Weymers v. Khera

563 N.W.2d 647, 454 Mich. 639

• Court: Michigan Supreme Court
• Decided: June 17, 1997
• Docket: 102961, Calendar No. 6
• Status: Published

Opinions

Riley, J.

In this appeal, we address three issues: (1) whether Michigan recognizes a cause of action for the loss of an opportunity to avoid physical harm less than death, (2) whether the trial court abused its discretion in determining that plaintiffs complaint did not sufficiently plead á claim for pain and suffering from her pulmonary injury,¹ and (3) whether the trial court abused its discretion in denying plaintiffs motion to amend her complaint to add a claim for pain and suffering from pulmonary injury. We hold that Michigan does not recognize a causé of action for the loss of an opportunity to avoid physical harm less than death. We also hold that the trial court did not abuse its discretion in ruling that plaintiffs complaint was inadequately specific and in refusing to allow plaintiff to amend her complaint. Accordingly, we reverse the Court of Appeals decision.

FACTS AND PROCEEDINGS

In early October 1990, plaintiff Kimberly Weymers, who was twenty years old, became ill with coughing, fever, nausea, aching, and chest congestion. After her condition did not improve for more than a week, she went to defendant Walled Lake Medical Center where she was initially examined by a physician’s assistant. The physician’s assistant concluded from plaintiff’s symptoms that she suffered from a respiratory infection and gave her antibiotics. After another week, plaintiff returned to the medical center because her symptoms intensified. The physician’s assistant diagnosed plaintiff with pneumonia and sent her home with a stronger prescription of antibiotics. On October 23, 1990, plaintiff visited the medical center a third time because her condition had not improved. A blood sample indicated that plaintiff suffered from severe anemia. Defendant Dr. Frank Fenton, the owner of the medical center, arranged for plaintiff to be admitted to defendant St. Joseph’s Hospital in Pontiac.

On the evening of October 23, 1990, plaintiff was admitted to St. Joseph’s intensive care unit and was given blood transfusions to combat the anemia. On October 24, 1990, defendant Dr. Rheka Khera examined plaintiff and suspected the possibility of a kidney problem and asked defendant Dr. Gregorio Ferrer, a nephrologist,² to examine her. Dr. Ferrer examined her that day and concluded that she could have a rare disease, Goodpasture’s syndrome.³ He began an immunosuppressive therapy⁴ immediately, and scheduled a kidney biopsy for October 25, 1990. Plaintiff initially responded to the treatment, but soon after her condition began to deteriorate. Plaintiffs biopsy was postponed until October 26, 1990, and she was placed on a respirator.

On October 26, 1990, plaintiff was transferred to William Beaumont Hospital in Royal Oak and placed under the care of Dr. Isam Salah. At the time, plaintiff had only ten to fifteen percent of her kidney functions. The biopsy was delayed for another three days. The hospital performed a plasma exchange, but it failed to save plaintiffs kidney functioning.⁵ Plaintiff was placed on dialysis after her kidneys totally failed and eventually underwent a kidney transplant.

On August 16, 1991, plaintiff filed this medical malpractice suit against defendants Drs. Khera, Ferrer, and Fenton, and against Walled Lake Medical Center and St. Joseph Mercy Hospital. 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 functioning of her kidneys. Dr. Neilson noted that plaintiffs life expectancy had been “significantly shortened” as a consequence of the loss of her kidneys, and that she would ultimately suffer a premature death.⁶ After discovery was closed, St. Joseph’s Hospital moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff had failed to demonstrate that the alleged negligence caused the loss of her kidneys.⁷ 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 NW2d 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.⁸ 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.

Plaintiff appealed in the Court of Appeals, which reversed the decision of the trial court, holding that the lost opportunity doctrine applied to physical injury less than death. 210 Mich App 231, 236-237; 533 NW2d 334 (1995). 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 plaintiffs claim of pulmonary injury and therefore would not have been “unduly prejudiced” by the amendment.⁹ Id. at 241.

Defendant Drs. Khera and Ferrer appealed, and this Court granted leave to appeal on May 22, 1996.¹⁰

I. LOST OPPORTUNITY DOCTRINE

A

Defendants brought their summary disposition motion pursuant to MCR 2.116(C)(10). Under that subsection, summary disposition is proper when “[e]xcfept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” In other words, the “court must be satisfied . . . that ‘it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.’ ” Stevens v McLouth Steel Products Corp, 433 Mich 365, 370; 446 NW2d 95 (1989), quoting Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). In making that determination, the court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed by the parties in the light most favorable to the party opposing the motion. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). We review summary disposition decisions de novo. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996).

B

We address whether the Court of Appeals erred in recognizing a cause of action for the loss of an opportunity to avoid physical harm less than death.

