Weymersv.Khera

Supreme Court of MichiganJun 17, 1997
454 Mich. 639 (Mich. 1997)

Cases citing this document

How cited

  • Estate of Knudsen v. Fieger

    The application of the law to the facts of a particular case also presents a question of law reviewed de novo…

  • Stone v. Williamson

    In accord with this analysis, this Court has stated: "The lost opportunity doctrine allows a plaintiff to…

198 Citing cases

Summaries written by judges

Summaries

  • concluding that a motion to amend may be denied when it will "prevent the opposing party from receiving a fair trial, if for example, the opposing party would not be able to properly contest the matter raised in the amendment . . . ."

    Summary of this case from Snell v. Avalon Props. Rapids

  • affirming summary judgment for physician where plaintiff had only "thirty to forty percent chance" of avoiding injury, and holding that "no cause of action exists for the loss of an opportunity to avoid physical harm"

    Summary of this case from Grant v. American National Red Cross

  • stating a pleading must contain “the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend”

    Summary of this case from Attorney Gen. v. Bd. of State Canvassers

Docket No. 102961.

Argued January 14, 1997 (Calendar No. 6).

Decided June 17, 1997.

Sommers, Schwartz, Silver Schwartz, P.C. (by Robert B. Sickels and Patrick Burkett), for the plaintiffs. David L. Rosenthal for the defendant.



In this appeal, we address three issues: (1) whether Michigan recognizes a cause of action for the loss of an opportunity to avoid physical harm less than death, (2) whether the trial court abused its discretion in determining that plaintiff's complaint did not sufficiently plead a claim for pain and suffering from her pulmonary injury, and (3) whether the trial court abused its discretion in denying plaintiff's motion to amend her complaint to add a claim for pain and suffering from pulmonary injury. We hold that Michigan does not recognize a cause of action for the loss of an opportunity to avoid physical harm less than death. We also hold that the trial court did not abuse its discretion in ruling that plaintiff's complaint was inadequately specific and in refusing to allow plaintiff to amend her complaint. Accordingly, we reverse the Court of Appeals decision.

For purposes of this appeal, we assume plaintiff suffered pulmonary injury.

FACTS AND PROCEEDINGS

In early October 1990, plaintiff Kimberly Weymers, who was twenty years old, became ill with coughing, fever, nausea, aching, and chest congestion. After her condition did not improve for more than a week, she went to defendant Walled Lake Medical Center where she was initially examined by a physician's assistant. The physician's assistant concluded from plaintiff's symptoms that she suffered from a respiratory infection and gave her antibiotics. After another week, plaintiff returned to the medical center because her symptoms intensified. The physician's assistant diagnosed plaintiff with pneumonia and sent her home with a stronger prescription of antibiotics. On October 23, 1990, plaintiff visited the medical center a third time because her condition had not improved. A blood sample indicated that plaintiff suffered from severe anemia. Defendant Dr. Frank Fenton, the owner of the medical center, arranged for plaintiff to be admitted to defendant St. Joseph's Hospital in Pontiac.

On the evening of October 23, 1990, plaintiff was admitted to St. Joseph's intensive care unit and was given blood transfusions to combat the anemia. On October 24, 1990, defendant Dr. Rheka Khera examined plaintiff and suspected the possibility of a kidney problem and asked defendant Dr. Gregorio Ferrer, a nephrologist, to examine her. Dr. Ferrer examined her that day and concluded that she could have a rare disease, Goodpasture's syndrome. He began an immunosuppressive therapy immediately, and scheduled a kidney biopsy for October 25, 1990. Plaintiff initially responded to the treatment, but soon after her condition began to deteriorate. Plaintiff's biopsy was postponed until October 26, 1990, and she was placed on a respirator.

Nephrology is "the branch of medical science that deals with the kidney." Random House Webster's College Dictionary.

Goodpasture's syndrome is

[t]he condition of having glomerulonephritis (a type of kidney disease, but more under glomerulonephritis) associated with hemoptysis (the spitting up of blood). It is generally a fatal disease, and at autopsy the lungs are found to show hemosiderosis (abnormal deposits of iron) or hemorrhage. [2 Schmidt's Attorney's Dictionary of Medicine, p G-120.]

Immunosuppressive therapy is

[t]he treatment of certain diseases (as multiple mycloma, chronic nephritis, autoimmune diseases, allergy) by medicines which suppress the immunity response of the body. [ Id., n 3 supra, p I-41.]

On October 26, 1990, plaintiff was transferred to William Beaumont Hospital in Royal Oak and placed under the care of Dr. Isam Salah. At the time, plaintiff had only ten to fifteen percent of her kidney functions. The biopsy was delayed for another three days. The hospital performed a plasma exchange, but it failed to save plaintiff's kidney functioning. Plaintiff was placed on dialysis after her kidneys totally failed and eventually underwent a kidney transplant.

At the time, St. Joseph's Hospital was not equipped to provide a plasma exchange.

On August 16, 1991, plaintiff filed this medical malpractice suit against defendants Drs. Khera, Ferrer, and Fenton, and against Walled Lake Medical Center and St. Joseph Mercy Hospital. During discovery, plaintiff presented an affidavit by expert witness Dr. Eric Neilson, Chief of the Renal Division of the University of Pennsylvania Hospital, who testified that if defendants had given plaintiff proper care she would have had a thirty to forty percent chance of retaining the functioning of her kidneys. Dr. Neilson noted that plaintiff's life expectancy had been "significantly shortened" as a consequence of the loss of her kidneys, and that she would ultimately suffer a premature death. After discovery was closed, St. Joseph's Hospital moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff had failed to demonstrate that the alleged negligence caused the loss of her kidneys. The other defendants joined the motion. In response to defendants' motion, plaintiff asserted that she could recover for her kidney damage even though there was less than a fifty percent chance that defendants' negligence caused the damage on the basis of the lost opportunity doctrine recognized in Falcon v. Memorial Hosp, 436 Mich. 443; 462 N.W.2d 44 (1990). Plaintiff also argued that her damages were not limited to the loss of her kidneys, but also included pain and suffering from her pulmonary injury. Defendants responded that plaintiff had failed to allege damages from her pulmonary injury.

The statements from Dr. Neilson's September 21, 1993, affidavit were only presented to the court in a motion for reconsideration after the trial court had granted summary disposition in favor of defendants.

Before the hearing on the motion, defendants St. Joseph's Hospital, Walled Lake Medical Center, and Dr. Fenton settled their case with Weymers for approximately $300,000.

Plaintiff attached an affidavit by Dr. Eric Neilson which stated, in relevant part:

3. Additionally, I am of the opinion that while a patient at St. Joseph Hospital, Kimberly Weymers suffered extensive pulmonary damage.

