## Facts

- Kimberly Weymers sought treatment at a medical clinic in October 1990 for worsening respiratory symptoms and was initially treated with antibiotics.
- After her condition worsened, she returned multiple times; testing revealed severe anemia and she was admitted to intensive care and given blood transfusions.
- Dr. Rheka Khera evaluated her and requested consultation by nephrologist Dr. Gregorio Ferrer, who suspected Goodpasture’s syndrome, initiated treatment, and scheduled a kidney biopsy.
- Weymers’ condition deteriorated and she was transferred to another hospital; efforts to save kidney function failed and she ultimately required a kidney transplant.
- In a malpractice suit, plaintiffs relied on an expert opinion that proper care would have provided a 30–40% chance of retaining kidney function and that kidney loss shortened life expectancy.
- Plaintiffs characterized part of the case as a “loss of opportunity” to avoid worsening injury and sought to assert pain-and-suffering damages from pulmonary injury.

## Issues

1. Whether Michigan recognizes a cause of action for loss of an opportunity to avoid physical harm less than death when the chance of a better outcome is below 50%.
2. Whether the complaint sufficiently pleaded a claim for pain and suffering due to pulmonary injury.
3. Whether the trial court abused its discretion by denying leave to amend the complaint to add a pulmonary-injury pain-and-suffering claim.

## Decision

- The Michigan Supreme Court reversed the Court of Appeals and reinstated summary disposition for the defendant physician.
- The Court held Michigan does not recognize a cause of action for loss of an opportunity to avoid physical harm less than death.
- The Court held the trial court did not abuse its discretion in finding the complaint insufficient to plead pulmonary-injury pain and suffering.
- The Court held the trial court did not abuse its discretion in denying leave to amend to add the pulmonary-injury claim.

## Legal Principles

- In negligence actions, causation generally requires proof by a preponderance of the evidence that the defendant’s negligence was a cause in fact of the injury (i.e., the injury was more likely than not caused by the negligence).
- A reduced probability of a better outcome below 50% is insufficient, by itself, to establish causation for nonfatal physical harm under Michigan law; Michigan does not permit a standalone “loss of opportunity” claim in that context.
- A complaint must provide sufficiently specific allegations to give fair notice of distinct categories of injury and damages; conclusory or generalized pleading may be inadequate.
- Leave to amend is discretionary; a court may deny amendment when the timing and circumstances would prejudice the opposing party, including by introducing a new injury theory requiring additional discovery and expert work.

## Conclusion

Michigan declined to extend any relaxed “lost chance” theory to nonfatal injury claims, required traditional more-probable-than-not causation, and upheld dismissal and denial of amendment where the complaint did not specifically plead a separate pulmonary-injury pain-and-suffering claim and late amendment would be prejudicial.


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