MARGARET JENKINS V JAYESH KUMAR PATEL
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 26, 2004
MARGARET JENKINS, as Personal
Representative of the ESTATE OF
MATTIE HOWARD, DECEASED,
Plaintiff-Appellee,
o. 123957
N
v
JAYESH KUMAR PATEL, M.D., and
COMPREHENSIVE HEALTH SERVICES,
INC., a Michigan Corporation,
doing businsess as THE WELLNESS
PLAN, Jointly and Severally,
Defendants-Appellants.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to consider whether the
medical
malpractice
noneconomic
damages
cap,
MCL
600.1483(1), applies to a wrongful death action where the
underlying claim is medical malpractice.
The jury awarded
plaintiff $10 million in noneconomic damages.
The trial
court denied defendants’ motion for remittitur or a new
trial, concluding that the medical malpractice noneconomic
damages cap does not apply to wrongful death actions.
Court of Appeals affirmed.
The
Because we conclude that the
medical malpractice noneconomic damages cap does apply to
wrongful
death
actions
where
the
underlying
claim
is
medical malpractice, we reverse the judgment of the Court
of Appeals and remand this case to the Court of Appeals for
consideration
of
the
constitutional
issues
raised
by
plaintiff that were not resolved by the Court of Appeals in
light of its analysis of the statutory issue.
I. FACTS
AND
PROCEDURAL HISTORY
Plaintiff brought this wrongful death action against
defendants, seeking to recover damages for the death of her
mother
that
allegedly
malpractice.
resulted
Plaintiff’s
from
decedent
defendants’
began
medical
treating
with
defendant Dr. Jayesh Patel shortly after being hospitalized
for
a
stroke.
negligently
Plaintiff
managed
the
contends
decedent’s
that
renal
Dr.
Patel
disease
hypertension, which ultimately led to her death.
and
Plaintiff
sought damages for the loss of society and companionship
sustained
siblings.
by
the
The
decedent’s
jury
awarded
seven
children
plaintiff
$10
and
seven
million
in
noneconomic damages.
Defendants filed a motion for remittitur or for a new
trial,
arguing
that
the
medical
2
malpractice
noneconomic
damages cap, MCL 600.1483(1), requires a reduction in the
damage award, and, in the alternative, that the award is
excessive.
malpractice
The
trial
noneconomic
wrongful death actions.
court
held
damages
cap
that
does
the
not
medical
apply
to
The trial judge further held that,
although the award is excessive, he could not determine an
appropriate amount of damages because he was not personally
present at the trial to hear the testimony of the witnesses
and judge their credibility.1
$10 million verdict stand.
Therefore, he let the jury’s
In a published decision, the
Court of Appeals affirmed the trial court’s decision that
the medical malpractice noneconomic damages cap does not
apply to wrongful death actions.2
The Court of Appeals,
however, remanded the case to the trial court, holding that
the trial court, having found the award to be excessive,
must either set a remittitur amount or grant a new trial on
damages only.3
One of the judges on the panel wrote a
1
The judge who presided over the jury trial was
subsequently appointed to a federal judicial position and
was no longer on the trial court at the time the motion for
remittitur or for a new trial was heard.
2
256 Mich App 112; 662 NW2d 453 (2003).
3
The Court of Appeals further instructed the trial
court that it could revisit its ruling concerning whether
the verdict was excessive if it acknowledged that its
(continued…)
3
concurring
opinion
to
emphasize
her
belief
that
the
language of the wrongful death act precludes application of
the
medical
malpractice
noneconomic
damages
cap.
We
granted defendants’ application for leave to appeal.4
II.
Whether
the
medical
STANDARD
OF
REVIEW
malpractice
noneconomic
damages
cap, MCL 600.1483(1), applies to a wrongful death action
where the underlying claim is medical malpractice is an
issue of statutory interpretation, which is a question of
law that this Court reviews de novo.
Morales v Auto-Owners
Ins Co, (After Remand), 469 Mich 487, 490; 672 NW2d 849
(2003).
III. ANALYSIS
MCL
600.1483,
also
referred
to
as
the
medical
malpractice noneconomic damages cap, provides, in pertinent
part:
(1) In an action for damages alleging
medical malpractice by or against a person or
party,
the
total
amount
of
damages
for
noneconomic loss recoverable by all plaintiffs,
resulting from the negligence of all defendants,
shall not exceed $280,000.00 unless, as the
result of the negligence of 1 or more of the
defendants, 1 or more of the following exceptions
(…continued)
previous ruling was "nondefinitive" in light of its concern
at the time that it had not been present at trial.