4. Specifically, I am of the opinion that the failure of the staff at St. Joseph Hospital to arrange for plasmapheresis therapy [plasma exchange], in a timely manner, resulted in the extensive pulmonary hemorrhage and deterioration.

5. Kimberly Weymers' pulmonary deterioration resulted in her placement on a ventilator for over two weeks, and she required extensive therapy thereafter.

The trial court agreed with defendants and granted their motion for summary disposition. The trial court noted that plaintiff had failed to show that it was more probable than not that her kidney failure was caused by defendants' alleged negligence, and refused to extend the lost opportunity doctrine recognized in Falcon, a wrongful death case, to situations in which the injury did not result in death. The trial court further held that plaintiff's claim of pulmonary injury was not sufficiently pleaded in her complaint. Plaintiff subsequently asked the trial court to allow her to amend her complaint to specifically allege pain and suffering from her pulmonary condition. The trial court denied this request.

Plaintiff appealed in the Court of Appeals, which reversed the decision of the trial court, holding that the lost opportunity doctrine applied to physical injury less than death. 210 Mich. App. 231, 236-237; 533 N.W.2d 334 (1995). The Court of Appeals also held that the trial court abused its discretion in not allowing plaintiff to amend her complaint because defendants were on notice of plaintiff's claim of pulmonary injury and therefore would not have been "unduly prejudiced" by the amendment. Id. at 241.

The Court of Appeals did not address the issue whether plaintiff's complaint sufficiently pleaded a claim for pain and suffering from her pulmonary injury because it found that the trial court abused its discretion in denying plaintiff's motion to amend her complaint. See id. at 240, n 6.

Defendant Drs. Khera and Ferrer appealed, and this Court granted leave to appeal on May 22, 1996.

451 Mich. 898. On October 30, 1996, this Court dismissed Ferrer's appeal for failure to pursue.

I. LOST OPPORTUNITY DOCTRINE A

Defendants brought their summary disposition motion pursuant to MCR 2.116(C)(10). Under that subsection, summary disposition is proper when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." In other words, the "court must be satisfied . . . that `it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.'" Stevens v. McLouth Steel Products Corp, 433 Mich. 365, 370; 446 N.W.2d 95 (1989), quoting Rizzo v. Kretschmer, 389 Mich. 363, 372; 207 N.W.2d 316 (1973). In making that determination, the court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed by the parties in the light most favorable to the party opposing the motion. Quinto v. Cross Peters Co, 451 Mich. 358, 362; 547 N.W.2d 314 (1996). We review summary disposition decisions de novo. Groncki v. Detroit Edison Co, 453 Mich. 644, 649; 557 N.W.2d 289 (1996).

B

We address whether the Court of Appeals erred in recognizing a cause of action for the loss of an opportunity to avoid physical harm less than death.

Under Michigan medical malpractice law, as part of its prima facie case, a plaintiff must prove that the defendant's negligence proximately caused the plaintiff's injuries. MCL 600.2912a; MSA 27A.2912(1); Locke v. Pachtman, 446 Mich. 216, 222; 521 N.W.2d 786 (1994). To establish proximate cause, the plaintiff must prove the existence of both cause in fact and legal cause. Skinner v. Square D Co, 445 Mich. 153, 162-163; 516 N.W.2d 475 (1994). To establish cause in fact,

the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, [but for the defendant's conduct, the plaintiff's injuries would not have occurred.

The phrase "more likely than not" means a probability more than fifty percent. Falcon, supra at 450, n 6.

* * *

"The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." [ Id. at 164-165, quoting Prosser Keeton, Torts (5th ed), § 41, p 269.]

See also Jordon v. Whiting Corp, 396 Mich. 145, 151; 240 N.W.2d 468 (1976) ("[t]he mere possibility that a defendant's negligence may have been the cause, either theoretical or conjectural, of an accident is not sufficient to establish a causal link between the two"); Glinski v. Szylling, 358 Mich. 182, 201-202; 99 N.W.2d 637 (1959) ("[a] case cannot go to a jury supported merely by sheer speculation that something might have been a cause, or, going one step further, that there was a possibility that something was the cause"); Daigneau v. Young, 349 Mich. 632, 636; 85 N.W.2d 88 (1957) ("`[t]here must be more than a mere possibility that unreasonable conduct of the defendant caused the injury'").

To establish legal cause, the plaintiff must show that it was foreseeable that the defendant's conduct "may create a risk of harm to the victim, and . . . [that] the result of that conduct and intervening causes were foreseeable." Moning v. Alfono, 400 Mich. 425, 439; 254 N.W.2d 759 (1977).

The antithesis of proximate cause is the doctrine of lost opportunity. 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. See Reisig, The loss of a chance theory in medical malpractice cases: An overview, 13 Am J Trial Advocacy 1163 (1990). In Falcon, supra at 469-470 (LEVIN, J., lead opinion), 472-473 (BOYLE, J., concurring), this Court adopted the lost opportunity doctrine in wrongful death cases. Our Legislature immediately rejected Falcon and the lost opportunity doctrine. MCL 600.2912a(2); MSA 27A.2912(1)(2). Accordingly, Falcon only applies to causes of action that arose before October 1, 1993. See 1993 PA 78, subsection 4(1) (providing the effective date of the amendment). We do not address the issue raised in Falcon because it is not now before this Court. However, for the reasons that follow, we refuse to extend Falcon. Specifically, we hold that no cause of action exists for the loss of an opportunity to avoid physical harm less than death.

Stated another way, the lost opportunity doctrine permits a plaintiff to maintain an action for malpractice when the malpractice denied the plaintiff an opportunity to avoid the injury, even where the opportunity was fifty percent or less.

Subsection 2912a(2) 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 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%.

Plaintiff's argument that her case falls within Falcon because defendants' negligence will likely lead to a premature death is unpersuasive because plaintiff's claim was for injury to her kidneys, it was not for wrongful death.

Although the case before us is a medical malpractice action, we note that our holding applies to all negligence actions. However, our decision today does not affect the situation where the inextricable combination of joint tortfeasors combines to cause harm in a manner where individual responsibility cannot be fixed. Thus, where several factors combine to produce an injury, and where any one of them, operating alone, would have been sufficient to cause the harm, a plaintiff may establish factual causation by showing that the defendant's actions, more likely than not, were a "substantial factor" in producing a plaintiff's injuries. Brisboy v. Fibreboard Corp, 429 Mich. 540, 547; 418 N.W.2d 650 (1988). See also Prosser Keeton, supra, § 41, p 266. These situations are distinguishable from the lost opportunity doctrine because liability is fastened only after a judicial determination that the plaintiff's injuries were caused by someone, but proof of that responsibility is impossible. In lost opportunity cases, the preponderance of the evidence suggests that no known person was at fault.