Under Michigan medical malpractice law, as part of its prima facie case, a plaintiff must prove that the defendant’s negligence proximately caused the plaintiff’s injuries. MCL 600.2912a; MSA 27A.2912(1); Locke v Pachtman, 446 Mich 216, 222; 521 NW2d 786 (1994). To establish proximate cause, the plaintiff must prove the existence of both cause in fact and legal cause. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). To establish cause in fact,

the plaintiff must present substantial evidence from which a jury may conclude that more likely than not)[¹¹] but for the defendant’s conduct, the plaintiff’s injuries would not have occurred.

* * *

“The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” [Id. at 164-165, quoting Prosser & Keeton, Torts (5th ed), § 41, p 269.][¹²]

To establish legal cause, the plaintiff must show that it was foreseeable that the defendant’s conduct “may create a risk of harm to the victim, and . . . [that] the result of that conduct and intervening causes were foreseeable.” Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977).

The antithesis of proximate cause is the doctrine of lost opportunity. The lost opportunity doctrine allows a plaintiff to recover when the defendant’s negligence possibly, i.e., a probability of fifty percent or less, caused the plaintiff’s injury.¹³ See Reisig, The loss of a chance theory in medical malpractice cases: An overview, 13 Am J Trial Advocacy 1163 (1990). In Falcon, supra at 469-470 (Levin, J., lead opinion), 472-473 (Boyle, J., concurring), this Court adopted the lost opportunity doctrine in wrongful death cases. Our Legislature immediately rejected Falcon and the lost opportunity doctrine. MCL 600.2912a(2); MSA 27A.2912(1)(2).¹⁴ Accordingly, Falcon only applies to causes of action that arose before October 1, 1993. See 1993 PA 78, subsection 4(1) (providing the effective date of the amendment). We do not address the issue raised in Falcon because it is not now before this Court.¹⁵ However, for the reasons that follow, we refuse to extend Falcon. Specifically, we hold that no cause of action exists for the loss of an opportunity to avoid physical harm less than death.¹⁶

C

There are three alternative approaches to the lost opportunity doctrine: (1) the pure lost chance approach, (2) the proportional approach, and (3) the substantial possibility approach. Each approach lowers the standard of causation, with the effect that a plaintiff is allowed to recover without establishing cause in fact.

The pure lost chance approach allows a plaintiff to recover for his injury even 'though it was more likely than not that he would have suffered the injury if the defendant had not been negligent. See Thompson v Sun City Community Hosp, 141 Ariz 597; 688 P2d 605 (1984). The plaintiff only has to show that the defendant’s negligence decreased the plaintiff’s chance, no matter how slight, of avoiding the injury. Id. If the plaintiff makes such a showing, he receives full damages.¹⁷ Id.

The proportional approach is identical to the pure lost chance approach; however, the plaintiff’s recovery is limited to the percent of chance lost multiplied by the total amount of damages that would ordinarily be recovered in that action. McKellips v St Francis Hosp, Inc, 741 P2d 467, 476 (Okla, 1987). For example,

if a patient had forty percent chance of recovering from breast cancer and a negligent physician’s misdiagnosis results in her chances dropping to ten percent, then the plaintiff can recover thirty percent of her total death-related injuries. Thus, if her damages totaled $100,000, the plaintiff could recover $30,000. [Moore, South Carolina rejects the lost-chance doctrine, 48 SC L R 201, 202 (1996).]

The last approach, the substantial possibility-approach, was adopted by this Court in Falcon for wrongful death cases. It also is a variation of the pure lost chance approach. Under this approach, the plaintiff must show that there is a substantial possibility that the defendant’s negligence caused his injury. See Falcon, supra at 469. It is unclear what constitutes a “substantial possibility.” See id. at 470 (holding that a 37.5 percent chance of survival was substantial, but refusing to state what constitutes a threshold showing of substantial). It is clear, however, that it does not have to be more than fifty percent.¹⁸ Id. Thus, the substantial possibility approach is identical to the other approaches to the extent that each approach allows a plaintiff to recover for his injury even though it was more likely than not that he would have suffered the injury if the defendant had not been negligent.¹⁹

d

Turning to the case now before this Court, the Court of Appeals, relying on the substantial possibility approach, extended the lost opportunity doctrine to the loss of a substantial opportunity to avoid any physical harm. The Court justified its decision on the often proffered reason of deterrence:

If the lost opportunity doctrine is limited to cases only involving death, potentially flagrant examples of malpractice could go uncompensated in cases in which the same negligent failure to diagnose or treat results in a lost opportunity to avoid egregious harm, i.e., paralysis or coma. Thus, the deterrent and loss-allocation functions of tort law would be undermined if defendants could escape liability for the effects of negligent conduct that cause demonstrable losses. [210 Mich App 237.]

