Cancer Death Case Was Medical Malpractice: The Court of Appeals of the State of Michigan (“Michigan Appellate Court”) stated in its September 8, 2022 opinion: “The dispositive question in this medical malpractice case is whether plaintiff’s claim is a traditional medical malpractice claim or one that involves a lost opportunity to achieve a better result. Plaintiff, the Estate of Patricia Benigni, alleges that defendants Samir Alsawah, M.D., and Huron Medical Center (HMC) failed to timely diagnose Patricia’s recurrence of colorectal cancer, causing Patricia to suffer adverse sequela, including death. The Estate alleged that as a direct and proximate result of defendants’ negligence, Patricia’s undiagnosed cancer metastasized. Catching the recurrence earlier would have given Patricia a better prognosis, including survival and a cure.”
“In the summary disposition proceedings, both parties and the trial court characterized this case as a “lost opportunity case,” implicating the second sentence of MCL 600.2912(a)(2). This was error. Because Patricia actually suffered an adverse result (in this case death), this is a traditional medical malpractice case, not one for lost opportunity. We therefore reverse the trial court order granting summary disposition and remand this case to the trial court to determine whether the Estate can establish proximate causation under traditional malpractice principles.”
The trial court framed the issue as “whether an alleged delayed diagnosis of [Patricia’s] metastatic cancer decreased her opportunity to survive by more than 50%.” The trial court concluded that there was no evidence that Patricia’s opportunity to survive was reduced by 50% as a result of Dr. Alsawah’s alleged malpractice and granted summary disposition as a result.
Michigan Appellate Court Opinion
The Michigan Appellate Court stated: “Contrary to the statement of the case by both parties and the trial court, the facts of this case present a claim for traditional medical malpractice, not one for loss-of-opportunity to survive or achieve a better result. The statute at the heart of this case is MCL 600.2912a(2), which 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%.””
“The parties and the trial court have focused their arguments on whether Patricia lost an opportunity to survive greater than 50 percent. These arguments, however, are inapposite. Based on [Michigan] Supreme Court precedent, this case does not present a claim for loss-of-opportunity to achieve a better result … In this case, it is undisputed that Patricia died as a result of the metastasized colorectal cancer which, undiagnosed, progressed to the point that there was no curative surgical option available. It is also alleged that Dr. Alsawah’s failure to properly investigate the elevated CEA levels and catch the recurrence of cancer sooner was the cause of the disease progressing to this level. An earlier diagnosis would have given Patricia the option for curative surgery and increased her chance of a cure and survival. Because Patricia died as a result of the alleged negligence in delayed diagnosis, this is a claim for traditional malpractice, not one for loss-of-opportunity.”
The Michigan Appellate Court concluded: “Because Patricia actually suffered an adverse result (in this case death), this is a traditional medical malpractice case, not one for lost opportunity. We therefore reverse the trial court order granting summary disposition and remand this case to the trial court to determine whether there is a question of material fact as to proximate causation under traditional malpractice principles. If so, the issue is one for the jury. If not, the Court shall make the determination.”
Source Estate of Patricia Benigni v. Samir Alsawah, M.D., COA 357033.
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