C

There are three alternative approaches to the lost opportunity doctrine: (1) the pure lost chance approach, (2) the proportional approach, and (3) the substantial possibility approach. Each approach lowers the standard of causation, with the effect that a plaintiff is allowed to recover without establishing cause in fact.

The pure lost chance approach allows a plaintiff to recover for his injury even though it was more likely than not that he would have suffered the injury if the defendant had not been negligent. See Thompson v. Sun City Community Hosp, 141 Ariz. 597; 688 P.2d 605 (1984). The plaintiff only has to show that the defendant's negligence decreased the plaintiff's chance, no matter how slight, of avoiding the injury. Id. If the plaintiff makes such a showing, he receives full damages. Id.

Only five states follow this extreme approach. See Moore, South Carolina rejects the lost chance doctrine, 48 SC L R 201, 207 (1996), citing Thompson, supra; Gooding v. Univ. Hosp Bldg, Inc, 445 So.2d 1015 (Fla, 1984); Hastings v. Baton Rouge Gen'l Hosp, 498 So.2d 713 (La, 1986); Hamil v. Bashline, 481 Pa. 256; 392 A.2d 1280 (1978); Thornton v. CAMC, 172 W. Va. 360; 305 S.E.2d 316 (1983).

The proportional approach is identical to the pure lost chance approach; however, the plaintiff's recovery is limited to the percent of chance lost multiplied by the total amount of damages that would ordinarily be recovered in that action. McKellips v. St Francis Hosp, Inc, 741 P.2d 467, 476 (Okla, 1987). For example,

if a patient had forty percent chance of recovering from breast cancer and a negligent physician's misdiagnosis results in her chances dropping to ten percent, then the plaintiff can recover thirty percent of her total death-related injuries. Thus, if her damages totaled $100,000, the plaintiff could recover $30,000. [Moore, South Carolina rejects the lost chance doctrine, 48 SC L R 201, 202 (1996).]

The last approach, the substantial possibility approach, was adopted by this Court in Falcon for wrongful death cases. It also is a variation of the pure lost chance approach. Under this approach, the plaintiff must show that there is a substantial possibility that the defendant's negligence caused his injury. See Falcon, supra at 469. It is unclear what constitutes a "substantial possibility." See id. at 470 (holding that a 37.5 percent chance of survival was substantial, but refusing to state what constitutes a threshold showing of substantial). It is clear, however, that it does not have to be more than fifty percent. Id. Thus, the substantial possibility approach is identical to the other approaches to the extent that each approach allows a plaintiff to recover for his injury even though it was more likely than not that he would have suffered the injury if the defendant had not been negligent.

Furthermore, this Court in Falcon, supra at 471, combined the substantial possibility approach with the proportional approach and reduced the damage award to reflect the percentage of chance lost.

In Falcon, supra at 469, this Court defined the injury as the loss of opportunity to avoid the harm, i.e., the death, rather than the harm itself. Redefining the injury, however, does not solve the causation problem:

Whether the court lowers the standard of causation or redefines the injury as a lost chance, the result is the same in that a plaintiff receives compensation despite the greater probability that he or she would have suffered the injury even if the physician had used due care. [Moore, Lost chance doctrine, n 17 supra at 206-207.]

D

Turning to the case now before this Court, the Court of Appeals, relying on the substantial possibility approach, extended the lost opportunity doctrine to the loss of a substantial opportunity to avoid any physical harm. The Court justified its decision on the often proffered reason of deterrence:

If the lost opportunity doctrine is limited to cases only involving death, potentially flagrant examples of malpractice could go uncompensated in cases in which the same negligent failure to diagnose or treat results in a lost opportunity to avoid egregious harm, i.e., paralysis or coma. Thus, the deterrent and loss-allocation functions of tort law would be undermined if defendants could escape liability for the effects of negligent conduct that cause demonstrable losses. [ 210 Mich. App. 237.]

We acknowledge that the deterrent and loss-allocation functions of tort law are important. However, we reject scrapping causation (the bedrock of our tort law) in negligence cases where the injury alleged by the plaintiff is something less than death, for the lost opportunity doctrine's deterrent effect. As the Texas Supreme Court succinctly stated:

Professor Joseph H. King, Jr., championed the deterrence argument for the lost opportunity doctrine in his article, Causation, valuation, and chance in personal injury torts involving preexisting conditions and future consequences, 90 Yale L J 1353, 1377 (1981):

The all-or-nothing approach to loss of a chance also subverts the deterrence objectives of tort law by denying recovery for the effects of conduct that causes statistically demonstrable losses. By placing such losses outside tort law, the all-or-nothing approach distorts the loss-assigning role of that law. Over the universe of such cases, losses of chances of avoiding both the adverse effects of a preexisting condition and the occurrence of future consequences of an injury represent actual losses. We can be statistically certain, for example, that a number of patients with probably (but not necessarily) fatal preexisting conditions would have achieved the hoped-for cure in the absence of the tortious conduct, even if none individually had a better-than-even chance of doing so. A failure to allocate the costs of these losses to their tortious sources undermines the whole range of functions served by the causation-valuation process and strikes at the integrity of the torts system of loss allocation.

[W]e reject the notion that the enhanced deterrence of the loss of chance approach might be so valuable as to justify scrapping our traditional concepts of causation. If deterrence were the sole value to be served by tort law, we could dispense with the notion of causation altogether and award damages on the basis of negligence alone. [ Kramer v Lewisville Memorial Hosp, 858 S.W.2d 397, 406 (Tex, 1993).]

Furthermore, the South Carolina Supreme Court reflects our sentiments in this regard:

We are persuaded that "the loss of chance doctrine is fundamentally at odds with the requisite degree of medical certitude necessary to establish a causal link between the injury of a patient and the tortious conduct of a physician." Legal responsibility in this approach is in reality assigned based on the mere possibility that a tortfeasor's negligence was a cause of the ultimate harm. This formula is contrary to the most basic standards of proof which undergird the tort system. [ Jones v. Owings, 318 S.C. 72, 77; 456 S.E.2d 371 (1995) (emphasis in original, citations omitted).]

Accordingly, because we refuse to discard causation in negligence actions of this kind, we do not recognize a cause of action for the loss of an opportunity to avoid physical harm less than death. Therefore, the Court of Appeals recognition of such a cause of action was in error and is reversed.

II. SPECIFICITY AND AMENDMENT OF PLEADING A

Decisions concerning the meaning and scope of pleading, and decisions granting or denying motions to amend pleadings, are within the sound discretion of the trial court and reversal is only appropriate when the trial court abuses that discretion. Dacon v. Transue, 441 Mich. 315, 328; 490 N.W.2d 369 (1992); Ben P Fyke Sons v. Gunter Co, 390 Mich. 649, 658; 213 N.W.2d 134 (1973).

