Jenkins v. Patel

v JENKINS PATEL April 1, 12, 2003, March at Detroit. Decided Docket No. 233116. Submitted appeal sought. at 9:15 am. Leave representative Margaret Jenkins, personal of the Mattie estate of Wayne Howard, deceased, brought wrongful-death a action in Cir- J., Jayesh Court, Battani, against K. Patel and cuit Marianne O. Comprehensive Services, alleging that the decedent died as Health jury malpractice by a result of the defendants. A rendered medical $10 plaintiff, awarding in verdict million a in favor damages. The filed a motion for remittitur noneconomic defendants cap trial, arguing set MCL or new that forth in required medical-malpractice regarding actions a reduc- 600.1483 award, or, alternative, damage in the was tion in the the award court, J., Drain, A. excessive under MCR 2.611. The Gershwin con- damages cap apply, MCL 600.1483 cluded that the under did not however, agreed Judge Drain, but the award excessive. was amount, finding it difficult did set a remittitur to assess dam- testimony present ages not been at the trial to because he had hear grant court a witnesses. The also refused to the defendants appealed. trial. new The defendants Appeals held: Court of regarding 1. The forth set in MCL600.1438 medical- malpractice apply wrongful-death predi- actions does not actions malpractice. Rather, specific cated on a review of the lan- medical guage 600.2922, and MCL act (wda), 600.1438, legislative history statutes, behind both indicates exclusively govern an intent that the all wrongful-death action, including areas of a an award of damages, Legislature did and that the not intend that damages cap applied in MCL 600.1438be to limit noneconomic medical-malpractice wrongful-death, in a action. failing 2. The trial abused its to set a remitti- court discretion grant tur the defendants a new trial under MCR 2.611 amount or damage after the award court determined that the was excessive. stand, Allowing an award that the trial court found excessive to defendants, materially without avenue of relief for the affects rights. MCR 2.611. The matter must be defendants’ substantial Patel Opinion Court remand, On the court must a remanded. determine remittitur grant only. amount or new trial on part, part, Affirmed reversed and remanded for further proceedings. J., concurring, agreed by with the reached result Kelly, majority separately plain language but wrote to underscore that the wrongful-death act, 600.2922, precludes application of the MCL cap damages set forth in MCL 600.1438 to the instant case. Damages WrongfuiADeath — Damages — — Act Noneconomic Limits. wrongful-death act, 600.2922, specifically MCL controls all aspects wrongful-death action, including of a an award of damages, damages cap noneconomic and the forth in set applied damages 600.1438 will not be to limit noneconomic in a n wrongful-death predicated malpractice. action on medical Saperstein

Ira B. plaintiff. for the Wagner Kitch Drutchas DeNardis & Valitutti (by Susan H. Zitterman) and Grier & Copeland, P.C. (by Wilson Copeland and Dora Brantley), defendants. Murphy Cooper, P.J.,

Before: JJ. Kelly, Jayesh J. Defendants K. Compre- Patel and Murphy, hensive Health appeal right Services as of from a judgment pursuant entered jury verdict awarded plaintiff Margaret Jenkins, personal repre- $10 sentative of the estate of Mattie Howard, million in in damages this wrongful-death, medical-malprac- tice action. On the of our basis resolution this appeal, necessary it only is to address two central First, issues. we must determine whether Michigan’s act wrongful-death (wda), MCL 600.2922, governs the award damages of noneconomic out of a arising death caused medical-malpractice, thereby pre- application cluding medical-malpractice cap on noneconomic found in MCL 600.1483 cap). We (damages hold that controls plaintiff award pursues where a a wrong- 256 Opinion the Court malpractice. predicated medical on action ful-death inapplicable does Therefore, the damages recoverable not limit the plaintiff. court whether the trial issue is The second denying remittitur motion for defendants’ in erred failing trial court erred trial. We hold new concluding after amount a remittitur to determine damage where the excessive, was award grant a new trial. did not court also FACTS