We acknowledge that the deterrent and loss-allocation functions of tort law are important.²⁰ However, we reject scrapping causation (the bedrock of our tort law) in negligence cases where the injury alleged by the plaintiff is something less than death, for the lost opportunity doctrine’s deterrent effect. As the Texas Supreme Court succinctly stated:

[W]e reject the notion that the enhanced deterrence of the loss of chance approach might be so valuable as to justify scrapping our traditional concepts of causation. If deterrence were the sole value to be served by tort law, we could dispense with the notion of causation altogether and award damages on the basis of negligence alone. [Kramer v Lewisville Memorial Hosp, 858 SW2d 397, 406 (Tex, 1993).]

Furthermore, the South Carolina Supreme Court reflects our sentiments in this regard:

We are persuaded that “the loss of chance doctrine is fundamentally at odds with the requisite degree of medical certitude necessary to establish a causal link between the injury of a patient and the tortious conduct of a physician.” Legal responsibility in this approach is in reality assigned based on the mere possibility that a tortfeasor’s negligence was a cause of the ultimate harm. This formula is contrary to the most basic standards of proof which undergird the tort system. [Jones v Owings, 318 SC 72, 77; 456 SE2d 371 (1995) (emphasis in original, citations omitted).]

Accordingly, because we refuse to discard causation in negligence actions of this kind, we do not recognize a cause of action for the loss of an opportunity to avoid physical harm less than death. Therefore, the Court of Appeals recognition of such a cause of action was in error and is reversed.

H. SPECIFICITY AND AMENDMENT OF PLEADING

Decisions concerning the meaning and scope of pleading, and decisions granting or denying motions to amend pleadings, are within the sound discretion of the trial court and reversal is only appropriate when the trial court abuses that discretion. Dacon v Transue, 441 Mich 315, 328; 490 NW2d 369 (1992); Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 658; 213 NW2d 134 (1973).

We first address whether the trial court abused its discretion in holding that plaintiffs complaint did not sufficiently plead a claim for pain and suffering from her pulmonary injury.

MCR 2.111(B)(1) requires that a complaint be specific enough to reasonably inform the adverse party of the nature of the claims against him. This Court, in Dacon, supra at 329, explained that

[t]Ms rule is designed to avoid two opposite, but equivalent, evils. At one extreme lies the straightjacket of ancient forms of action. Courts would summarily dismiss suits when plaintiffs could not fit the facts into these abstract conceptual packages. At the other extreme lies ambiguous and uninformative pleading. Leaving a defendant to guess upon what grounds plaintiff believes recovery is justified violates basic notions of fair play and substantial justice. Extreme formalism and extreme ambiguity interfere equivalently with the ability of the judicial system to resolve a dispute on the merits. The former leads to dismissal of potentially meritorious claims while the latter undermines a defendant’s opportunity to present a defense. . . . Neither is acceptable.

In medical malpractice actions, a plaintiff must allege, with reasonable definiteness and certainty, every fact necessary to constitute a cause of action. Dacon, supra at 332-333; Simonelli v Cassidy, 336 Mich 635, 644; 59 NW2d 28 (1953). To establish medical malpractice, a plaintiff must establish the following elements: (1) the applicable standard of care, (2) breach of that standard, (3) injury, and (4) proximate causation between the alleged breach and the injury. Locke, supra at 222.

c

Turning to the case before this Court, plaintiff argues that the trial court abused its discretion in determining that her complaint did not sufficiently plead a claim for pain and suffering from her pulmonary injury. We disagree and hold that the trial court did not abuse its discretion.

Plaintiffs first amended complaint was not specific enough to reasonably inform defendants of a claim for pulmonary injury. Paragraph 29, the section of plaintiffs complaint addressing the proximate cause and injury elements of plaintiff’s malpractice claim, did not mention pulmonary injury. Rather, it only addressed the injury of plaintiff’s kidneys:

As a direct and proximate result of the aforementioned acts of negligence and malpractice as described in paragraphs 26 and 28, Plaintiff, Kimberly Weymers, has suffered and continues to suffer severe and grievous injuries and damages, including, but not limited to, the following:

A. Significant medical expenses, past, present and future.

B. Loss of earnings and earning capacity.

C. Severe physical and mental pain and suffering, anxiety, emotional anguish, embarrassment, humiliation and loss of natural enjoyments of life.

D. Permanent loss of all renalp[21] function requiring periodic and frequent dialysis.[²²] [Emphasis added.]

We are not persuaded by plaintiffs argument that the trial court abused its discretion by refusing to recognize that plaintiffs general allegation of pain and suffering encompassed her claim for pulmonary injury. A plaintiff in a malpractice action cannot make a general allegation of pain and suffering and expect the defendant to determine without any guidance from the plaintiff which injury formed the basis of the pain and suffering. See Dacon, supra at 330 (concluding that pleadings that “alleg[e] everything . . . allege [] nothing [and] . . . are not proper under MCR 2.111”). Moreover, unlike plaintiffs claim for pulmonary injury, defendants were on notice of plaintiffs claim for pain and suffering resulting from her kidney failure because plaintiff specifically alleged in paragraph 29 of her complaint that she suffered injury to her kidneys.