B

We first address whether the trial court abused its discretion in holding that plaintiff's complaint did not sufficiently plead a claim for pain and suffering from her pulmonary injury.

MCR 2.111(B)(1) requires that a complaint be specific enough to reasonably inform the adverse party of the nature of the claims against him. This Court, in Dacon, supra at 329, explained that

[t]his rule is designed to avoid two opposite, but equivalent, evils. At one extreme lies the straightjacket of ancient forms of action. Courts would summarily dismiss suits when plaintiffs could not fit the facts into these abstract conceptual packages. At the other extreme lies ambiguous and uninformative pleading. Leaving a defendant to guess upon what grounds plaintiff believes recovery is justified violates basic notions of fair play and substantial justice. Extreme formalism and extreme ambiguity interfere equivalently with the ability of the judicial system to resolve a dispute on the merits. The former leads to dismissal of potentially meritorious claims while the latter undermines a defendant's opportunity to present a defense. . . . Neither is acceptable.

In medical malpractice actions, a plaintiff must allege, with reasonable definiteness and certainty, every fact necessary to constitute a cause of action. Dacon, supra at 332-333; Simonelli v. Cassidy, 336 Mich. 635, 644; 59 N.W.2d 28 (1953). To establish medical malpractice, a plaintiff must establish the following elements: (1) the applicable standard of care, (2) breach of that standard, (3) injury, and (4) proximate causation between the alleged breach and the injury. Locke, supra at 222.

C

Turning to the case before this Court, plaintiff argues that the trial court abused its discretion in determining that her complaint did not sufficiently plead a claim for pain and suffering from her pulmonary injury. We disagree and hold that the trial court did not abuse its discretion.

Plaintiff's first amended complaint was not specific enough to reasonably inform defendants of a claim for pulmonary injury. Paragraph 29, the section of plaintiff's complaint addressing the proximate cause and injury elements of plaintiff's malpractice claim, did not mention pulmonary injury. Rather, it only addressed the injury of plaintiff's kidneys:

As a direct and proximate result of the aforementioned acts of negligence and malpractice as described in paragraphs 26 and 28, Plaintiff, Kimberly Weymers, has suffered and continues to suffer severe and grievous injuries and damages, including, but not limited to, the following:

A. Significant medical expenses, past, present and future.

B. Loss of earnings and earning capacity.

C. Severe physical and mental pain and suffering, anxiety, emotional anguish, embarrassment, humiliation and loss of natural enjoyments of life.

D. Permanent loss of all renal function requiring periodic and frequent dialysis. [Emphasis added.]

Renal is defined as "of or pertaining to the kidneys or the surrounding regions." Random House Dictionary, n 2 supra.

Furthermore, the first section of the complaint, which set forth the general allegations with regard to all defendants, indicated that the asserted injury was limited to plaintiff's kidneys:

19. Defendant, Dr. Rheka Khera's admitting differential diagnosis included Goodpastures [sic] Syndrome.

20. On or about October 25, 1990, Defendant, Dr. Rheka Khera requested a consultation from Defendant, Dr. Gregorio Ferrer, a nephrologist, and the consultation was performed on that date.

21. Defendant, Dr. Gregorio Ferrer, also reached the impression of Goodpastures Syndrome, ordered the administration of steroid therapy and planned to perform a kidney biopsy the next day.

22. On October 26, 1990, before the kidney biopsy was performed, Kimberly Weymers was transferred to Beaumont Hospital in Royal Oak where she was admitted.

23. Plaintiff, Kimberly Weymers, remained hospitalized at Beaumont Hospital until November 20, 1990. During her confinement, she was diagnosed as having and was treated for Goodpastures Syndrome.

Similarly, the section of the complaint setting forth the applicable standards of care did not mention pulmonary medicine. The standards of care were as follows:
(1) Walled Lake Medical Center had the duty to provide plaintiff with the "standards of care applicable to physicians specializing in the field of family practice" (¶¶ 25, 27);
(2) Khera had the duty to provide plaintiff with the "standards of practice applicable to physicians who have specialized in the field of internal medicine" (¶ 31); and
(3) Ferrer had the duty to provide plaintiff with the "standards of practice applicable to physicians specializing in the field of internal medicine and nephrology" (¶ 35).

We are not persuaded by plaintiff's argument that the trial court abused its discretion by refusing to recognize that plaintiff's general allegation of pain and suffering encompassed her claim for pulmonary injury. A plaintiff in a malpractice action cannot make a general allegation of pain and suffering and expect the defendant to determine without any guidance from the plaintiff which injury formed the basis of the pain and suffering. See Dacon, supra at 330 (concluding that pleadings that "alleg[e] everything . . . allege nothing [and] . . . are not proper under MCR 2.111"). Moreover, unlike plaintiff's claim for pulmonary injury, defendants were on notice of plaintiff's claim for pain and suffering resulting from her kidney failure because plaintiff specifically alleged in paragraph 29 of her complaint that she suffered injury to her kidneys.

The only arguable mention of pulmonary injury in plaintiff's complaint was in the sections addressing defendants Dr. Khera's and Walled Lake Medical Center's alleged breach of the standard of care:

Failure [of Dr. Khera] to obtain appropriate consultations in a timely manner, including a nephrology consult and a pulmonary consult. [¶ 32.]

The significance of this allegation was diluted, however, because the next paragraph stated that plaintiff suffered the injuries mentioned in paragraph 29 of the complaint (which discusses kidney damage) as a proximate cause of the breach. See ¶ 33.

Failure [of Walled Lake Medical Center] to refer Kimberly Weymers for appropriate consultation in light of her presenting [sic] history, signs and symptoms, including a consultation with an internist, pulmonologist or nephrologist. [¶ 28.]

We note that the paragraph discussing defendant Dr. Ferrer's alleged breach of duty suggests that the injury suffered was kidney failure:

Failure to promptly and timely perform a kidney biopsy, resulting in a delay in the proper management of Plaintiff's condition. [¶ 36.]

We conclude that the trial court did not abuse its discretion in ruling that this hint of pulmonary injury was insufficient to put defendants on notice. Thus, the trial court's determination that plaintiff's claim for pulmonary injury was not sufficiently pleaded was not an abuse of discretion.

For similar reasons, plaintiff's argument that her claim for pulmonary injury was sufficiently alleged because the nature of Goodpasture's syndrome is that it results in pulmonary hemorrhage and kidney damage is unpersuasive. It should not need repeating that a complaint alleging malpractice must state with reasonable specificity and certainty the facts necessary to establish the cause of action. See Dacon, supra at 332-333.

D

We next address whether the trial court abused its discretion in refusing to allow plaintiff to amend her complaint to include a claim for pain and suffering from her pulmonary injury.

