Medical Malpractice Claim, Not Lost Opportunity Case

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…, Michigan Appellate Court Holds Cancer Death Case Was Medical Malpractice Claim, Not Lost Opportunity Case, Dec 2022


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.”


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.


“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 appellate court said in it’s ruling.


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