distorts the traditional principles of causation. [DeBurkarte v Louvar, supra, p 137. Emphasis in original.]
The court concluded that recovery should be allowed "only for the lost chance of survival." Id. (Emphasis in original.)
In Mays v United States, 608 F Supp 1476, 1482 (D Colo, 1985), the court found that the malpractice reduced the patient's opportunity of survival *472 from forty to fifteen percent. In computing damages, the court multiplied the opportunity lost, twenty-five percent (forty percent less fifteen percent), by the net pecuniary loss to determine the damages caused by the defendant.[46] The plaintiff thus was permitted to recover damages only for the reduction in the patient's opportunity of survival.[47]
We would affirm the Court of Appeals reversal of the entry of summary judgment for the defendants, and remand the case for trial.
ARCHER, J., concurred with LEVIN, J.
BOYLE, J. (concurring).
I concur in the recognition of "lost opportunity to survive" as injury for which tort law should allow recovery in proportion to the extent of the lost chance of survival, ante, p 466, provided that the negligence of the defendant *473 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" only where the ultimate harm to the victim is death. Thus, any language in the lead opinion suggesting that a similar cause of action might lie for a lost opportunity of avoiding lesser physical harm is dicta. Whether the social and policy factors which justify compensation for a lost chance of survival would justify recovery for the loss of a chance to avoid some lesser harm is a question for another day.
CAVANAGH, J., concurred with BOYLE, J.
RILEY, C.J. (dissenting).
I would hold that a wrongful death action[1] may not survive a motion for summary disposition where it is uncontested that the plaintiff cannot show that defendant's negligence caused the decedent's death, and will produce evidence only that the decedent would have had an increased chance of survival if the defendant, as in this case, had not negligently failed to insert an intravenous line before or immediately after administering saddle block anaesthesia.[2] Where plaintiff cannot show that defendants' omission was probably a cause of the death of Nena Falcon, the degree of certitude which would justify the imposition of liability on defendants is lacking. The recognition of mere chance as a recoverable item of loss fundamentally contradicts the essential notion of causation. By definition, the lost chance theory would compensate *474 plaintiff for a mere possibility that defendants' omission caused the death of Nena Falcon.
I
This is a wrongful death action grounded in allegations of medical malpractice. The action arises from the death of Nena J. Falcon on March 22, 1973. Ms. Falcon, then nineteen years old, was delivered of a healthy child at defendant Memorial Hospital, under the care of defendant Dr. S.N. Kelso, Jr. At the request of the decedent, Dr. Kelso administered a saddle block anaesthetic prior to delivery. No intravenous line was inserted before or after the administration of the spinal anaesthetic. Immediately after the delivery of the child at 6:39 A.M., and before the placenta was delivered, Nena Falcon coughed and went into a convulsive state. Nurse Norma Denny attempted to obtain a blood pressure reading but there was none, indicating cardiac arrest. At this time the decedent had no respirations. According to Dr. Kelso, the patient died within a few minutes. Efforts to resuscitate her were unsuccessful. Attempts to start an intravenous line were unsuccessful. A "cut down" into a central vein was also attempted, but fluids could not be run into the decedent's circulatory system because there was no circulation at this time. The autopsy revealed that the decedent had suffered an amniotic fluid embolism, an unpredictable and life threatening complication of pregnancy. There is no known way to prevent amniotic fluid embolism. While there are certain predisposing factors, it can occur in a person who is apparently healthy and normal.[3]*475 The primary cause is a rent in the amnion[4] or chorion,[5] together with pressure sufficient to force the amniotic fluid into the circulatory system.
Plaintiff does not allege that defendant's negligence caused the embolism. Rather, plaintiff claims that the survival rate for women suffering this complication is 37.5 percent, but that due to defendant's negligence, Nena Falcon was deprived of that chance.
Plaintiff's claim is based primarily on the testimony of Dr. Ezzat Abouleish. Dr. Abouleish testified at the deposition that spinal anaesthesia should not be given without an intravenous line because spinal anaesthesia can lead to a decrease in blood pressure or respiratory depression. According to Dr. Abouleish, an intravenous line, had it been in place, would have provided Ms. Falcon's only chance of survival. Dr. Abouleish could not say that the failure to use an intravenous line was the cause of Ms. Falcon's death. He testified, however, that her chances of surviving the embolism would have been better if she had an intravenous line in place and fluids going into her bloodstream. If an intravenous line had been in place, Ms. Falcon could have been given drugs to stimulate her heart or dilate her bronchi.