If a court grants summary disposition pursuant to MCR 2.116(C)(8), (9), or (10), the court must give the parties an opportunity to amend their pleadings pursuant to MCR 2.118, unless the amendment would be futile. MCR 2.116(I)(5). MCR 2.118(A)(2) provides that leave to amend a pleading "shall be freely given when justice so requires." Under subrule A(3), the court can order the amending party to compensate the opposing party for the additional expense caused by the late amendment, including reasonable attorney fees.

A motion to amend ordinarily should be granted, and should be denied only for the following particularized reasons:

"[1] undue delay, [2] bad faith or dilatory motive on the part of the movant, [3] repeated failure to cure deficiencies by amendments previously allowed, [4] undue prejudice to the opposing party by virtue of allowance of the amendment, [and 5] futility. . . ." [ Fyke, supra at 656.]

If a trial court denies a motion to amend, it should specifically state on the record the reasons for its decision. Id. at 656-657.

Delay, alone, does not warrant denial of a motion to amend. Fyke, supra at 663-664. However, a court may deny a motion to amend if the delay was in bad faith or if the opposing party suffered actual prejudice as a result. Id. "Prejudice" in this context does not mean that the allowance of the proffered amendment may cause the opposing party to ultimately lose on the merits. Id. at 657. Rather, "prejudice" exists if the amendment would prevent the opposing party from receiving a fair trial, if for example, the opposing party would not be able to properly contest the matter raised in the amendment because important witnesses have died or necessary evidence has been destroyed or lost. Id. at 663.

In Fyke, we suggested that there may be some cases in which the delay is so long and the amendment so substantial that the opposing party would be denied a fair trial by the delay, and therefore be prejudiced:

The litigation may proceed to a point where the opposing party cannot reasonably be expected to defend against the amendment; this is an especially pertinent factor on the eve of, during, or after trial. [ Id.]

We reaffirm this principle, but clarify its application. We hold that a trial court may find prejudice when the moving party seeks to add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery is closed, just before trial, and the opposing party shows that he did not have reasonable notice, from any source, that the moving party would rely on the new claim or theory at trial. We recognize that parties ought to be afforded great latitude in amending their pleading before trial, however, that interest must be weighed against the parties' and the public's interest in the speedy resolution of disputes. As Judge John L. Coffey of the United States Court of Appeals for the Seventh Circuit explained:

We note the distinction between the strict requirements for amendment at trial of MCR 2.118(C)(2) and the free amendment rule of MCR 2.118(A)(2). However, MCR 2.118(A)(2) is not limitless. Under MCR 2.118(A)(2), the proposed amendment should be granted unless the party opposing the amendment shows that one of the five particularized reasons specified in Fyke, supra at 656, which includes prejudice, exists.

While Fed R Civ. P 15 favors amendments when required by justice, it is not a license for carelessness or gamesmanship. Parties to litigation have an interest in speedy resolution of their disputes without undue expense. Substantive amendments to the complaint just before trial are not to be countenanced and only serve to defeat these interests. The district court must consider the harm when deciding whether to grant leave.

MCR 2.118 is based on GCR 1963, 118. GCR 1963, 118 "is an adoption of Federal Rule 15." LaBar v. Cooper, 376 Mich. 401, 405; 137 N.W.2d 136 (1965). Further, this Court has been guided by federal precedent in this area. See Fyke, supra at 656. Rule 15(a) of the Federal Rules of Civil Procedure provides, in relevant part:
[A] party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Furthermore, federal courts are permitted to deny a motion to amend a pleading only if one of the five particularized reasons stated in Fyke, supra at 656, exists. See Foman v. Davis, 371 U.S. 178, 182; 83 S Ct 227; 9 L Ed 2d 222 (1962):

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, under prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."

Defense of a new claim obviously will require additional rounds of discovery, in all probability interview of new witnesses, gathering of further evidence, and the identification of appropriate legal arguments. All this necessarily takes time. The parties must have an opportunity for preparation if trial is to be meaningful and clear. Some delay of trial therefore is inevitable — a natural consequence of allowing claims to be brought at all. In this sense, delay alone is not a sufficient basis for refusing an amendment. On the other hand, amendments near the time set for trial may require postponement when the same allegations made earlier would have afforded ample time to prepare without delay. Plaintiff is not entitled to impede justice by imposing even reasonable preparation intervals seriatim. Cf. Ins v Abudu, [ 485 U.S. 94, 95] 108 S Ct 904, 913; 99 L Ed 2d 90 (1988) ("strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases"). Whether it results from bad faith or mere absentmindedness, a district judge may act to deter such artificial protraction of litigation, and its costs to all concerned, by denying the amendment. Zenith Radio Corp [ v. Hazeltine Research, Inc], 401 US [321], 330 [ 91 S Ct 795; 28 L Ed 2d 77 (1971)]; Bohen [ v. City of East Chicago, Ind], 799 F.2d [1180], 1184-1185 [(CA 7, 1986)]. [ Feldman v Allegheny Int'l, Inc, 850 F.2d 1217, 1225-1226 (CA 7, 1988).]

The United States Court of Appeals for the Sixth Circuit further explained in Priddy v. Edelman, 883 F.2d 438, 446-447 (CA 6, 1989):

A party is not entitled to wait until the discovery cutoff date has passed and a motion for summary judgment has been filed on the basis of claims asserted in the original complaint before introducing entirely different legal theories in an amended complaint. . . . In complex cases such as this one, . . . it is particularly likely that drastic amendments on the eve of trial will prejudice the defendants. . . . Putting the defendants "through the time and expense of continued litigation on a new theory, with the possibility of additional discovery, would be manifestly unfair and unduly prejudicial." [Citations omitted.]

See also Acri v. Int'l Ass'n of Machinists Aerospace Workers, 781 F.2d 1393, 1398 (CA 9, 1986); Stein v. United Artists Corp, 691 F.2d 885, 898 (CA 9, 1982); Addington v. Farmer's Elevator Mut Ins Co, 650 F.2d 663, 666-667 (CA 5, 1981).

E

Turning to the case now before this Court, plaintiff attempted to amend paragraph 29 of her complaint to add the following subparagraph:

Physical and mental pain and suffering resulting from the aggravation of the pulmonary pathology.

Defendants opposed the motion, asserting that they would be prejudiced by the amendment because plaintiff was introducing her claim for pulmonary injury for the first time just before trial was scheduled to begin. The trial court denied plaintiff's motion, focusing on the length of the delay and on defendants' lack of notice of plaintiff's new claim:

The Court is satisfied that this is a 1991 case. The Defendants did not have notice that the general damage element of pain and suffering was specific to the damages arising out of pulmonary pathology. Defendants prepared for trial and the Defendants prepared for mediation, the Court is satisfied, due to the loss of renal function. And despite the Plaintiff's contentions, the Court's [sic] satisfied that the Motion for Amendment of the Complaint, Second Amended Complaint, should be denied, and I do so.