4
469 Mich 958 (2003).
4
apply as determined by the court pursuant to
section
6304,
in
which
case
damages
for
noneconomic loss shall not exceed $500,000.00:
(a) The plaintiff is hemiplegic, paraplegic,
or quadriplegic resulting in a total permanent
functional loss of 1 or more limbs caused by 1 or
more of the following:
(i) Injury to the brain.
(ii) Injury to the spinal cord.
(b) The plaintiff has permanently impaired
cognitive capacity rendering him or her incapable
of making independent, responsible life decisions
and
permanently
incapable
of
independently
performing
the
activities
of
normal,
daily
living.
(c) There has been permanent loss of or
damage to a reproductive organ resulting in the
inability to procreate.
(2) In awarding damages in an action
alleging medical malpractice, the trier of fact
shall itemize damages into damages for economic
loss and damages for noneconomic loss.
(3) As used in this section, “noneconomic
loss” means damages or loss due to pain,
suffering, inconvenience, physical impairment,
physical disfigurement, or other noneconomic
loss.
The
wrongful
death
act,
MCL
600.2922,
provides,
pertinent part:
(1) Whenever the death of a person or
injuries resulting in death shall be caused by
wrongful act, neglect, or fault of another, and
the act, neglect, or fault is such as would, if
death had not ensured, have entitled the party
injured to maintain an action and recover
damages, the person who or the corporation that
would have been liable, if death had not ensued,
5
in
shall be liable to an action for damages,
notwithstanding the death of the person injured,
and
although
the
death
was
caused
under
circumstances that constitute a felony.
(2) Every action under this section shall be
brought by, and in the name of, the personal
representative of the estate of the deceased
person . . . .
* * *
(6) In every action under this section, the
court or jury may award damages as the court or
jury shall consider fair and equitable, under all
the circumstances including reasonable medical,
hospital, funeral, and burial expenses for which
the estate is liable; reasonable compensation for
the
pain
and
suffering,
while
conscious,
undergone by the deceased person during the
period intervening between the time of the injury
and death; and damages for the loss of financial
support
and
the
loss
of
the
society
and
companionship of the deceased.
There is no common-law right to recover damages for a
wrongfully caused death.
Instead, the wrongful death act
provides the exclusive remedy under which a plaintiff may
seek damages for a wrongfully caused death.
Apple, 345 Mich 223, 228; 76 NW2d 80 (1956).
Courtney v
That does not
mean, however, that the wrongful death act is the only act
that
is
applicable
in
a
wrongful
death
action.
For
instance, the medical malpractice statute of limitations,
MCL 600.5838a, applies to wrongful death actions where the
underlying
actions
claim
brought
is
medical
under
the
malpractice
wrongful
6
because
death
“in
all
statute,
the
limitations
applicable
period
to
wrongful act.”
the
will
be
governed
liability
by
theory
of
the
provision
the
underlying
Hawkins v Regional Medical Laboratories,
PC, 415 Mich 420, 436; 329 NW2d 729 (1982); Waltz v Wyse,
469 Mich 642; 677 NW2d 813 (2004).
Additionally, actions
brought under the wrongful death act “accrue as provided by
the statutory provisions governing the underlying liability
theory . . . .”
Hawkins, supra at 437.
Accordingly, when
the underlying claim is medical malpractice, the medical
malpractice accrual statute, MCL 600.5838a, applies to a
wrongful death action.
Further, this Court has recently
applied
malpractice
the
requirement
tolling
medical
of
MCL
provision
malpractice
600.2912d,
600.2912b,
of
affidavit
and
qualification
the
MCL
of
wrongful death actions.
medical
the
of
malpractice
600.5856(d),
merit
medical
requirements
notice
requirement
malpractice
of
the
MCL
expert
intent
medical
of
MCL
witness
600.2169(1)(a)
to
Waltz, supra; Grossman v Brown,
470 Mich __; __ NW2d __ (2004); Halloran v Bhan, 470 Mich
__; __ NW2d __ (2004).5
5
The dissent is correct that neither this Court nor
the parties in these cases addressed whether these medical
malpractice provisions apply to wrongful death actions;
their application was just assumed. Post at 7-8.
(continued…)
7
Clearly, the wrongful death act is not the only act
that is pertinent in a wrongful death action.