I. UNDERLYING brought action this Plaintiff seeking for the death recover 1998, March complaint alleged Howard. The mother, Mattie of her was caused defendants’ death that Ms. Howard’s began treating malpractice. Howard Ms. medical May shortly being after Dr. Patel defendant hospitalized fif- Howard had a ten-to a stroke. Ms. for history hypertension. teen-year suffered She also of significant amount a and had lost from heart disease Additionally, kidney had her stroke function. of her damage in her brain. to the vessels some caused pressure and Howard’s blood monitored Ms. Dr. Patel hyperten- prescribed her to treat various medications nephrologist a Ms. Howard to Dr. Patel referred sion. decreased he ordered showed 1993,after tests in late May dialysis began kidney in treatment She function. was admitted to 1995, Ms. Howard In November 1994. Hospital, and deteriorated where her condition Sinai negligently Dr. Patel contended that she died. Plaintiff hyperten- managed renal disease Ms. Howard’s ultimately Plaintiff’s led to her death. which sion, expert concerning Dr. Patel how in detail testified required of of care that was the standard breached treating led to her and how this Ms. Howard him in Patel Opinion Court sought damages demise. Plaintiff for loss of soci- ety companionship Ms. sustained Howard’s siblings. jury seven children seven The found in plaintiff favor $10 and awarded million in damages. Defendants filed a motion remittitur or new arguing damages cap required trial, that the a reduc- damage tion in the award, and, alternative, judge presided was award excessive. The who jury accepted position over trial on the federal longer bench, and was no on the bench at the time the motion for remittitur or heard; new trial was judge therefore, the who heard the motion relied on transcript ruling.1 the trial order render a The trial court ruled that controlled and that the wda damages cap inapplicable. respect therefore was With alleged damage award, excessiveness agreed trial court on the record that the award was excessive; however, the court failed to aset remittitur amount because it found it too difficult to determine appropriate light amount of of the fact personally present was court to hear the testimony judge credibility. of witnesses and their grant trial court also refused defendants a new trial.

H. WRONGFUL-DEATH ACT THE VERSUS MEDICAL-MALPRACTICE DAMAGES CAP

A. STANDARD OF REVIEW gov- We áre asked to determine whether the respect erns an award 1 purposes opinion, For of this reference to the “trial court” shall relate succeeding judge to the who and ruled heard on the motion for remittitur or new trial. App Mich

Opinion Court the wrongful-death in losses suffered malpractice. predicated This issue on medical actions question interpretation, statutory which is a involves RFF, novo. In re reviews de of law that this Court APPELLATE ARGUMENTS B. THE PARTIES’ clearly damages cap argue that Defendants the applies alleging medical to action states it malpractice. They the trial court com- contend that cap. refusing apply to the Defendants mitted error in plaintiff bring used the wda assert that the fact change underlying lawsuit not character did malpractice. which sounded in medical lawsuit, applies damages cap According defendants, the specific though in no reference to it even there is specific argued more it is that the Moreover, wda. recently superseded any damages cap incon- enacted Additionally, language in the defendants sistent wda. history legislative maintain that the applies wrongful- cap cap in confirms that that now where, in elimi- actions, death thereby pro- exception cap, nated death as medical-malpractice, viding cap actions, all for a on including where death resulted from those malpractice. cap appeal on

Plaintiff maintains inapplicable (1) wda is because: the exclusive (2) remedy one, as this cases such specific prece- and takes is the more statute (3) examining damages cap, and over the dence statutory provisions, Legislature obvi- relevant apply ously wrongful- did intend for the death cases. 117 v Patel

Opinion of the Court C. GUIDING PRINCIPLES OF STATUTORY CONSTRUCTION AND ANALYSIS Hosp, v Mich 57, 63; In Roberts Mecosta Co Gen 466 Michigan Supreme Court, 642 NW2d 663 (2002), reviewing principles statutory construction, of stated: anchoring jurisprudence, An rule of rule and the foremost statutory construction, are that courts to effect the Legislature. so, begin

intent of the To do we with an exami- language nation of the of the statute. If the statute’s lan- unambiguous, guage is clear and then we assume that the plain meaning intended its and the statute is necessary corollary princi- A enforced written. of these ples may nothing unambiguous is that a court read into an Legisla- statute that is not within the manifest intent of the ture as derived from the words of the statute itself. [Cita- tions omitted.]