Dr. Abouleish testified that the overall survival rate for women suffering amniotic fluid embolism is 37.5 percent. This number was calculated in the following manner: Of one hundred patients experiencing this complication, fifty will die within one hour and fifty will survive. Of the fifty survivors, twenty-five will develop a blood coagulation problem *476 which will be fatal to half of those developing the problem. Thus, the statistical survival rate for amniotic fluid embolism is 37.5 percent. Dr. Abouleish testified that for a patient to have even that chance of survival, an intravenous line is essential.
Plaintiff also relies on the deposition testimony of Dr. Thomas DeKornfeld. Dr. DeKornfeld generally agreed with Dr. Abouleish's accounting of the survival statistics for women suffering amniotic fluid embolism, although he would not place the survival rate precisely at 37.5 percent. Dr. DeKornfeld testified that an intravenous line should be started immediately after the administration of a spinal anaesthetic, so that any complication arising from the spinal anaesthetic could be managed by injecting medication intravenously. While Dr. DeKornfeld opined that it was clearly inappropriate not to insert an intravenous line in the decedent, he was "not certain" that the presence of an intravenous line would have made any difference. When questioned further, DeKornfeld stated that intravenous infusion very likely would have made little if any difference in this case, but he conceded that "[t]here may have been a chance...." DeKornfeld reiterated that opinion in cross-examination: He did not believe the presence of intravenous infusion would have materially affected the outcome, but he could not say it was inconceivable that an intravenous line might have changed the ultimate outcome.
A trial was held on January 7, 8 and 9, 1985. The trial ended with a directed verdict in favor of defendants after the trial court ruled that plaintiff had failed to present any expert testimony regarding the applicable standard of care for the doctor or nurse-anesthesiologist. That ruling was based on the trial court's determination that Drs. *477 Abouleish and DeKornfeld were not qualified to testify to the relevant standards of care. The Court of Appeals reversed the order granting the directed verdict, holding that both Drs. Abouleish and DeKornfeld were qualified to testify regarding the standard of care in Monroe, Michigan, or in similar communities.
On remand, defendants moved for summary disposition pursuant to MCR 2.116(C)(10).[6] Defendants argued that, since plaintiff conceded that the decedent's chance of survival was only 37.5 percent, under the best possible circumstances and in the absence of any negligence, plaintiff could not establish that any negligence by the defendants was the proximate cause of Nena Falcon's death. The trial court granted summary disposition in favor of defendants, stating that plaintiff could only prove "that the wrongful acts or omissions of the defendants caused her to lose a chance at life (37.5 percent), but could not prove that the defendants' acts or omissions caused her death."
The Court of Appeals reversed. Falcon v Memorial Hosp, 178 Mich App 17; 443 NW2d 431 (1989).
II
The decision of the Court of Appeals would require a plaintiff alleging medical malpractice to show only that a negligently omitted treatment or *478 procedure "had the potential for improving the patient's recovery or preventing the patient's death." 178 Mich App 26. The Court of Appeals held that "while a plaintiff must show some probability that the treatment would be successful, that probability need not be greater than fifty percent." Id., pp 26-27. The analysis of the Court of Appeals turned on the meaning of the word "probability" in two cases decided by this Court.
In Rogers v Kee, 171 Mich 551; 137 NW 260 (1912), the plaintiff's proofs showed that the defendant physician failed to diagnose a fractured neck and femur. The Court in Rogers noted that the defendant not only had failed to diagnose the plaintiff's fractures, but had issued three successive diagnoses of conditions that the plaintiff did not have, and treated him for these conditions. Id., p 558. The Court stated that pain and suffering from a wrong treatment are elements of damage, and further noted that some of the advice given could actually have been injurious to the plaintiff's condition. Id. On the basis of its conclusion that a jury could have found a better result probable but for defendant's negligence, the Court held that the case was properly submitted to a jury:
[A] patient suffering from such an injury, on calling a physician, is entitled to approved methods of treatment from which experience of the profession indicates beneficial results are probable and to be anticipated; and, if not an entire recovery, a better ultimate condition than if left to chance. If so, can it not be legitimately inferred by a jury that plaintiff, a strong man, who, untreated and with his recovery left to chance, "shows as good results as would ordinarily obtain in a patient of his age under skillful treatment," if properly and skillfully treated would, in all probability, *479 have a better recovery and be in yet better condition? We think such testimony presents an issue of fact for the jury on probability, it is true. The issues of sickness and healing, life and death, are too uncertain to be otherwise forecast, but negligence which deprives a man of such probability is more than injuria sine damno. [Id., pp 561-562.]