The Court of Appeals reversed the decision of the trial court, holding that it abused its discretion in denying plaintiff's motion to amend because the evidence established that defendants "had notice of potential pulmonary complications and thus would not have been unduly prejudiced. . . ." 210 Mich. App. 241. In doing so, the Court of Appeals rejected defendants' argument that plaintiff's amendment sought to add a new theory to the case. Id. at 242.

Contrary to the Court of Appeals assertion, we hold that plaintiff's amendment did seek to introduce a new theory or claim into the case and that defendants did not have reasonable notice that plaintiff would rely on that new theory at trial.

Plaintiff argues that her amendment sought to change the type of damages sought, not add a different claim or theory to the case, and that, therefore, on the basis of Sherrard v. Stevens, 176 Mich. App. 650, 654; 440 N.W.2d 2 (1988), she was entitled to the amendment. In Sherrard, supra at 655, the Court of Appeals held:

While we note that the amendment came shortly before trial, we also note that the amendment did not raise new factual allegations, but merely claimed new types of damages arising from the same set of factual allegations. Accordingly, we do not believe that the trial court abused its discretion in granting the motion to amend the complaint.

Plaintiff's argument is unpersuasive because her case is distinguishable from Sherrard. In Sherrard, the plaintiffs sought to amend their legal malpractice complaint to add a prayer for exemplary damages. Plaintiff Weymers, on the other hand, sought to amend her complaint to change the type of injury she claimed was proximately caused by defendants' negligence. Therefore, plaintiff's amendment is more appropriately characterized as raising a new claim or theory, not a new type of damages.

Thus, plaintiff's amendment requested the court to change two of the four elements of her malpractice action — proximate cause and injury. Plaintiff would have to reestablish the proximate cause element by changing the injury element because the elements are interdependent. In other words, if a plaintiff is required to prove a new injury, she must, by definition, reestablish proximate cause.

Plaintiff's argument that defendants had reasonable notice of her pulmonary claim is also unpersuasive. Although deposition testimony, medical records, and the mediation summary suggested that defendants had knowledge that Goodpasture's syndrome causes pulmonary injury and that plaintiff suffered such injury, defendants had no notice that plaintiff was intending to assert a claim for pulmonary injury at trial. This distinction is significant. If defendants had no notice that plaintiff was intending to assert an independent claim for pulmonary injury, the brief mention of pulmonary injury during the discovery process cannot reasonably be said to automatically make its later appearance as a claim nonprejudicial against defendants. Given the wide latitude of the discovery rules, see MCR 2.302(B), as far as defendants were concerned, the sporadic mention of pulmonary injury during discovery could have been simply fortuitous.

Defendants' questioning of plaintiff's expert witness, Dr. Eric Neilson, is illustrative of their knowledge that Goodpasture's syndrome attacks the lungs and that plaintiff suffered lung damage:

Q. Doctor, I'd like to talk a little bit about what Goodpasture's syndrome is. It's my understanding it's an autoimmune disorder characterized by antiglomerular antibodies which attack the basement membranes of the lung and kidney; would that be correct?
A. Yes.
Q. . . . The diagnosis of Goodpasture's is differentiated between other diseases which attack — attack the renal system in that it manifests itself both in the lungs and in the kidneys; correct?

A. Yes, there are groups of diseases that affect both the lung and the kidneys; simply that's one of them.

* * *
Q. Doctor, is there evidence that her [plaintiff's] lung hemorrhage got worse because she became ventilator dependent; is that the evidence?

A. No, I think her lung hemorrhage became more profound because she was in the middle of a very active disease and it wasn't treated.

Q. Okay. I am not asking if the ventilator caused or contributed to the lung hemorrhage, I want to know what evidence there is in the chart that the lung hemorrhage got worse from the time . . .

A. Her chest x-rays looked worse and the fact she was not able to ventilate herself suggested she had great difficulty in doing it on her own.

For instance, defendant Dr. Khera acknowledged in plaintiff's pulmonary discharge summary that "[t]he patient ended up being on a respirator. . . ." Also, plaintiff's medical records from William Beaumont Hospital state that plaintiff was on a respirator for two weeks: "For the respiratory failure, patient was being ventilated from Oct. 26, 1990 in Beaumont Hospital to Nov. 10, 1990."

Plaintiff's mediation summary states that Goodpasture's syndrome is believed to be a combination of diseases which attacks the lungs and kidneys.

In fact, in response to defendants' interrogatory requesting plaintiff to "state specifically and in detail how the alleged negligence is causally related to the injury," plaintiff replied:

Early diagnosis of Good Pasture [sic] Syndrome would have resulted in earlier initiation of therapy and would have prevented complete destruction of kidney function.

Plaintiff also relies on Terhaar v. Hoekwater, 182 Mich. App. 747, 752; 452 N.W.2d 905 (1990), in support of her contention that defendants had reasonable notice of her claim for pulmonary injury. Plaintiff's reliance on Terhaar is misguided because in Terhaar, unlike the case now before us, the plaintiff not only investigated and pursued her new theory during discovery, she also notified the defendant during discovery that she would pursue that theory at trial.

The plaintiff in Terhaar initially brought a medical malpractice action, alleging that the defendant was "negligent during a wisdom tooth extraction which allegedly resulted in paresthesia, or numbness, to her jaw." Id. at 749. However, during discovery, both parties investigated whether the defendant had properly advised the plaintiff before the extraction of possible complications. Id. The plaintiff also indicated in her mediation summary that "she would pursue a theory of lack of informed consent." Id. Furthermore, the plaintiff's initial complaint even suggested that she would be pursuing that theory:

"On November 6, 1984, Defendant breached his duty to Plaintiff and was guilty of one or more of the following careless, negligent, and improper acts and/or omissions:

* * *
"(f) Failure to examine, evaluate, treat and advise Plaintiff as any reasonably careful and prudent dentist in the same situation." [ Terhaar, supra, at 749.]

In fact, the Court of Appeals held that "[d]efendant would not have been prejudiced by the amendment because he had notice of the generalized allegation of inadequate advice in paragraph seven, subsection (f) of plaintiff's original complaint." Id. at 752.
The plaintiff sought to amend her complaint to add the theory of lack of informed consent just before trial. The trial court denied the plaintiff's motion, and the Court of Appeals reversed, holding that the defendant had reasonable notice of the plaintiff's lack of informed consent claim. Id. at 752.

Therefore, we conclude that the trial court did not abuse its discretion in denying plaintiff's motion to amend because the amendment sought to introduce a new claim just before trial, after discovery had closed, and defendants demonstrated that they did not have knowledge that plaintiff was intending to rely on the new claim at trial.