The only arguable mention of pulmonary injury in plaintiffs complaint was in the sections addressing defendants Dr. Khera’s and Walled Lake Medical Center’s alleged breach of the standard of care:

Failure [of Dr. Khera] to obtain appropriate consultations in a timely manner, including a nephrology consult and a pulmonary consult. [¶ 32.][²³]

Failure [of Walled Lake Medical Center] to refer Kimberly Weymers for appropriate consultation in light of her presenting [sic] history, signs and symptoms, including a consultation with an internist, pulmonologist or nephrologist. [¶ 28.][²⁴]

We conclude that the trial court did not abuse its discretion in ruling that this hint of pulmonary injury was insufficient to put defendants on notice.²⁵ Thus, the trial court’s determination that plaintiff’s claim for pulmonary injury was not sufficiently pleaded' was not an abuse of discretion.

D

We next address whether the trial court abused its discretion in refusing to allow plaintiff to amend her complaint to include a claim for pain and suffering from her pulmonary injury.

If a court grants summary disposition pursuant to MCR 2.116(C)(8), (9), or (10), the court must give the parties an opportunity to amend their pleadings pursuant to MCR 2.118, unless the amendment would be futile. MCR 2.116(I)(5). MCR 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 . . . .” [Fyke, supra at 656.]

If a trial court denies a motion to amend, it should specifically state on the record the reasons for its decision. Id. at 656-657.

Delay, alone, does not warrant denial of a motion to amend. Fyke, supra at 663-664. However, a court may deny a motion to amend if the delay was in bad faith or if the opposing party suffered actual prejudice as a result. Id. “Prejudice” in this context does not mean that the allowance of the proffered amendment may cause the opposing party to ultimately lose on the merits. Id. at 657. Rather, “prejudice” exists if the amendment would prevent the opposing party from receiving a fair trial, if for example, the opposing party would not be able to properly contest the matter raised in the amendment because important witnesses have died or necessary evidence has been destroyed or lost. Id. at 663.

In Fyke, we suggested that there may be some cases in which the delay is so long and the amendment so substantial that the opposing party would be denied a fair trial by the delay, and therefore be prejudiced:

The litigation may proceed to a point where the opposing party cannot reasonably be expected to defend against the amendment; this is an especially pertinent factor on the eve of, during, or after trial. [Id.]

We reaffirm this principle, but clarify its application. We hold that a trial court may find prejudice when the moving party seeks to add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery is closed, just before trial, and the opposing party shows that he did not have reasonable notice, from any source, that the moving party would rely on the new claim or theory at trial.²⁶ We recognize that parties ought to be afforded great latitude in amending their pleading before trial, however, that interest must be weighed against the parties’ and the public’s interest in the speedy resolution of disputes. As Judge John L. Coffey of the United States Court of Appeals for the Seventh Circuit explained:

While Fed R Civ P 15[²⁷) favors amendments when required by justice, it is not a license for carelessness or gamesmanship. Parties to litigation have an interest in speedy resolution of their disputes without undue expense. Substantive amendments to the complaint just before trial are not to be countenanced and only serve to defeat these interests. The district court must consider the harm when deciding whether to grant leave.

Defense of a new claim obviously will require additional rounds of discovery, in all probability interview of new witnesses, gathering of further evidence, and the identification of appropriate legal arguments. All this necessarily takes time. The parties must have an opportunity for preparation if trial is to be meaningful and clear. Some delay of trial therefore is inevitable — a natural consequence of allowing claims to be brought at all. In this sense, delay alone is not a sufficient basis for refusing an amendment. On the other hand, amendments near the time set for trial may require postponement when the same allegations made earlier would have afforded ample time to prepare without delay. Plaintiff is not entitled to impede justice by imposing even reasonable preparation intervals seriatim. Cf. Ins v Abudu, [485 US 94, 95] 108 S Ct 904, 913; 99 L Ed 2d 90 (1988) (“strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases”). Whether it results from bad faith or mere absentmindedness, a district judge may act to deter such artificial protraction of litigation, and its costs to all concerned, by denying the amendment. Zenith Radio Corp [v Hazeltine Research, Inc], 401 US [321], 330 [91 S Ct 795; 28 L Ed 2d 77 (1971)]; Bohen [v City of East Chicago, Ind], 799 F2d [1180], 1184-1185 [(CA 7, 1986)]. [Feldman v Allegheny Int'l, Inc, 850 F2d 1217, 1225-1226 (CA 7, 1988).]

