On March 3, 2009, in Lanigan v. Huron Valley Hospital, Inc., No. 279799, the Michigan Court of Appeals held that its analysis of a lost opportunity medical malpractice claim was still governed by Fulton v. William Beaumont Hospital, 253 Mich. App. 70, 655 N.W. 2d 569 (2002), despite the Michigan Supreme Court's unanimous criticism of that decision.
Fulton interprets the sentence in Michigan's medical malpractice statute that provides, "[i]n 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%." MCL ' 600.2912a(2). Fulton concluded that this language means that plaintiffs must demonstrate that their opportunity to survive, or for a better result, was reduced by more than 50% because of the alleged malpractice.
The Lanigan court noted that, in Stone v. Williamson, 482 Mich. 144, 753 N.W. 2d 106 (2008), all the justices of the Michigan Supreme Court expressed a belief that Fulton's analysis of lost opportunity claims was wrong. Nevertheless, the Lanigan court pointed out that the majority of the Supreme Court concluded that the plaintiff's claim in Stone was not a lost opportunity claim, but rather a traditional medical malpractice claim, and that the Fulton analysis was not properly before the Supreme Court. Thus, the Lanigan court found that it was bound to apply Fulton to its review of summary disposition of a lost opportunity claim, regardless of whether it agreed with Fulton's analysis. Notably, the court did not state that it, in fact, disagreed with Fulton.