CONCLUSION

We conclude that Michigan does not recognize a cause of action for the loss of an opportunity to avoid physical harm less than death. Thus, the trial court properly granted defendants' summary disposition motion. We further conclude that the trial court did not abuse its discretion in determining that plaintiff did not sufficiently plead a claim for pain and suffering from her pulmonary injury. The trial court also did not abuse its discretion in denying plaintiff's motion to amend her complaint to add a new claim for pulmonary injury. Accordingly, we reverse the Court of Appeals decision.

MALLETT, C.J., and BRICKLEY and WEAVER, JJ., concurred with RILEY, J.

BOYLE, J., concurred only in the result.


I agree with part II of the majority opinion. The trial court did not abuse its discretion in finding that plaintiffs' first amended complaint inadequately notified defendants that plaintiffs sought damages for pulmonary injuries. Moreover, the trial court did not abuse its discretion in denying plaintiffs' motion to amend because of its late date. However, I respectfully dissent with respect to part I of the majority opinion. I would recognize a cause of action for the loss of an opportunity to avoid physical harm less than death.

Generally, in an action alleging medical malpractice, the plaintiff has the burden of proving four elements: (1) the applicable standard of care, (2) the defendant's breach of that standard, (3) an injury, and (4) proximate causation between the breach and the injury. MCL 600.2912a; MSA 27A.2912(1); Locke v Pachtman, 446 Mich. 216, 222; 521 N.W.2d 786 (1994). Proximate cause requires proof of two separate elements: (1) cause in fact and (2) legal cause. Skinner v. Square D Co, 445 Mich. 153, 162-163; 516 N.W.2d 475 (1994); Moning v. Alfono, 400 Mich. 425, 437; 254 N.W.2d 759 (1977). Generally, to establish the cause-in-fact element, a plaintiff must show that, but for the defendant's action, the injury would not have occurred. Skinner, supra at 163.

The lost opportunity doctrine, adopted by this Court for wrongful death cases in Falcon v. Memorial Hosp, provides an exception to the general rule of proving causation in medical malpractice actions. According to the doctrine, damages are recoverable for the lost opportunity to survive, even though the opportunity was less than fifty percent. Id. at 461 (LEVIN, J.). A plaintiff must show only that there is a substantial possibility that the defendant's negligence caused the injury. Id. at 469.

Several reasons have been advanced for adoption of the doctrine. First, because medicine is an inexact science, questions regarding causation are not easily answered, especially where a physician's failure to act is alleged to be responsible for the harm. Falcon, supra at 455 (LEVIN, J.). Fundamental fairness dictates that the uncertainty be imposed on the tortfeasor, not on the patient. As one commentator has stated:

But for the defendant's tortious conduct, it would not have been necessary to grapple with the imponderables of chance. Fate would have run its course. A defendant's tort not only destroys a "raffle ticket," in so doing it destroys any chance of ever knowing how that ticket would have fared in the drawing. [King, Causation, valuation, and chance in personal injury torts involving preexisting conditions and future consequences, 90 Yale L J 1353, 1378 (1981).]

Second, the doctor-patient relationship should be taken into account. Patients retain physicians not only to cure disease or heal injury, but also to maximize their chance of recovery and to assuage their pain and suffering. Falcon, supra at 459 (LEVIN, J.). The lost opportunity doctrine helps ensure that physicians are liable for negligence or gross negligence that deprives their patients of less than an even chance of obtaining a better result.

Third, as the Court of Appeals stated, where the chance of recovery is fifty percent or less, the traditional rule undermines the loss allocations and deterrent functions of tort law.

If the lost opportunity doctrine is limited to cases only involving death, potentially flagrant examples of malpractice could go uncompensated in cases in which the same negligent failure to diagnose or treat results in a lost opportunity to avoid egregious harm, i.e., paralysis or coma. Thus, the deterrent and loss-allocation functions of tort law would be undermined if defendants could escape liability for the effects of negligent conduct that cause demonstrable losses. [ 210 Mich. App. 231, 237; 533 N.W.2d 334 (1995).]

It is of real concern that the application of traditional concepts of proximate cause may unjustly deny legal recourse to patients injured by a physician's negligence.

The majority acknowledges the importance of the deterrent and loss-allocation functions of tort law. However, it refuses to jettison the element of causation in order to gain the lost opportunity's deterrent effect. In Falcon, Justice LEVIN remarked that causation principles are not discarded where the injury is viewed as the lost chance rather than the ultimate harm. A plaintiff must still establish more-probable-than-not causation. It must be proven that, more probably than not, the defendant reduced the opportunity of avoiding harm. Falcon, supra at 462.

The Ohio Supreme Court recently discarded what it proclaimed "the traditionally harsh view" and adopted the loss-of-chance theory. Roberts v. Ohio Permanente Medical Group, Inc, 76 Ohio St.3d 483, 488; 668 N.E.2d 480 (1996). It reasoned:

In doing so, the Ohio court overruled its previous contrary position taken in Cooper v. Sisters of Charity of Cincinnati, Inc, 27 Ohio St.2d 242; 272 N.E.2d 97 (1971).

A patient who seeks medical assistance from a professional caregiver has the right to expect proper care and should be compensated for any injury caused by the caregiver's negligence which has reduced his or her chance of survival. Over the years, medical technology has improved and advances have been made in the treatment of many areas of medicine, including cancer. However, these medical strides are meaningless unless early detection is practiced diligently by those in the health care field. Thus, a health care provider should not be insulated from liability where there is expert medical testimony showing that he or she reduced the patient's chances of survival. Unfortunately, under the traditional view, this is precisely the outcome. The innocent patient is the loser while the health care provider escapes liability despite his or her negligence.

The policy reasons behind the lost opportunity doctrine apply equally to fatal and nonfatal cases. Patients seek treatment from doctors for maladies other than potentially fatal diseases. In both fatal and nonfatal cases, the patient seeks to improve the opportunity of "avoiding, ameliorating, or reducing physical harm and pain and suffering." Falcon, supra at 461 (LEVIN, J.).

In Aasheim v. Humberger, 215 Mont. 127; 695 P.2d 824 (1985), the plaintiff alleged that the defendant's negligence resulted in the plaintiff losing a chance at less radical surgery and a chance to preserve her natural knee.

The majority fails to explain why the doctrine is proper if death occurs, but not if a lesser injury is involved. It cites Texas and South Carolina Supreme Court cases in support of the argument that traditional notions of causation should not be discarded. Kramer v. Lewisville Memorial Hosp, 858 S.W.2d 397 (Tex, 1993); Jones v. Owings, 318 S.C. 72; 456 S.E.2d 371 (1995). However, both cases focused on whether the lost opportunity doctrine should apply where death is the ultimate result. They did not discuss whether, once the lost opportunity doctrine applies, it should be limited to death cases.

