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Loss of Chance/Opportunity: New Opinion from Michigan

The Michigan Supreme Court came out a few weeks ago with a very interesting opinion in favor of the Plaintiff in a malpractice claim that most likely would fail in Maryland.

The doctor’s malpractice attorneys argued that the allegation that the doctor’s negligence reduced the risk of stroke from 10 to 20 percent to less than 5 to 10 percent was not enough to get the claim to a jury because the loss did not meet the burden of proof on proximate causation. The law booksdoctor argued that Michigan law is whether the opportunity to achieve a better result was greater than 50 percent. Under this law, if the plaintiff could not prove that receiving the alleged appropriate treatment would have decreased his risk of injury by 50%, the plaintiff’s claim would fail.

Thankfully, a divided Michigan high court found that this is not the law and that malpractice cases such as this should be decided under a simple principle: the plaintiff is required to prove that the doctor’s negligence more probably than not caused the plaintiff’s injury.

Regrettably, Maryland goes in a different direction on these types of cases as I have previously discussed. One thing Maryland has Michigan beat on is collegiality among the judges on the court. Battles in the Michigan Supreme Court are both political and personal in a way that would shock Maryland lawyers. Judges quoting political statements made by other judges to the press, the judge that wrote the majority opinion writing separately to refute one judge’s personal attack – if you have no interest in this issue it is worth reading the opinion just to get a taste of what this different world is like.

Another Angle to Approach Loss of Chance

Instead of seeking damages for loss of chance, plaintiffs can argue that there is increased mental anguish in the fear of what might happen in the future.  This differs from loss of chance.  In Exxon v. Mobil Corp. v. Albright, decided in 2013 by the Maryland Court of Appeals, the court found that “recovery for damages for fear of cancer differs from the cause of action of a claim for enhanced or increased risk of disease. Fear of cancer is contemporaneous, but the risk of developing future disease necessitates speculation.” Accordingly, the Maryland high court found that victims may recover emotional distress damages for the fear of getting or exacerbating an illness or disease.

In 2016, in Luecke v. Suesse,  this argument did not fly.  The Court of Appeals honed in on the holding in Fennell v. Southern Maryland Hospital that “loss of chance of survival in itself is not compensable unless and until death ensues.” Fennell v. Southern Maryland Hospital. Center, 320 Md. 776, 790 (1990).  The court specifically rejected the plaintiff’s effort to “rename” loss of chance.

Our Apolitical High Court

The Court of Appeals of Maryland blithely rolls along as a relatively apolitical body. Sure, there are conservative and liberal judges and they vote accordingly on some issues before the court but, it is just not a partisan-charged atmosphere. I think it helps that few issues before the Maryland high court are particularly politically-charged, as cases are before the Supreme Court. The average Marylander does not spend a lot of time thinking about what the Court of Appeals is doing. As we become more divided and more partisan as a society – which I think polls suggest that we are – I wonder if this will one day change and we will look back on 2010 as the glory days. (2019 Update: No, nothing has really changed in Maryland.  The Supreme Court, of course, has grown even more politicized.)

Note: This post was drafted in 2010 and substantially updated in 2019

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