“The mere
fact that our legislative scheme requires that suits for
tortious conduct resulting in death be filtered through the
so-called ‘death act’, MCL 600.2922; MSA 27A.2922, does not
change the character of such actions except to expand the
elements
That
is,
of
a
damage
available.”
wrongful
death
Hawkins,
action
supra
grounded
in
at
436.
medical
malpractice is a medical malpractice action in which the
plaintiff
is
allowed
to
collect
damages
related
to
the
death of the decedent.
The statute at issue here, MCL 600.1483, specifically
provides that it applies to “an action for damages alleging
medical malpractice . . . .”6
Plaintiff’s action is clearly
(…continued)
See also Anthony v Forgrave, 126 Mich App 489, 493;
337 NW2d 546 (1983), in which the Court of Appeals held
that “in a wrongful death action, venue is determined
through application of the venue statutes governing
personal injury actions; focus is on the cause of action
which underlies the wrongful death claim.”
6
The dissent contends that "the limitation on noneconomic damages does not always apply in an ‘action
alleging medical malpractice,’” post at 7, as indicated by
MCL 600.6098(1), which provides, “If the limitation
applies, the court shall set aside any amount of
noneconomic damages in excess of the amount specified in
section 1483.”
[Emphasis added.]
We agree that the cap
does not always apply in an action alleging medical
(continued…)
8
an
“action
for
. . . .”
damages
Section
Although
the
applies
in
1483(1).
Court
an
alleging
of
This
Appeals
action
medical
malpractice
fact
undisputed.
is
recognized
for
damages
that
Ҥ
alleging
1483
medical
malpractice, and that the case before us, with respect to
the subject matter from which the negligence arose, is such
an action,” Jenkins v Patel, 256 Mich App 112, 122; 662
NW2d
453
(2003),
it
went
on
to
conclude
that
“the
Legislature did not intend [§ 1483’s noneconomic] damages
cap to limit those damages in a wrongful-death, medicalmalpractice action.”
conclusion
on
“noneconomic
the
loss”
Id. at 125-126.
basis
that
does
not
§
It reached this
1483(3)’s
specifically
definition
include
of
losses
related to wrongful death, such as loss of society and
companionship.
Section 1483(3) defines “noneconomic loss” as “damages
or
loss
due
impairment,
loss.”
to
pain,
physical
The
suffering,
inconvenience,
disfigurement,
wrongful
death
or
act,
other
MCL
physical
noneconomic
600.2922(6),
(…continued)
malpractice.
Instead, the cap applies only in medical
malpractice actions in which the plaintiff is awarded an
amount of noneconomic damages that exceeds the pertinent
cap. The Legislature’s use of the word “if,” however, does
not, as the dissent contends, indicate that the cap never
applies in a wrongful death action.
9
specifically provides that “the loss of the society and
companionship of the deceased” is an available remedy in a
wrongful death action.
The Court of Appeals concluded that
the damages referred to in § 1483(3) “relate to damages
sustained by an individual surviving plaintiff rather than
damages sustained by next of kin in a wrongful-death action
. . . .”
Jenkins, supra at 124.
Thus, the Court of
Appeals concluded that § 1483 is not meant to limit damages
that a next of kin would seek for his own suffering, such
as loss of society and companionship.
The
Court
of
Appeal’s
reasoning
is
flawed,
in
our
judgment, because it fails to give meaning to all the words
of the statute and “[c]ourts must give effect to every
word,
phrase,
and
clause
in
a
statute
and
avoid
an
interpretation that would render any part of the statute
surplusage or nugatory.”
State Farm Fire & Cas Co v Old
Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002).
If the definition of “noneconomic loss” in § 1483(3) does
not encompass damages sought by a next of kin under the
wrongful death act for his own suffering, as the Court of
Appeals
concluded,
then
such
definition
also
would
not
encompass such damages when sought by a next of kin of a
plaintiff who survived the medical malpractice.
If that is
so, then the Legislature’s specific directive that § 1483
10
limits the total damages recoverable by “all plaintiffs”
means
nothing.
something.
However,
this
language
has
to
mean
In our judgment, the “all plaintiffs” language
means that the plaintiff who most directly suffered from
the
medical
malpractice
is
not
necessarily
plaintiff in a medical malpractice action.
“plaintiff’s”
next
of
kin
may
also
be
the
only
Rather, the
plaintiffs
in
a
medical malpractice action and they may seek damages for
the
losses
medical
that
malpractice,
companionship.
Mich
they
662 ,
664
have
such
suffered
as
the
as
a
loss
result
the
society
of
of
and
Blackwell v Citizens Ins Co of America, 457
n
1;
579
NW2d
889
(1998)(a
plaintiff’s
husband’s loss of consortium claim is derivative of the
plaintiff’s medical malpractice claim).
