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Law School Case Brief

Falcon v. Mem'l Hosp. - 436 Mich. 443, 462 N.W.2d 44 (1990)


The injury resulting from medical malpractice is not only, or necessarily, physical harm, but also includes the loss of opportunity of avoiding physical harm. A patient goes to a physician precisely to improve his opportunities of avoiding, ameliorating, or reducing physical harm and pain and suffering. 


Nena Falcon, a 19-year-old woman, gave birth to a healthy baby, J.E.F., in the early morning hours of March 21, 1973. Moments after delivery, Nena coughed, gagged, convulsed, became cyanotic, and suffered a complete respiratory and cardiac collapse. Attempts to revive her were unsuccessful, and she was pronounced dead soon thereafter. The autopsy report indicated that amniotic fluid embolism was the cause of death. Plaintiff Ruby Falcon, Nena's grandmother and the administratrix of Nena's estate, filed a medial malpractice action in Michigan state court against defendants Memorial Hospital, Dr. S.N. Kelso, Jr., and Norma Denny, CRNA. The survival rate of amniotic fluid embolism was, according to Falcon's expert witness, 37.5 percent if an intravenous line was connected to the patient before the onset of the embolism. In Nena's case, an intravenous line had not been established. Thus, Falcon alleged, Dr. Kelso or Nurse Denny had followed the procedures the expert witness claimed should have been followed, Nena would have had a 37.5 percent opportunity of surviving the medical accident that caused her death. The trial court dismissed the complaint because the evidence did not show that Nena probably, defined as more than 50 percent, would have survived if the procedure had not been omitted. On Falcon's appeal, court of appeals reversed the trial court's dismissal, finding that Falcon only had to establish that the omitted procedure had the potential for improving Nena's recovery or preventing the death. The court added that while Falcon had to show some probability that the treatment would have been successful, that probability did not have to be greater than 50 percent. Defendants appealed.


Was Dr. Kelso liable for breach of duty to Nena?




The state supreme court affirmed the appellate court's judgment. The court agreed with the appeals court, holding that with the procedure, Nena had an opportunity of surviving, and thus, Dr. Kelso was liable for the breach of his duty to Nena. The court observed that injury resulting from medical malpractice was not only, or necessarily, physical harm, but also included the loss of opportunity of avoiding physical harm. The court was persuaded that loss of a 37.5 percent opportunity of living constituted a loss of a substantial opportunity of avoiding physical harm. Thus, Falcon was entitled to maintain a survival action against Dr. Kelso, as well as the Hospital and Nurse Denny, for their failure to protect Nena's opportunity to live. The court went on to observe that, at trial, 37.5 percent times the damages recoverable for wrongful death would be an appropriate measure of damages.

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