MELISSA KLEIN V BRONSON HOSPITALAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
MELISSA KLEIN, as Personal Representative of
the Estate of MATTHEW CONKLIN, Deceased,
January 11, 2005
Kalamazoo Circuit Court
LC No. 00-000534-NH
RICHARD KIK, JR., M.D.,
BRONSON HOSPITAL d/b/a BRONSON
MEDICAL HEALTH CENTER,
Official Reported Version
Before: Smolenski, P.J., and Saad and Bandstra, JJ.
Defendant Richard Kik, Jr., M.D., appeals by leave granted the trial court's decision
denying summary disposition. The only issue on appeal is whether the court erred in refusing to
apply the causation requirement of MCL 600.2912a(2) to plaintiff 's medical malpractice claim.
We find that the court so erred and, pursuant to this Court's interpretation of MCL 600.2912a(2)
in Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002), we reverse in
We do not disturb that portion of the order denying summary disposition to defendant Bronson
Hospital regarding its vicarious liability argument. We note that our decision is of no direct
consequence to Bronson Hospital because it settled with plaintiff.
Plaintiff Melissa Klein brought this wrongful death action as personal representative of
the estate of Matthew Conklin (decedent). The decedent received treatment on or around March
30, 1998, at Westside Family Medical Center, the place of employment of defendant Dr. Richard
Kik, Jr. Plaintiff alleges that a physician's assistant under the supervision of defendant
misdiagnosed the decedent, who complained of severe respiratory problems and pain in his lower
chest and back. The assistant did not order a chest x-ray and treated the decedent for
bronchitis/sinusitis or pneumonia. The decedent actually had Ewings sarcoma, a rare form of
lung cancer. He returned to defendant's office and was given a chest x-ray on July 14, 1998.
The x-ray revealed fluid in his right thorax, which prompted defendant to send the decedent to
the emergency room. Subsequent testing confirmed the presence of cancer, which claimed the
decedent's life at the age of twenty-two on July 2, 2000, after several rounds of chemotherapy
and radiation treatment. Plaintiff 's claim and defendant's liability hinge on the significance of
the delay in discovering the cancer between March 30 and July 14 in 1998.
Bronson Hospital, a codefendant that later settled the case, moved for summary
disposition under MCR 2.116(C)(10) on the ground that plaintiff could not establish that the
decedent had a fifty percent opportunity to survive, as required by MCL 600.2912a(2).
Defendant concurred. The trial court denied the motion in a written order that reads, in part:
[Bronson Hospital] contends that Plaintiff is required to prove that his
opportunity to achieve a better result was reduced by more than 50% as a result of
Defendant's alleged malpractice. However, since on its face this does not appear
to be an action for a lost opportunity to achieve a better result, pursuant to MCL
600.2912a(2), and the Plaintiff has agreed to strike any language from the
pleadings that allege a cause of action for lost opportunity, the court considers this
This Court granted defendant's motion for leave to appeal and, on its own motion, stayed further
proceedings in the lower court. For the reasons stated below, the trial court's order is reversed
with respect to the section entitled "Lost Opportunity." Defendant is entitled to summary
disposition on this issue because application of MCL 600.2912a(2) precludes recovery by
plaintiff in this case.
II. Standard of Review
This Court reviews de novo a circuit court's decision denying summary disposition.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Summary disposition of all or
part of a claim or defense may be granted 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." MCR 2.116(C)(10). A motion for summary disposition under
MCR 2.1116(C)(10) challenges the factual sufficiency of the complaint. Corley v Detroit Bd of
Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The court must consider all pleadings,
depositions, admissions and other documentary evidence in the light most favorable to the
nonmoving party. Id.
To have a cause of action for medical malpractice, a plaintiff must establish that the
defendant's malpractice was the proximate cause of plaintiff 's injury. Weymers v Khera, 454
Mich 639, 655; 563 NW2d 647 (1997). This common-law element is codified in MCL
600.2912a(2), which states:
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%.
The issue in Fulton was "whether the second sentence of the statute requires a plaintiff in order
to recover for loss of an opportunity to survive to show only that the initial opportunity to
survive before the alleged malpractice was greater than fifty percent . . . or, instead, that the
opportunity to survive was reduced by greater than fifty percent because of the alleged
malpractice . . . ." Id. at 77-78. The majority in Fulton held that the second sentence of the
statute meant that a plaintiff must show that the opportunity to survive was reduced by greater
than fifty percent because of the alleged malpractice. Id. at 83. We are bound to follow the
majority's conclusion. MCR 7.215(J)(1). See also Ensink v Mecosta Co Gen Hosp, 262 Mich
App 518, 532; 687 NW2d 143 (2004) (The Court agreed with the Fulton dissent and followed
the majority's interpretation only because it was bound to do so.). Therefore, in this case, MCL
600.2912a(2) requires plaintiff to show that the decedent's chances of survival fell more than
fifty percent between the time of defendant's alleged malpractice on or around March 30, 1998,
and the initial discovery of the decedent's lung cancer on July 14, 1998.