The United States Court of Appeals for the Sixth Circuit further explained in Priddy v Edelman, 883 F2d 438, 446-447 (CA 6, 1989):

A party is not entitled to wait until the discovery cutoff date has passed and a motion for summary judgment has been filed on the basis of claims asserted in the original complaint before introducing entirely different legal theories in an amended complaint. ... In complex cases such as this one, ... it is particularly likely that drastic amendments on the eve of trial will prejudice the defendants. . . . Putting the defendants “through the time and expense of continued litigation on a new theory, with the possibility of additional discovery, would be manifestly unfair and unduly prejudicial.” [Citations omitted.][²⁸]

E

Turning to the case now before this Court, plaintiff attempted to amend paragraph 29 of her complaint to add the following subparagraph:

Physical and mental pain and suffering resulting from the aggravation of the pulmonary pathology.

Defendants opposed the motion, asserting that they would be prejudiced by the amendment because plaintiff was introducing her claim for pulmonary injury for the first time just before trial was scheduled to begin. The trial court denied plaintiffs motion, focusing on the length of the delay and on defendants’ lack of notice of plaintiff’s new claim:

The Court is satisfied that this is a 1991 case. The Defendants did not have notice that the general damage element of pain and suffering was specific to the damages arising out of pulmonary pathology. Defendants prepared for trial and the Defendants prepared for mediation, the Court is satisfied, due to the loss of renal function. And despite the Plaintiffs contentions, the Court’s [sic] satisfied that the Motion for Amendment of the Complaint, Second Amended Complaint, should be denied, and I do so.

The Court of Appeals reversed the decision of the trial court, holding that it abused its discretion in denying plaintiffs motion to amend because the evidence established that defendants “had notice of potential pulmonary complications and thus would not have been unduly prejudiced . . . 210 Mich App 241. In doing so, the Court of Appeals rejected defendants’ argument that plaintiff’s amendment sought to add a new theory to the case. Id. at 242.

Contrary to the Court of Appeals assertion, we hold that plaintiff’s amendment did seek to introduce a new theory or claim into the case and that defendants did not have reasonable notice that plaintiff would rely on that new theory at trial.

Plaintiff argues that her amendment sought to change the type of damages sought, not add a different claim or theory to the case, and that, therefore, on the basis of Sherrard v Stevens, 176 Mich App 650, 654; 440 NW2d 2 (1988), she was entitled to the amendment. In Sherrard, supra at 655, the Court of Appeals held:

While we note that the amendment came shortly before trial, we also note that the amendment did not raise new factual allegations, but merely claimed new types of damages arising from the same set of factual allegations. Accordingly, we do not believe that the trial court abused its discretion in granting the motion to amend the complaint.

Plaintiff’s argument is unpersuasive because her case is distinguishable from Sherrard. In Sherrard, the plaintiffs sought to amend their legal malpractice complaint to add a prayer for exemplary damages. Plaintiff Weymers, on the other hand, sought to amend her complaint to change the type of injury she claimed was proximately caused by defendants’ negligence.²⁹ Therefore, plaintiffs amendment is more appropriately characterized as raising a new claim or theory, not a new type of damages.

Plaintiffs argument that defendants had reasonable notice of her pulmonary claim is also unpersuasive. Although deposition testimony,³⁰ medical records,³¹ and the mediation summary³² suggested that defendants had knowledge that Goodpasture’s syndrome causes pulmonary injury and that plaintiff suffered such injury, defendants had no notice that plaintiff was intending to assert a claim for pulmonary injury at trial.³³ This distinction is significant. If defendants had no notice that plaintiff was intending to assert an independent claim for pulmonary injury, the brief mention of pulmonary injury during the discovery process cannot reasonably be said to automatically make its later appearance as a claim nonprejudicial against defendants. Given the wide latitude of the discovery rules, see MCR 2.302(B), as far as defendants were concerned, the sporadic mention of pulmonary injury during discovery could have been simply fortuitous.

Plaintiff also relies on Terhaar v Hoekwater, 182 Mich App 747, 752; 452 NW2d 905 (1990), in support of her contention that defendants had reasonable notice of her claim for pulmonary injury. Plaintiff’s reliance on Terhaar is misguided because in Terhaar, unlike the case now before us, the plaintiff not only investigated and pursued her new theory during discovery, she also notified the defendant during discovery that she would pursue that theory at trial.³⁴

Therefore, we conclude that the trial court did not abuse its discretion in denying plaintiffs motion to amend because the amendment sought to introduce a new claim just before trial, after discovery had closed, and defendants demonstrated that they did not have knowledge that plaintiff was intending to rely on the new claim at trial.

CONCLUSION

We conclude that Michigan does 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 defendants’ summary disposition motion. We further conclude that the trial court did not abuse its discretion in determining that plaintiff did not sufficiently plead a claim for pain and suffering from her pulmonary injury. The trial court also did not abuse its discretion in denying plaintiff’s motion to amend her complaint to add a new claim for pulmonary injury. Accordingly, we reverse the Court of Appeals decision.