Furthermore,
loss”
is
suffering,
physical
not
§
1483(3)’s
limited
to
“damages
inconvenience,
disfigurement
definition
.
or
physical
.
.
.”
of
loss
“noneconomic
due
to
impairment,
Rather,
§
pain,
[and]
1483(3)
specifically includes within the definition of “noneconomic
loss” all the things mentioned above and “other noneconomic
loss.”
loss
Therefore, just because a noneconomic loss, such as
of
society,
is
not
specifically
listed
under
§
1483(3), does not mean that it is not a covered noneconomic
loss.
Section
1483(2)
directs
11
the
trier
of
fact
to
“itemize damages into damages for economic loss and damages
for
noneconomic
either
to
the
loss.”
$280,000
Noneconomic
cap
or
the
damages
$500,000
are
subject
cap,
while
economic damages are not subject to either of these caps.7
Damages awarded in an action for medical malpractice can
obviously only be economic or noneconomic.
The damages
awarded in this case for loss of society and companionship
are clearly noneconomic damages.
Rusinek v Schultz, Snyder
& Steele Lumber Co, 411 Mich 502, 504-505; 309 NW2d 163
(1981)(loss of consortium, which is defined as including
loss of society and companionship, is a noneconomic loss).
This
fact
defendants
is
undisputed.
that
§
1483’s
Accordingly,
definition
we
of
agree
with
“noneconomic
losses,” which includes “other noneconomic loss,” includes
noneconomic losses not specifically listed, including those
sought by plaintiff’s next of kin for their own pain and
suffering.
Otherwise, a plaintiff’s next of kin would not
be able to recover for such things as loss of consortium,
7
Pursuant to MCL 600.1483(4), “[t]he state treasurer
shall adjust the limitation on damages for noneconomic loss
set forth in subsection (1) by an amount determined by the
state treasurer at the end of each calendar year to reflect
the cumulative annual percentage change in the consumer
price index.”
The 2004 limitations are $366,000 and
$653,500.
See
http://www.michigan.gov/documents/
nonecolimit101_3658_7.pdf.
12
loss of society, and loss of companionship in a medical
malpractice
action,
and,
malpractice
plaintiff’s
recover such damages.
as
discussed
next
of
kin
above,
can
a
most
medical
certainly
See Blackwell, supra.
Further support for our conclusion that the medical
malpractice noneconomic damages cap applies to a wrongful
death
action
where
the
underlying
claim
is
medical
malpractice can be found in the allocation of liability
statute, MCL 600.6304.
Section 1483(1) refers expressly to
§ 6304, stating that if the court determines, pursuant to §
6304, that one of the enumerated exceptions apply, then the
$500,000 cap, rather than the $280,000 cap, is applicable.
Section 6304 provides, in pertinent part:
(1) In an action based on tort or another
legal theory seeking damages for personal injury,
property damage, or wrongful death . . . the
court, unless otherwise agreed by all parties to
the action, shall instruct the jury to answer
special interrogatories or, if there is no jury,
shall make findings indicating both of the
following:
(a)
damages.
The
total
amount
of
each
plaintiff’s
(b) The percentage of the total fault of all
persons that contributed to the death or injury
. . . .
* * *
(3) The court shall determine the award of
damages to each plaintiff in accordance with the
findings under subsection (1), subject to any
13
reduction under subsection (5) . . . and shall
enter judgment against each party, including a
third-party defendant . . . .
* * *
(5)
In
an
action
alleging
medical
malpractice, the court shall reduce an award of
damages in excess of 1 of the limitations set
forth in section 1483 to the amount of the
appropriate limitation set forth in section 1483.
The jury shall not be advised by the court or by
counsel for either party of the limitations set
forth in section 1483 or any other provision of
section 1483. [Emphasis added.]
Section 6304(1), requiring the jury to allocate fault among
all persons, expressly applies to wrongful death actions,
because it explicitly states, “In an action based on . . .
wrongful death . . . .”
court
to
reduce
the
Section 6304(3) then requires the
plaintiff’s
award
in
all
subject
actions, including wrongful death actions, according to the
jury’s allocation of fault and subject to any reduction
required under subsection 5.
is
the
subsection
As noted above, subsection 5
requiring
the
noneconomic damages cap of § 1483.
court
to
apply
the
Thus, subsection 3 of §
6304 incorporates the noneconomic damages cap of § 1483
into wrongful death actions by ensuring that in any action
subject
to
§
6304,
expressly
including
wrongful
death
actions, the court will reduce the plaintiff’s verdict both
on the basis of the allocation of fault and on the basis of
14
§ 1483—the noneconomic damages cap for medical malpractice
cases.8
Plaintiff argues that the wrongful death act expressly
precludes
application
of
the
medical
noneconomic
damages
to
wrongful
death
cap
malpractice
actions.