The trial court erroneously concluded that plaintiff 's complaint stated a cause of action
separate from loss of opportunity after plaintiff agreed to strike the paragraph in her complaint
that specifically referred to lost opportunity. The complaint states that this is "a medical
malpractice, wrongful death action . . . ." On appeal, plaintiff asserts that her claim is that
defendant's negligence caused the decedent's death, with death being the injury. But regardless
of plaintiff 's word choice, the gravamen of plaintiff 's complaint remains a cause of action for
lost opportunity to survive brought on the basis of defendant's alleged medical malpractice. The
present injury that defendant's malpractice allegedly caused was not the decedent's death per se,
as plaintiff argues, but the increased chance of death between decedent's two visits to defendant's
medical office. In other words, plaintiff is not alleging that defendant somehow gave the
decedent cancer or acted in some other negligent manner that caused the decedent to die; rather,
plaintiff alleges that defendant hastened the decedent's death as a result of the latter being
misdiagnosed, which allowed the cancer to metastasize unabated for 3 1/2 months. Plaintiff 's
attempt to distinguish the decedent's injury from his loss of opportunity to survive is futile
because they are one and the same. To say in this case that defendant caused the decedent's
injury is to say that defendant's malpractice deprived the decedent of a greater chance to survive,
which necessitates application of MCL 600.2912a(2) as interpreted in Fulton.
Plaintiff 's argument that MCL 600.2912a(2) only applies to a living victim and not to a
wrongful death action is without merit. Our Supreme Court has clearly stated that a living
plaintiff may not recover for loss of an opportunity to survive because the intent of the statute is
to allow recovery for a present injury, not a potential one. Wickens v Oakwood Healthcare Sys,
465 Mich 53, 59-60; 631 NW2d 686 (2001). As discussed above, the decedent's present injury
was his untimely death. Therefore, MCL 600.2912a(2) is applicable.
Although the trial court did not address the merits of whether plaintiff could maintain a
cause of action in light of § 2912a, we find a remand is not necessary because the facts on the
record are sufficient to resolve this issue. Viewed in the light most favorable to plaintiff, the
documentary evidence shows that plaintiff cannot satisfy MCL 600.2912a(2). Dr. Gregory
Reamon, plaintiff 's sole medical expert, testified that, assuming the best circumstances
(confinement of the cancer to the chest wall with no microscopic spreading and complete
surgical removal followed with chemotherapy), the decedent's chances of survival in March 1998
were seventy-five percent. Assuming the worst on July 14, 1998, the decedent's chances of
survival were thirty percent. The difference is forty-five percent, which is below what MCL
600.2912a(2) requires as interpreted by the Fulton majority. Accordingly, plaintiff is precluded
from maintaining her action and the trial court erred in not granting summary disposition on this
Reamon's subsequent statements do not change this result. Six months after his
deposition, Reamon stated in a sworn affidavit that the decedent's cancer should have been
diagnosed in March 1998, and if it had, the decedent would have more likely than not survived
disease free. As a matter of law, "parties may not contrive factual issues merely by asserting the
contrary in an affidavit after having given damaging testimony in a deposition." Dykes v William
Beaumont Hosp, 246 Mich App 471, 480; 633 NW2d 440 (2001) (citations and quotation marks
omitted). Furthermore, because the affidavit did not explain how much more the decedent's
opportunity for survival would have been, a comparison cannot be made to Reamon's thirty
percent figure for the decedent's worst chance of survival after misdiagnosis and subsequent
discovery, which was left unchanged. In other words, stating that defendant would have more
likely than not lived had he been diagnosed in March 1998 does not mean that his chances for
survival decreased by more than fifty percent as a result of defendant's alleged malpractice.
Plaintiff argues that, even if MCL 600.2912a is applicable, this cause of action meets the
requirement of the statute because at the time of the decedent's death his chances of survival
were zero. This argument is unavailing. The chances of survival at the time of death are
irrelevant to the Fulton rule. What matters is the reduction of those chances because of the
alleged malpractice. The critical points in time are the alleged misdiagnosis in late March 1998
and the beginning of the proper diagnosis on July 14, 1998. Under the best circumstances for
plaintiff 's claim and according to plaintiff 's own expert, the delay of 3 1/2 months reduced the
decedent's chances of survival by forty-five percent.
Additionally, plaintiff 's contention that interpreting the second sentence of MCL
600.1292a(2) to apply to this case renders the first sentence mere surplusage is not persuasive.
One can envision medical malpractice cases, including wrongful death cases, that still fall under
the first sentence. They are cases, unlike this one, that do not allege lost opportunity, but allege a
direct injury—e.g., amputating the wrong limb, negligently severing a vital blood vessel,
administering too much anesthesia, etc. Again, in the case at bar, the only causal theory
connecting defendant to the decedent's death is that the delay in diagnosis exacerbated the
decedent's condition and deprived him of the chance he would have had to survive if he had been
properly diagnosed in March 1998.
Reversed in part.
/s/ Michael R. Smolenski
/s/ Henry William Saad
/s/ Richard A. Bandstra