Weymers v. Khera - 454 Mich. 639, 563 N.W.2d 647 (1997)

Rule:

If a court grants summary disposition pursuant to Mich. Ct. R. 2.116(C)(8), (9), or (10), the court must give the parties an opportunity to amend their pleadings pursuant to Mich. Ct. R. 2.118, unless the amendment is futile. Mich. Ct. R. 2.116(I)(5). Mich. Ct. R. 2.118(A)(2) provides that leave to amend a pleading shall be freely given when justice so requires. Under subrule A(3), the court can order the amending party to compensate the opposing party for the additional expense caused by the late amendment, including reasonable attorney fees. A motion to amend ordinarily should be granted, and should be denied only for the following particularized reasons: 1. undue delay, 2. bad faith or dilatory motive on the part of the movant, 3. repeated failure to cure deficiencies by amendments previously allowed, .4 undue prejudice to the opposing party by virtue of allowance of the amendment, and 5. Futility.

Facts:

Plaintiff Kimberly Weymers became ill with coughing, fever, nausea, aching, and chest congestion. Plaintiff was examined in different hospitals by defendant doctors. In the end, none of the defendants saved plaintiff’s kidney functioning, and plaintiff was placed on dialysis. Subsequently, plaintiff filed the present medical malpractice suit. During discovery, plaintiff presented an affidavit by expert witness Dr. Eric Neilson, Chief of the Renal Division of the University of Pennsylvania Hospital, who testified that if defendants had given plaintiff proper care she would have had a thirty to forty percent chance of retaining the function of her kidneys. After discovery was closed, one of defendant hospitals moved for summary judgment pursuant to MCR 2.116(C)(10), arguing that plaintiff had failed to demonstrate that the alleged negligence caused the loss of her kidneys. The other defendants joined the motion. In response to defendants' motion, plaintiff asserted that she could recover for her kidney damage even though there was less than a fifty percent chance that defendants' negligence caused the damage on the basis of the lost opportunity doctrine recognized in Falcon v Memorial Hosp, 436 Mich. 443; 462 N.W.2d 44 (1990). Plaintiff also argued that her damages were not limited to the loss of her kidneys, but also included pain and suffering from her pulmonary injury. Defendants responded that plaintiff had failed to allege damages from her pulmonary injury. The trial court agreed with defendants and granted their motion for summary disposition. The trial court noted that plaintiff had failed to show that it was more probable than not that her kidney failure was caused by defendants' alleged negligence, and refused to extend the lost opportunity doctrine recognized in Falcon, a wrongful death case, to situations in which the injury did not result in death. The trial court further held that plaintiff's claim of pulmonary injury was not sufficiently pleaded in her complaint. Plaintiff subsequently asked the trial court to allow her to amend her complaint to specifically allege pain and suffering from her pulmonary condition. The trial court denied this request. The appellate court reversed the decision of the trial court, holding that the lost opportunity doctrine applied to physical injury less than death. The Court of Appeals also held that the trial court abused its discretion in not allowing plaintiff to amend her complaint because defendants were on notice of plaintiff's claim of pulmonary injury and therefore would not have been "unduly prejudiced" by the amendment. Defendant doctors appealed.

Issue:

1. Did the “lost opportunity doctrine” apply to physical injury less than death?
2. Did the trial court abuse its discretion in not allowing plaintiff to amend her complaint to specifically allege pain and suffering from her pulmonary condition? 

Answer:

1) No. 2) No.

Conclusion:

In reversing the lower appellate court's decision, the Court held that the State of Michigan did not recognize a cause of action for the loss of an opportunity to avoid physical harm less than death. Thus, the trial court properly granted the doctors' summary disposition motion. The Court concluded that the trial court did not abuse its discretion in determining that the patient did not sufficiently plead a claim for pain and suffering from her pulmonary injury or in denying her motion to amend her complaint to add a new claim for pulmonary injury because the doctors demonstrated that they did not have knowledge that the patient intended to rely on the new claim at trial.