Other jurisdictions have adopted a cause of action for the loss of an opportunity to avoid physical harm less than death. In Aasheim v. Humberger, the plaintiff consulted medically with the defendant physician regarding problems in her left knee. The defendant failed to order x-rays. The plaintiff was diagnosed with chondromalacia. After the condition of her knee did not improve, she was referred to another physician for arthroscopic surgery. Preoperative x-ray films revealed a giant cell tumor in the left knee. Physicians had to remove the infection along with all the bone and soft tissue in the knee area. She was given a prosthetic knee.

Aasheim, n 3 supra.

The plaintiff filed suit for failure to order diagnostic films. She alleged that the error caused her to lose the chance to have less radical surgery and preserve her natural knee. The Montana Supreme Court stated:

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. [ Aasheim, supra at 133.]

In Ehlinger v. Sipes, parents brought an action against a physician for injuries arising from the premature birth of their twins. They alleged that failure to diagnose multiple pregnancies was a substantial factor causing the injuries. The physician argued that, to satisfy their burden on the causation issue, the plaintiffs had to show that, with proper diagnosis and appropriate treatment, more probably than not (1) the twins would not have suffered their injuries, or (2) the injuries would have been less severe. The Wisconsin Supreme Court rejected the argument, stating:

We disagree that to establish causation the Ehlingers must show that proper diagnosis and treatment would have been successful. 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. [ Id. at 13-14 (emphasis in original).]

In Delaney v. Cade, the Kansas Supreme Court considered recognizing a cause of action for the loss of a chance of a better recovery as contrasted with the lost chance to survive. After reviewing the policy arguments relating to the lost chance doctrine, the court found that the lost chance of a better recovery stated a legitimate cause of action. It stated:

We have found no authority or rational argument which would apply the loss of chance theory solely to survival actions or to loss of a better recovery actions and not to both. As noted by plaintiff in her brief. "There is certainly nothing in that [ Roberson] rationale to justify leaving the season open on persons who suffer paralysis, organ loss, or other serious injury short of death while protecting only those who do not survive the negligence."

We acknowledge that the vast majority of cases we have reviewed involved death of the patient and a loss of chance of survival. We also recognize that the apportionment of damages may be more difficult in a loss of a better recovery case than in the cases resulting in death. However, the fact that most cases have involved death of the patient and that damages may be difficult to resolve in a loss of a better recovery case should not be grounds to refuse to recognize the doctrine when medical malpractice has substantially reduced a person's chance of a better recovery. [ Id. at 210.]

The court acknowledged that several jurisdictions have refused to recognize the loss of chance doctrine in either type of case. However, it found no jurisdiction which applied the theory in one type of case and denied it in the other. The court found that most jurisdictions, like Kansas, had simply not had occasion to address the doctrine in both situations.

I agree with the reasoning of the Kansas Supreme Court. Considering the policy arguments underlying the lost opportunity doctrine, there is no rational basis for distinguishing between death cases and cases in which physician negligence has limited recovery. Consequently, I would extend the reasoning of our decision in Falcon to nonfatal cases.


I agree with the analysis of the dissent that would recognize a cause of action for the loss of an opportunity to avoid physical harm less than death. However, I also dissent from part II of the majority opinion, which holds that the trial court did not abuse its discretion in denying plaintiff's motion to amend the complaint. The Court of Appeals reversed the trial court on this issue, holding that it abused its discretion in denying the plaintiff's motion to amend her complaint to add an allegation of physical and mental pain and suffering from the aggravation of the pulmonary pathology.

As the Court of Appeals so aptly stated in its opinion:

Where a motion for summary disposition is grounded on MCR 2.116(C)(10), the trial court is required to give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the amendment would be futile. MCR 2.118(A)(2) provides that leave to amend shall be freely given when justice so requires. The rules pertaining to the amendment of pleadings are designed to facilitate amendment except when prejudice to the opposing party would result. Amendment is generally a matter of right rather than grace. A motion to amend ordinarily should be granted; denial should only be for particularized reasons, such as undue delay, bad faith, dilatory motive, repeated failure to cure deficiency by amendments previously allowed, undue prejudice to the opposing party, or futility.

In this case, the trial court stated:

"The Court is satisfied that this is a 1991 case. The Defendant did not have notice that the general damage element of pain and suffering was specific to the damages arising out of pulmonary pathology. Defendants prepared for trial and the Defendants prepared for mediation, the Court is satisfied, due to the loss of renal function. And despite the Plaintiff's contentions, the Court's satisfied that the Motion for Amendment of the Complaint, Second Amended Complaint, should be denied, and I do so."

However, plaintiff stated in her mediation summary that her damages included the "probability that pulmonary damages would have been minimized such that mechanical ventilation and extensive respiratory therapy would not have been necessary." Plaintiff also alleged in both her original and first amended complaint that on October 23, 1990, she went to defendant Walled Lake Medical Center with a symptom, among others, of "bloody sputum with cough," that she subsequently was admitted to defendant hospital and examined by defendant Khera, and that defendant Khera failed to obtain a timely pulmonary consultation. Defendants Khera and Ferrer both testified in their depositions that Goodpasture's Syndrome affects the lungs and that they observed plaintiff having pulmonary problems. Plaintiff was subsequently placed on a respirator. These facts indicate that defendants had notice of potential pulmonary complications and thus would not have been unduly prejudiced by allowing plaintiff to amend her complaint to allege that her damages included pain and suffering from pulmonary aggravation. Because the amendment would not have prejudiced defendants, the mere fact that this case originated in 1991 is an insufficient reason to deny leave to amend.

Defendants argue that Dacon v. Transue, 441 Mich. 315; 490 N.W.2d 369 (1992), is on point. In Dacon, our Supreme Court upheld the denial of the plaintiff's motion to amend her complaint. However, in that case the plaintiff sought to add a new theory of medical malpractice. The plaintiff had alleged and developed the case on the theory that the defendants prescribed the wrong medicine, and not until trial did she seek to add a theory alleging that the defendants had negligently delayed treating and medicating her. However, Dacon is distinguishable. In this case, plaintiff sought the amendment before trial. Moreover, plaintiff's claim of pulmonary damage arises from her original theory that defendants negligently failed to timely diagnose or treat her Goodpasture's Syndrome.

Thus, although allowing the amendment might have affected the result of the trial, it would not have denied defendants a fair trial. Accordingly, the trial court abused its discretion in denying plaintiff's motion to amend. We reverse the trial court's denial of plaintiff's motion to amend her complaint. On remand, the plaintiff is to be allowed to amend her complaint to add an allegation of pain and suffering relating to pulmonary damage. [ 210 Mich. App. 231, 240-242; 533 N.W.2d 334 (1995) (citations omitted).]

I agree with the analysis of the Court of Appeals, and I would affirm its decision on this issue also.