The Supreme Court has granted oral argument on an application in a medical malpractice case to consider the Court of Appeals’ majority ruling that speculative injuries can be the basis for damages in a medical malpractice case. The Court specifically requests the litigants to brief and address whether the Court of Appeals’ majority ruling is contrary to the rule enunciated by the Court in Henry v. Dow Chemical, 473 Mich 63 (2005), which held that residents could not recover for damages associated with environmental contamination, where future injuries from such contamination were, at best, speculative.
The Court also requests the parties to consider whether the Court of Appeals’ majority properly applied Sutter v. Biggs, 377 Mich. 80 (1966), which addressed the foreseeability of damages in a medical malpractice action. In the latter case, the Court held that a doctor’s mistaken and negligent removal of one of the plaintiff’s fallopian tubes when she was 10 during an appendectomy could not serve as the basis for a claim where the plaintiff’s other fallopian tube was intentionally removed in a surgery when she was 19. The plaintiff’s cause of action against the first doctor was based on the theory that had he not negligently performed the appendectomy, at least one of her fallopian tubes would have been present after the second sugery was performed years later. The Court of Appeals’ majority here dismisses the view that in cases where there are dual functioning organs, a doctor’s removal of one does not give rise to a cause of action because of the potential for greater future harm due to the additional risk associated with having only one functional organ.
The Court of Appeals majority and dissent agreed that insufficient expert testimony was provided to establish the standard of care against the defendant hospital concerning the standard applicable to delivery of radiology results.
The Supreme Court appears to be only concerned here with the issues concerning speculative damages and causation.
The Court has invited amicus briefing from the Michigan Association of Justice and Michigan Defense Trial Counsel.
Here is the Supreme Court’s Order: Supreme Court Order OA on App in Huddleston
Read the COA’s Opinion here: Huddleston