As
noted above, MCL 600.2922(6) provides, in pertinent part:
In every action under this section, the
court or jury may award damages as the court or
jury shall consider fair and equitable, under all
the circumstances including reasonable medical,
hospital, funeral, and burial expenses for which
the estate is liable; reasonable compensation for
the
pain
and
suffering,
while
conscious,
undergone by the deceased person during the
period intervening between the time of the injury
and death; and damages for the loss of financial
8
The 1986 version of § 1483 provided, in pertinent
part:
(1) In an action for damages alleging
medical malpractice against a person or party
specified
in
section
5838a,
damages
for
noneconomic loss which exceeds $225,000.00 shall
not be awarded unless 1 or more of the following
circumstances exist:
(a) There has been a death.
The 1986 version of § 1483 capped noneconomic damages at
$225,000 unless one of seven exceptions, including death,
applied. Section 1483 was amended in 1993 to adopt a twotiered cap system.
Under this two-tiered cap system, the
lower cap applies unless one of three exceptions, not
including death, applies. While the 1986 version of § 1483
specifically provided that the noneconcomic damages cap
does not apply to wrongful death actions, the current
version does not specifically provide that the cap does not
apply to wrongful death actions.
15
support
and
the
loss
of
companionship of the deceased.
Plaintiff
argues
wrongful
death
that
this
claims,
the
society
provision
in
such
governs
damages
manner
a
provisions are rendered inapplicable.
and
that
in
other
However, this Court
has held that other statutory and common-law limitations on
the amount of damages apply to wrongful death actions.
For
instance,
the
comparative
negligence
principles
and
collateral source setoff rule, MCL 600.6303(1), apply to
wrongful death actions.
Solomon v Shuell, 435 Mich 104;
457 NW2d 669 (1990); Rogers v Detroit, 457 Mich 125; 579
NW2d 840 (1998), overruled on other grounds by Robinson v
Detroit, 462 Mich 439; 613 NW2d 307 (2000).9
Contrary
to
plaintiff’s
2922(6) are not incompatible.
contention,
§
1483
and
§
Notwithstanding § 1483, in
accordance with § 2922(6), “[i]n every action under” the
wrongful death act, “the court or jury may award damages as
the
court
including
suffering,
or
jury
shall
“reasonable
while
consider
compensation
conscious,
fair
and
for
undergone
equitable,”
the
by
the
pain
and
deceased
person during the period intervening between the time of
9
The dissent is correct that neither this Court nor
the parties in these cases addressed whether these
limitations
apply
to
wrongful
death
actions;
their
application was just assumed. Post at 8.
16
the injury and death; and damages for the loss of financial
support and the loss of the society and companionship of
the deceased.”
discretion,
Only after the court or jury has, in its
awarded
damages
as
it
considers
fair
and
equitable does the court, pursuant to § 6304(5), apply the
noneconomic damages cap of § 1483.
This is made explicitly
clear in § 6098(1), which states:
A judge presiding over an action alleging
medical malpractice shall review each verdict to
determine
if
the
limitation
on
noneconomic
damages provided for in section 1483 applies. If
the limitation applies, the court shall set aside
any amount of noneconomic damages in excess of
the amount specified in section 1483.
Section 6304(5) similarly provides:
In an action alleging medical malpractice,
the court shall reduce an award of damages in
excess of 1 of the limitations set forth in
section 1483 to the amount of the appropriate
limitation set forth in section 1483. The jury
shall not be advised by the court or by counsel
for either party of the limitations set forth in
section 1483 or any other provision of section
1483.
Although § 1483 reduces the damages awarded by the trier of
fact, it does nothing to impinge upon the trier of fact’s
ability
to
equitable.”
determine
an
amount
that
is
“fair
and
That is, § 1483 does not diminish the ability
of the trier of fact to render a fair and equitable award
of damages; it merely limits the plaintiff’s ability to
recover the full amount awarded in cases where the cause of
17
action is based upon medical malpractice and the amount
exceeds the cap.