Mallett, C.J., and Brickley and Weaver, JJ., concurred with Riley, J. Boyle, J., concurred only in the result.

1 For purposes of this appeal, we assume plaintiff suffered pulmonary injury.

2 Nephrology is “the branch of medical science that deals with the kidney.” Random House Webster’s College Dictionary.

3 Goodpasture’s syndrome is

[t]he condition of having glomerulonephritis (a type of kidney disease, but more under glomerulonephritis) associated with hemoptysis (the spitting up of blood). It is generally a fatal disease, and at autopsy the lungs are found to show hemosiderosis (abnormal deposits of iron) or hemorrhage. [2 Schmidt’s Attorney's Dictionary of Medicine, p G-120.]

4 Immunosuppressive therapy is

[t]he treatment of certain diseases (as multiple myeloma, chronic nephritis, autoimmune diseases, allergy) by medicines which suppress the immunity response of the body [Id., n 3 supra, p 1-41.]

5 At the time, St. Joseph’s Hospital was not equipped to provide a plasma exchange.

6 The statements from Dr. Neilson’s September 21, 1993, affidavit were only presented to the court in a motion for reconsideration after the trial court had granted summary disposition in favor of defendants.

7 Before the hearing on the motion, defendants St. Joseph’s Hospital, Walled Lake Medical Center, and Dr. Fenton settled their case with Weymers for approximately $300,000.

8 Plaintiff attached an affidavit by Dr. Eric Neilson which stated, in relevant part:

3. Additionally, I am of the opinion that while a patient at St. Joseph Hospital, Kimberly Weymers suffered extensive pulmonary damage.

4. Specifically, I am of the opinion that the failure of the staff at St. Joseph Hospital to arrange for plasmapheresis therapy [plasma exchange], in a timely manner, resulted in the extensive pulmonary hemorrhage and deterioration.

5. Kimberly Weymers’ pulmonary deterioration resulted in her placement on a ventilator for over two weeks, and she required extensive therapy thereafter.

9 The Court of Appeals did not address the issue whether plaintiff’s complaint sufficiently pleaded a claim for pain and suffering from her pulmonary injury because it found that the trial court abused its discretion in denying plaintiff’s motion to amend her complaint. See id. at 240, n 6.

10 451 Mich 898. On October 30, 1996, this Court dismissed Ferrer’s appeal for failure to pursue.

11 The phrase “more likely than not” means a probability more than fifty percent. Falcon, supra at 450, n 6.

12 See also Jordon v Whiting Corp, 396 Mich 145, 151; 240 NW2d 468 (1976) (“[t]he mere possibility that a defendant’s negligence may have been the cause, either theoretical or conjectural, of an accident is not sufficient to establish a causal link between the two”); Glinski v Szylling, 358 Mich 182, 201-202; 99 NW2d 637 (1959) (“[a]'case cannot go to a jury supported merely by sheer speculation that something might have been a cause, or, going one step further, that there was a possibility that something was the cause”); Daigneau v Young, 349 Mich 632, 636; 85 NW2d 88 (1957) (“ ‘[t]here must be more than a mere possibility that unreasonable conduct of the defendant caused the injury’ ”).

13 Stated another way, the lost opportunity doctrine permits a plaintiff to maintain an action for malpractice when, the malpractice denied the plaintiff an opportunity to avoid the injury, even where the opportunity was fifty percent or less.

14 Subsection 2912a(2) provides:

In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.

15 Plaintiff’s argument that her case falls within Falcon because defendants’ negligence will likely lead to a premature death is unpersuasive because plaintiff’s claim was for injury to her kidneys, it was not for wrongful death.

16 Although the case before us is a medical malpractice action, we note that our holding applies to all negligence actions. However, our decision today does not affect the situation where the inextricable combination of joint tortfeasors combines to cause harm in a manner where individual responsibility cannot be fixed. Thus, where several factors combine to produce an injury, and where any one of them, operating alone, would have been sufficient to cause the harm, a plaintiff may establish factual causation by showing that the defendant’s actions, more likely than not, were a “substantial factor” in producing a plaintiff’s injuries. Brisboy v Fibreboard Corp, 429 Mich 540, 547; 418 NW2d 650 (1988). See also Prosser & Keeton, supra, § 41, p 266. These situations are distinguishable from the lost opportunity doctrine because liability is fastened only after a judicial determination that the plaintiff’s injuries were caused by someone, but proof of that responsibility is impossible. In lost opportunity cases, the preponderance of the evidence suggests that no known person was at fault.