Every phrase word or contained a statute should plain ordinary be accorded its meaning. Slater v Ed, Ann Arbor Pub Schools Bd 250 Mich 428-429; (2002). Moreover, presume NW2d 205 we every word in a statute has some meaning, and this Court should avoid construction that would any part surplusage nugatory. render of a statute or Karpinski Hosp-Macomb Corp, St John Ctr App 539, 543; Mich 606 NW2d 45 (1999).

If reasonable minds can differ concerning statute, judicial of a meaning appro- construction is priate. Slater, supra at “Where ambiguity 428. exists statute, may history in a a court refer in order to determine the intent legislation underlying Legislature.” Dep’t Corrections, of the Luttrell v may Courts cognizance surrounding take of facts and events purpose Id. passage legislation. App 256 analysis by closely

We commence examining our contained in the statutes, begin- relevant ning with the wda. Plaintiff’s action was brought 600.2922, provides, per- under the which wda, part: tinent person

(1) resulting Whenever the death of a or by wrongful act, neglect, in death shall be caused or fault of another, act, neglect, would, and the fault is such as if ensued, party injured death had not have entitled the damages, person maintain an action and recover who or corporation liable, that would have been if death had ensued, damages, shall be liable to an action for not- withstanding person injured, although the death of the and the death was caused under circumstances that constitute a felony. Every

(2) brought by, action under this section shall be of, personal representative and in the name person. estate of the . . . deceased

[*] ^{[*] [*]} every (6) section, jury In action under this the court or may damages jury award as the court or shall consider fair equitable, including and under all the circumstances . . . support for the loss of financial and the loss of the society companionship and of the deceased. . . . MCL provides, 600.2921 in part, on “[a]ctions claims for which in result death shall not be prosecuted injured after the death of the person except pursuant (Emphasis [MCL 600.2922].” added.) There having been no common-law right of recovery in the person survivors of a wrongfully killed, the sole rights source of in such a case is the v Courtney Apple, 223, 345 Mich 228; 76 NW2d WDA. 80 (1956); Crystal Hubbard, 92 Mich App 240, 243; 285 NW2d (1979), rev’d on other grounds 414 Mich 297 (1982). Supreme Our in Courtney, supra Court at Jenkins v Patel

Opinion Court act[2] remedy stated that under the death “[t]he exclusive, recovery ... and the is nec essarily specified limited to those the [Legislature by proofs.” Thus, plaintiff and sustained was statuto rily required to proceed wrongful- with this action for pursuant the wda. death Examining of MCL it is 600.2922(1), beyond dispute applies that the wda the context of malpractice, where, here, action for medical a death was caused act of another as negligent the trier of fact. See Miller v Mem Mercy found Hosp, 196; 644 NW2d 730 (2002). Moreover, the wda addresses an award of directs “every jury court or action” to “award damages as jury the court or shall consider fair equitable . . . .” 600.2922(6) (emphasis added). Addition- ally, respect to the nature of the damage claim, specifically the wda encompasses society “loss of the companionship deceased.” MCL Therefore, 600.2922(6). standing alone, the wda man- recovery dates amount, only by limited requirement equitable, amount be fair and noneconomic losses, including those for loss of soci- ety and companionship. taking Without into consider- ation the damages cap, applying the rules of stat- utory construction in Roberts, supra 63, enunciated at clearly the wda and unambiguously governs a medi- cal-malpractice involving action death and the accom- panying request clearly This was damages. 2 wrongful-death Courtney A action at the time was decided was con seq., repealed by 236, trolled MCL 691.581 et 1961 PA and that act simi larly jury directed the court or to award in an amount that was supra 691.582(2). Courtney, just liability established, fair and if was MCL at 228-229. 256 enacting intent in wda. Tort-reform Legislature’s cap, which included the did not legislation, any in amendment of the wda. result damages-cap statute, We now turn to the 600.1483, applicable medical-malpractice which is respect with to an actions award cap, The damages. original, single-tiered damages 1986, exceptions cap, enacted in listed several thereby specifically including death, precluding exception limit on noneconomic if applied. 1986 PA MCL 600.1483(1) (a)-(g) before amendment 1993 PA 78.3 The original language of cap provided, pertinent part, as follows:

(1) damages alleging malpractice In an action for medical person party against specified 5838a, in section dam- ages $225,000.00 for noneconomic loss which exceeds shall following not be awarded unless 1 or more of the circum- stances exist:

(a) There has been a death.