Although the Rogers Court cited a definition of injury to the plaintiff as "[a]ny want of the proper degree of skill or care which diminishes the chances of the patient's recovery, prolongs his illness, increases his suffering, or, in short, makes his condition worse than it would have been if due skill and care had been used," it based its conclusion on an assessment of testimony tending to show that with proper treatment, "a bony union was possible and a better fibrous union probable ...." Id., p 562 (emphasis added).
This Court again considered the problem of causation in a medical malpractice case in Harvey v Silber, 300 Mich 510; 2 NW2d 483 (1942). In Harvey, the negligence of the defendant doctors resulted in an inaccurate diagnosis of the course of the bullet that struck the decedent. Id., p 520. The Court inferred from the record that the doctor who initially treated the decedent thought he felt the bullet under the skin on the right side of the decedent's abdomen. The x-rays revealed a bullet on the left side, but the chief of the x-ray department reversed the markings of left and right upon discovering that the treating doctor disagreed with his diagnosis finding a bullet on the left side. Id., p 513. The decedent died after eighteen hours. The autopsy revealed blood in the abdomen sufficient to cause death. It also revealed that the bullet which had entered at the right back had traveled forward from right to left, lodging in the upper left side of the abdominal cavity. Id., p 515. The *480 bullet had traveled through the intestines causing numerous perforations. Id. There was testimony that only by surgery could the hemorrhaging have been stopped. The Court in Harvey found sufficient evidence to support a finding of proximate cause, finding proof of "probability" sufficient:
There is testimony in the record that there was a probability that an operation would have saved Harvey's life. Therefore the negligent diagnosis could be said to have been the proximate cause of the death. [Id., p 520.]
The Court of Appeals carefully considered both Rogers and Harvey, and concluded that the test of "probability" employed in those cases was not an inquiry whether an event was more likely than not to happen. Id. The Court of Appeals noted that "the word `probability' ... also refers to the relative chances of an event happening, whether that `probability' be low or high." 178 Mich App 26. Thus, the Court concluded, "while a plaintiff must show some probability that the treatment would be successful, that probability need not be greater than fifty percent." Id., pp 26-27.
That the Court of Appeals misconstrued the rule of Harvey and Rogers is made perfectly clear by the Harvey Court's approval of an instruction which required the jury to find by a preponderance of the evidence that surgery would "with reasonable probability" have saved the decedent's life:
"[Y]ou may not return a verdict for the plaintiff if he has shown only that surgical intervention might possibly have saved the life of Garfield Harvey, but, on the other hand, it is not incumbent on the plaintiff to show that to a certainty surgical intervention would have saved his life. It is sufficient if the plaintiff by a preponderance of *481 the evidence has satisfied you that surgical intervention would with reasonable probability have saved his life...." [300 Mich 521. Emphasis added.]
"Probability" thus means neither certainty nor mere possibility. The Court of Appeals conclusion that an omitted procedure need only have the potential for preventing the death necessarily reduces the degree of certitude which is inherent in the notion of causation from "probability" to mere possibility.[7] The "lost chance of survival" theory urged by plaintiff thus represents not only a redefinition of the threshold of proof for causation, but a fundamental redefinition of the meaning of causation in tort law. To determine the wisdom of that course, we look to the law of other jurisdictions.
III
The seminal case in the development of the lost chance of survival theory is Hicks v United States, 368 F2d 626 (CA 4, 1966). Hicks itself is not a lost chance of survival case, as there was testimony that if the defendant had not negligently failed to diagnose the decedent's intestinal obstruction, she would have survived. In dicta, the court wrote:
When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of *482 realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.[[8]] [Id., p 632.]<