17 Only five states follow this extreme approach. See Moore, South Carolina rejects the lost chance doctrine, 48 SC L R 201, 207 (1996), citing Thompson, supra; Gooding v Univ Hosp Bldg, Inc, 445 So 2d 1015 (Fla, 1984); Hastings v Baton Rouge Gen’l Hosp, 498 So 2d 713 (La, 1986); Hamil v Bashline, 481 Pa 256; 392 A2d 1280 (1978); Thornton v CAMC, 172 W Va 360; 305 SE2d 316 (1983).

18 Furthermore, this Court in Falcon, supra at 471, combined the substantial possibility approach with the proportional approach and reduced the damage award to reflect the percentage of chance lost.

19 In Falcon, supra at 469, this Court defined the injury as the loss of opportunity to avoid the harm, i.e., the death, rather than the harm itself. Redefining the injury, however, does not solve the causation problem:

Whether the court lowers the standard of causation or redefines the injury as a lost chance, the result is the same in that a plaintiff receives compensation despite the greater probability that he or she would have suffered the injury even if the physician had used due care. [Moore, Lost chance doctrine, n 17 supra at 206-207.]

20 Professor Joseph H. King, Jr., championed the deterrence argument for the lost opportunity doctrine in his article, Causation, valuation, and chance in personal injury torts involving preexisting conditions and future consequences, 90 Yale L J 1353, 1377 (1981):

The all-or-nothing approach to loss of a chance also subverts the deterrence objectives of tort law by denying recovery for the effects of conduct that causes statistically demonstrable losses. By placing such losses outside tort law, the all-or-nothing approach distorts the loss-assigning role of that law. Over the universe of such cases, losses of chances of avoiding both the adverse effects of a preexisting condition and the occurrence of future consequences of an injury represent actual losses. We can be statistically certain, for example, that a number of patients with probably (but not necessarily) fatal preexisting conditions would have achieved the hoped-for cure in the absence of the tortious conduct, even if none individually had a better-than-even chance of doing so. A failure to allocate the costs of these losses to their tortious sources undermines the whole range of functions served by the causation-valuation process and strikes at the integrity of the torts system of loss allocation.

21 Renal is defined as “of or pertaining to the kidneys or the surrounding regions.” Random House Dictionary, n 2 supra.

22 Furthermore, the first section of the complaint, which set forth the general allegations with regard to all defendants, indicated that the asserted injury was limited to plaintiff’s kidneys:

19. Defendant, Dr. Rheka Khera’s admitting differential diagnosis included Goodpastures [sic] Syndrome.

20. On or about October 25, 1990, Defendant, Dr. Rheka Khera requested a consultation from Defendant, Dr. Gregorio Ferrer, a nephrologist, and the consultation was performed on that date.

21. Defendant, Dr. Gregorio Ferrer, also reached the impression of Goodpastures Syndrome, ordered the administration of steroid therapy and planned to perform a kidney biopsy the next day.

22. On October 26, 1990, before the kidney biopsy was performed, Kimberly Weymers was transferred to Beaumont Hospital in Royal Oak where she was admitted.

23. Plaintiff, Kimberly Weymers, remained hospitalized at Beaumont Hospital until November 20, 1990. During her confinement, she was diagnosed as having and was treated for Goodpastures Syndrome.

Similarly, the section of the complaint setting forth the applicable standards of care did not mention pulmonary medicine. The standards of care were as follows:

(1) Walled Lake Medical Center had the duty to provide plaintiff with the “standards of care applicable to physicians specializing in the field of family practice” (¶¶ 25, 27);

(2) Khera had the duty to provide plaintiff with the “standards of practice applicable to physicians who have specialized in the field of internal medicine” (¶ 31); and

(3) Ferrer had the duty to provide plaintiff with the “standards of practice applicable to physicians specializing in the field of internal medicine and nephrology” (¶ 35).

23 The significance of this allegation was diluted, however, because the next paragraph stated that plaintiff suffered the injuries mentioned in paragraph 29 of the complaint (which discusses kidney damage) as a proximate cause of the breach. See ¶ 33.

24 We note that the paragraph discussing defendant Dr. Ferrer’s alleged breach of duty suggests that the injury suffered was kidney failure:

Failure to promptly and timely perform a kidney biopsy, resulting in a delay in the proper management of Plaintiff’s condition. [¶ 36.]

25 For similar reasons, plaintiff’s argument that her claim for pulmonary injury was sufficiently alleged because the nature of Goodpasture’s syndrome is that it results in pulmonary hemorrhage and kidney damage is unpersuasive. It should not need repeating that a complaint alleging malpractice must state with reasonable specificity and certainty the facts necessary to establish the cause of action. See Dacon, supra at 332-333.

26 We note the distinction between the strict requirements for amendment at trial of MCR 2.118(C)(2) and the free amendment rule of MCR 2.118(A)(2). However, MCR 2.118(A)(2) is not limitless. Under MCR 2.118(A)(2), the proposed amendment should be granted unless the party opposing the amendment shows that one of the five particularized reasons specified in Fyke, supra at 656, which includes prejudice, exists.