See Phillips v Mirac, Inc, 470 Mich 415;
__ NW2d __ (2004).
As the Court of Appeals in Zdrojewski v Murphy, 254
Mich App 50, 76; 657 NW2d 721 (2002), quoting Phillips v
Mirac, Inc, 251 Mich App 586, 594; 651 NW2d 437 (2002),
aff’d 470 Mich 415; __ NW2d _(2004), explained when it held
that
the
noneconomic
damages
cap
does
not
violate
a
plaintiff’s right to a jury trial, the noneconomic damages
cap
“‘does
not
impinge
on
a
jury’s
right
to
.
.
.
determine[e] . . . the amount of damages . . . incurred.’”
Instead, it “‘only limits the legal consequences of the
jury’s finding.’”
That is, “‘[o]nce the jury has reached
its verdict, the trial judge merely enters a judgment on
the verdict that is consistent with the law.’”
77.
Id. at 76-
“Plaintiff was able to try this case in front of a
jury that rendered a verdict awarding plaintiff damages.
Because
MCL
600.6304(5)
prohibits
the
trial
court
from
informing the jury of the noneconomic damages limitation of
MCL 600.1483, the jury rendered its damages award on the
basis of the facts of the case, unaware of the limitation
of the statute.”
Id. at 77.
Accordingly, the noneconomic
damages cap does not violate a plaintiff’s statutory right
18
to have the court or jury “award damages as the court or
jury shall consider fair and equitable.”
Section 2922(6).
IV. CONCLUSION
We conclude that the medical malpractice noneconomic
damages cap does apply to wrongful death actions where the
underlying claim is medical malpractice.10
Accordingly, we
reverse the judgment of the Court of Appeals and remand
this case to the Court of Appeals for consideration of the
constitutional issues raised by plaintiff, which were not
resolved by the Court of Appeals in light of its analysis
of the statutory issue.11
Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
10
Because no allegation has been made that plaintiff
was
hemiplegic,
paraplegic,
quadriplegic,
or
had
permanently impaired cognitive capacity, or that there had
been permanent loss of or damage to a reproductive organ
because of defendants’ medical malpractice, we conclude
that the lower cap applies.
Cf. Shinholster v Annapolis
Hosp, 471 Mich __; __ NW2d __ (2004).
11
Because we conclude that the medical malpractice
noneconomic damages cap applies to actions filed under the
wrongful death action where the underlying claim is medical
malpractice, and because defendants have not argued that an
award so capped is excessive, noneconomic damages in this
case must be reduced in accordance with § 1483, consistent
with this opinion.
19
S T A T E
O F
M I C H I G A N
SUPREME COURT
MARGARET JENKINS, as personal
representative of the Estate
of Mattie Howard, deceased,
Plaintiff-Appellee,
v
No. 123957
JAYESH KUMAR PATEL, M.D., and
COMPREHENSIVE HEALTH SERVICES,
INC., a Michigan Corporation,
d/b/a THE WELLNESS PLAN,
jointly and severally,
Defendants-Appellants.
_______________________________
KELLY, J. (dissenting).
I
disagree
medical
with
malpractice
the
majority's
noneconomic
wrongful death actions.
conclusion
damages
cap
that
applies
the
to
The Court of Appeals analysis and
decision concerning this issue were correct and should be
affirmed.
Statutory Interpretation
This Court has often repeated the proper approach to
interpreting statutes. We recently stated:
"The
paramount
rule
of
statutory
interpretation is that we are to effect the
intent of the Legislature. Tryc v Michigan
Veterans' Facility, 451 Mich 129, 135; 545 NW2d
642 (1996). To do so, we begin with the statute's
language. If the statute’s language is clear and
unambiguous, we assume that the Legislature
intended its plain meaning and we enforce the
statute as written.
People v Stone, 463 Mich
558, 562; 621 NW2d 702 (2001). In reviewing the
statute's language, every word should be given
meaning, and we should avoid a construction that
would render any part of the statute surplusage
or nugatory. Altman v Meridian Twp, 439 Mich 623,
635; 487 NW2d 155 (1992)." [Omelenchuk v City of
Warren, 466 Mich 524, 528; 647 NW2d 493 (2002),
quoting Wickens v Oakwood Healthcare Sys, 465
Mich 53, 60; 631 NW2d 686 (2001).]
The Wrongful Death Act
The wrongful death act1
wrongful death cases.
is the exclusive remedy in
Courtney v Apple, 345 Mich 223, 228;
76 NW2d 80 (1956). The Court of Appeals correctly reasoned
that the medical malpractice noneconomic damages cap found
in MCL 600.1483 does not apply to actions brought under the
act.