27 MCR 2.118 is based on GCR 1963, 118. GCR 1963, 118 “is an adoption of Federal Rule 15.” LaBar v Cooper, 376 Mich 401, 405; 137 NW2d 136 (1965). Further, this Court has been guided by federal precedent in this area See Fyke, supra at 656. Rule 15(a) of the Federal Rules of Civil Procedure provides, in relevant part:

[A] party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

Furthermore, federal courts are permitted to deny a motion to amend a pleading only if one of the five particularized reasons stated in Fyke, supra at 656, exists. See Foman v Davis, 371 US 178, 182; 83 S Ct 227; 9 L Ed 2d 222 (1962):

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, under prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.”

28 See also Acri v Int’l Ass’n of Machinists & Aerospace Workers, 781 F2d 1393, 1398 (CA 9, 1986); Stein v United Artists Corp, 691 F2d 885, 898 (CA 9, 1982); Addington v Farmer’s Elevator Mut Ins Co, 650 F2d 663, 666-667 (CA 5, 1981).

29 Thus, plaintiff’s amendment requested the court to change two of the four elements of her malpractice action — proximate cause and injury. Plaintiff would have to reestablish the proximate cause element by changing the injury element because the elements are interdependent. In other words, if a plaintiff is required to prove a new injury, she must, by definition, reestablish proximate cause.

30 Defendants’ questioning of plaintiff’s expert witness, Dr. Eric Neilson, is illustrative of their knowledge that Goodpasture’s syndrome attacks the lungs and that plaintiff suffered lung damage:

Q. Doctor, I’d like to talk a little bit about what Goodpasture’s syndrome is. It’s my understanding it’s an autoimmune disorder characterized by antiglomerular antibodies which attack the basement membranes of the lung and kidney; would that be correct?

A. Yes.

Q. . . . The diagnosis of Goodpasture’s is differentiated between other diseases which attack — attack the renal system in that it manifests itself both in the lungs and in the kidneys; correct?

A. Yes, there are groups of diseases that affect both the lung and the kidneys; simply that’s one of them.

* ** *

Q. Doctor, is there evidence that her [plaintiffs] lung hemorrhage got worse because she became ventilator dependent; is that the evidence?

A. No, I think her lung hemorrhage became more profound because she was in the middle of a very active disease .and it wasn’t treated.

Q. Okay. I am not asking if the ventilator caused or contributed to the lung hemorrhage, I want to know what evidence there is in the chart that the lung hemorrhage got worse from the time . . .

A. Her chest x-rays looked worse and the fact she was not able to ventilate herself suggested she had great difficulty in doing it on her own.

31 For instance, defendant Dr. Khera acknowledged in plaintiff’s pulmonary discharge summary that “[t]he patient ended up being on a respirator . . . .” Also, plaintiff’s medical records from William Beaumont Hospital state that plaintiff was on a respirator for two weeks: "For the respiratory failure, patient was being ventilated from Oct. 26, 1990 in Beaumont Hospital to Nov. 10, 1990.”

32 Plaintiffs mediation summary states that Goodpasture’s syndrome is believed to be a combination of diseases which attacks the lungs and kidneys.

33 In fact, in response to defendants’ interrogatory requesting plaintiff to “state specifically and in detail how the alleged negligence is causally related to the injury,” plaintiff replied:

Early diagnosis of Good Pasture [sic] Syndrome would have resulted in earlier initiation of therapy and would have prevented complete destruction of kidney function.

34 The plaintiff in Terhaar initially brought a medical malpractice action, alleging that the defendant was “negligent during a wisdom tooth extraction which allegedly resulted in paresthesia, or numbness, to her jaw.” Id. at 749. However, during discovery, both parties investigated whether the defendant had properly advised the plaintiff before the extraction of possible complications. Id. The plaintiff also indicated in her mediation summary that “she would pursue a theory of lack of informed consent.” Id. Furthermore, the plaintiff’s initial complaint even suggested that she would be pursuing that theory:

“On November 6, 1984, Defendant breached his duty to Plaintiff and was guilty of one or more of the following careless, negligent, and improper acts and/or omissions:

* ** *

“(f) Failure to examine, evaluate, treat and advise Plaintiff as any reasonably careful and prudent dentist in the same situation.” [Terhaar, supra at 749.]

In fact, the Court of Appeals held that “[defendant would not have been prejudiced by the amendment because he had notice of the generalized allegation of inadequate advice in paragraph seven, subsection (f) of plaintiff’s original complaint.” Id. at 752.

The plaintiff sought to amend her complaint to add the theory of lack of informed consent just before trial. The trial court denied the plaintiff’s motion, and the Court of Appeals reversed, holding that the defendant had reasonable notice of the plaintiff’s lack of informed consent claim. Id. at 752.