Jenkins
(2003).
v
Patel,
256
Mich
Furthermore,
the
Court
App
of
112;
662
Appeals
NW2d
453
concurring
opinion of Judge Kelly underscores that a plain language
reading of the act precludes the application of the MCL
600.1483 cap.
The
wrongful
preservation
of
death
claims
act
that,
was
at
passed
common
to
ensure
the
law,
would
have
terminated with the death of the victim or the tortfeasor.
Hawkins v Regional Medical Laboratories, PC, 415 Mich 420,
1
MCL 600.2922.
2
428-429; 329 NW2d 729 (1982). To ensure the survival of a
claim, a wrongful death claim must be filed in conformity
with the provisions of the act.
An
injured
plaintiff
statutory provisions.
may
file
suit
under
other
However, if he dies in the course of
litigation, to recover damages for the death, his estate
must
file
a
claim
under
the
wrongful
death
act.
MCL
600.2921. The act contains no cap on the damages available.
See
MCL
600.2922.
It
was
not
amended
by
tort
reform
legislation.2
In this case, the decedent's estate sought damages for
losses sustained by the decedent's seven children and seven
siblings. A malpractice action brought on behalf of the
decedent had she been alive would not have survived her.
Plaintiff had no alternative but to file suit under the
wrongful death act.
The act contains the substance, procedures, and the
measure of damages in an action brought against one who has
caused the death of another.
2
The most recent amendment to the wrongful death act
occurred in 2000. This amendment made modifications to the
statute in conformity with the Estates and Protected
Individuals Code.
MCL 700.1101 et seq.
Before that, the
statute was amended in 1985. It was not amended in 1995,
when tort reform legislation was passed.
3
MCL 600.2922(6) provides:
In every action under this section, the
court or jury may award damages as the court or
jury shall consider fair and equitable, under all
the circumstances including reasonable medical,
hospital, funeral, and burial expenses for which
the estate is liable; reasonable compensation for
the
pain
and
suffering,
while
conscious,
undergone by the deceased person during the
period intervening between the time of the injury
and death; and damages for the loss of financial
support
and
the
loss
of
the
society
and
companionship of the deceased.
Indisputably, plaintiff's action is governed by the
specific provisions of the act. I agree with the Court of
Appeals majority that
standing alone, the [wrongful death act]
mandates recovery in any amount, limited only by
the requirement that the amount be fair and
equitable, for noneconomic losses, including
those for loss of society and companionship.
Without taking into consideration the damages cap
. . . the [act] clearly and unambiguously governs
a medical-malpractice action involving death and
the accompanying request for damages. This was
clearly the Legislature's intent in enacting the
[act]. Tort-reform legislation, which included
the damages cap, did not result in any amendment
of the [act]. [Jenkins, supra at 119-120.]
In short, the only limitation intended by
the
Legislature on noneconomic damages under the wrongful death
act is that the amount be fair and equitable.
The Medical Malpractice Noneconomic
Damages Cap Statute
I agree with Court of Appeals Judge Kelly that the
wrongful death act and the medical malpractice damages cap
4
statute need not be read in pari materia. The statutes
serve different purposes. The medical malpractice damages
cap
serves
to
limit
liability
in
a
medical
malpractice
action. As stated above, the wrongful death act provides
for the survival of an action once the victim dies. It
allows the estate to recover damages for the value to the
estate of the life of the deceased. While the Legislature
could
have
made
the
medical
malpractice
damages
cap
expressly applicable to wrongful death actions, it chose
not to do so.
The
wrongful
death
act
specifically
provides
for
damages in actions filed in accordance with its provisions.
See MCL 600.2922(6).
Just as this Court should not expand
the remedies available under the act, it should not narrow
them, absent an explicit indication that the Legislature
intended it.
If
the
Legislature
wanted
the
medical
malpractice
damages cap statute to apply in wrongful death actions,
some indication of that intention would be present in the
language of the wrongful death act. Furthermore, although
the
Legislature
was
aware
of
the
exclusive
damages
provision in the wrongful death act, it made no reference
to
a
limitation
on
damages
in
noneconomic damages cap statute.
5
the
medical
malpractice
The
Legislature
existing laws.
of
new
laws
is
presumed
to
have
knowledge
It is assumed to have measured the effect
on
all
existing
laws.
Walen
v
Dep't
Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993).
presumed
to
of
know
that
the
wrongful
death
act
of
It is
provides
specifically and exclusively for damages in wrongful death
claims.
Therefore,
it
is
significant
that
the
Legislature
declined the opportunity to list death as an injury subject
to the damages cap in either the wrongful death act or the
medical malpractice noneconomic damages cap statute. The
inference is strong that the damages cap does not apply in
wrongful
death
cases
arising
from
underlying
medical
malpractice claims.
Other Legislation
The Legislature has specifically addressed death in
other legislation. In the products liability cap act, MCL
600.2946a,
a statute analogous to the damages cap, the
Legislature
not
only
specifically
addressed
death, but identified death as one of the two
injuries that results in the second-tier cap:
"In an action for product liability,
the total amount of damages for noneconomic loss
shall not exceed $280,000.00, unless the defect
in the product caused either the person's death
or permanent loss of a vital bodily function, in
which case the total amount of damages for
6
noneconomic loss shall not exceed $500,000.00."
[MCL 600.2946a(1).]
Thus, while the Legislature was clearly
aware that death is a possible injury in medicalmalpractice claims just as in products-liability
claims, it chose not to identify it as an injury
subject to the damages cap.
[Jenkins, supra at
135-136 (Kelly, J., concurring).]
MCL
600.6098(1)
lends
support
to
the
plaintiff's
argument. The language of this section requires a judge
presiding over an action alleging medical malpractice to
determine
if the limitation of noneconomic damages
provided for in section 1483 applies. If the
limitation applies, the court shall set aside any
amount of noneconomic damages in excess of the
amount specified in section 1483.
The Legislature's use of the word "if" in
600.6098(1)
damages
suggests
does
not
that
always
the
apply
limitation
in
an
on
MCL
noneconomic
"action
alleging
medical malpractice." This language supports the conclusion
that the medical malpractice damages cap does not apply in
wrongful death actions.
The majority claims that this section means that the
cap is applicable only where the amount of a damage award
exceeds the damages cap. It believes that the limitation
does not apply if the jury award is less than the damages
cap amount. I disagree. The cap is applicable even in that
case.
When it has not been necessary to reduce the award,
the cap is unapplied, not inapplicable.
7
The majority references cases in which, it says, this
Court has applied other statutes to the wrongful death act.
Ante at 7. See Halloran v Bhan 470 Mich ___; ___ NW2d ___
(2004);
Grossman
(2004).
This
v
is
Brown,
470
accurate;
Mich
___;
however,
___
NW2d
the
___
issue
was
not
raised in those cases. The issue in Halloran and Grossman
was
not
whether
the
statutes
mentioned
were
properly
applied to claims made under the wrongful death act.
The
parties in those cases raised questions involving medical
malpractice expert witness's qualifications to testify. The
parties did not question whether the statutes in question
applied to the wrongful death act.
Likewise, contrary to the majority's characterization
of Solomon3 and Rogers,4 this Court did not hold "that other
statutory
and
common-law
limitations
on
the
amount
of
damages apply to wrongful death actions." Ante at 15-16.
Again,
those
involved
cases
questions
misconduct,
and
involved
of
various
different
governmental
issues.
immunity,
evidentiary
claims.
Rogers
attorney
The
only
reference to wrongful death is in the factual background of
the
case.
Solomon
involved
whether
certain
evidence
was
3
Solomon v Shuell, 435 Mich 104; 457 NW2d 669 (1990).
4
Rogers v Detroit, 457 Mich 125; 579 NW2d 840 (1998).
8
admissible under an exception to the hearsay rule. It also
involved
the
reference
to
application
the
of
wrongful
the
rescue
doctrine.
death
nature
of
the
Again,
case
is
mentioned only in the factual background. While the Court
assumed the application of these statutes, that is a far
cry from deciding an issue raised by the parties.
Furthermore,
whether
the
savings
provision
in
the
wrongful death act5 applies to medical practice actions6 has
little bearing on whether the Legislature intended that the
damages
cap
statute
applies.
The
wrongful
death
act
specifically references the relevant statute of limitations
provision of the underlying claim.
MCL 600.5852; Waltz v
Wyse, 469 Mich 642, 658-659; 677 NW2d 813 (2004) (Cavanagh,
J., dissenting).
Conclusion
The Legislature made no mention in the wrongful death
act to there being a cap on damages available under it.
other
act,
malpractice
actions.
including
damages
MCL
cap
600.1483,
applicable
makes
to
the
wrongful
No
medical
death
I conclude that the Legislature did not intend
5
MCL 600.5852.
6
See Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004).
9
that the medical malpractice damages cap should be applied
to wrongful death actions.
Therefore, the Court of Appeals analysis and decision
regarding this issue should be affirmed.
Marilyn Kelly
Michael F. Cavanagh
10
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