(b) There has been an intentional tort.

(c) foreign object wrongfully body A was left of the patient. injury reproductive system

(d) The involves the of the patient. discovery

(e) pre- The of the existence of the claim was provider. vented the fraudulent conduct of a health care patient (f) organ wrongfully A limb or was removed. patient bodily (g) has lost a vital function. PA [1986

178, MCL 600.1483.] 3 Thus, originallyenacted, damages cap exempted statute that death from the was consistent wda. v Patel

Opinion of the Court a current version has two- 600.1483 in its 1483 draws more narrow cap. Section tiered recovery on the of imposes ceiling a exceptions and exceptions. even for these The conjunction did not amend 1993. Relevant § with the amendment elimination of the ref- analysis Legislature’s is the our perti- provides, The statute now erence to death. part: nent malpractice alleging

(1) medical In an action for by person party, against the total amount of dam- or or plaintiffs, ages loss recoverable all for noneconomic defendants, negligence resulting of all shall not from $280,000.00unless, negligence as the result of the exceed defendants, following 1 or more of the 1 or more of the pursuant exceptions apply as the court determined 6304, in which case for noneconomic loss section $500,000.00: shall not exceed paraplegic, quadriplegic (a) plaintiff hemiplegic, or The permanent resulting 1 or more in a total functional loss of following: limbs caused 1 or more of the Injury (i) to the brain. h\jury spinal

(ii) cord. permanently impaired (b) plaintiff cognitive has incapable indepen- capacity rendering making him or her permanently incapable dent, responsible life decisions daily independently performing normal, the activities of living. permanent damage (c) loss of or to a There has been inability

reproductive procreate. organ resulting in

[*] ^{[*] [*]} section, (3) “noneconomic loss” means As used in this phys- pain, suffering, inconvenience, damages or loss due to physical disfigurement, impairment, other ical PA MCL noneconomic loss. 600.1483.] [1993 acknowledge applies § We first in an damages alleging malpractice, action for medical and respect subject that the case before us, negligence matter from which the arose, is such an question initially language action. The is whether the clearly § unambiguously contained and leads applies wrongful-death to the conclusion that it in a action; the answer affects whether we confine our Legislature’s determination of the intent to the lan- guage additionally history as drafted or consider the specifi- of the statute. Because the term “death” is not cally necessary § 1483, included in it is to discuss by implication, applies whether, wrongful-death the statute in a taking

action, into consideration the actual words used and the context of that use. A cogent argument any can be made that the lack of § reference to death in 1483,in and of itself, leads to ambiguous

a conclusion that the statute is or that it apply does not where death results from medical mal- practice. argue aside, That it is not unreasonable to composition § of 1483, with its two-tiered cap, require any specific does not reference to death injury exception, other not included as specific injuries where there is reference to in the exceptions, implicitly and where all other arising malpractice, including from medical death, fall cap. within the lower express

However, there contained in § apply wrong- 1483that indicates that it does not ful-death actions. Noneconomic loss is defined in meaning “damages pain, statute as or loss due to suf- fering, physical impairment, physical inconvenience, disfigurement, or other noneconomic loss.” MCL 600.1483(3).Although the definition references “other specifically loss,” it does not touch on v Patel which are unmis- society companionship, loss of with a action. takenly associated Lindsey, App 612, McTaggart 600.2922(6); society for loss of (claims NW2d 881 616; (1993) compensation companionship address when family relationships that results destruction deter- Therefore, we must family dies). member one loss” was meant mine whether “other noneconomic society with loss cover associated losses related or in other words companionship, death. wrongful known statutory construction

Under the doctrine general if a law contains words ejusdem generis, particular subjects, those designation that follow only things include presumed words are general sub- character, or nature as the kind, class, the same Appliance Services, Inc jects enumerated. Sands 241 The Wilson, 463 615 NW2d by our recently explained in more detail doctrine was Engineering v Toledo in Weakland Supreme Court n NW2d 175 Co, Inc, 1; (2003), 467 Mich 350 656 approvingly: the Court stated wherein Interpretation Jersey: (Princeton, New In A Matter of University Press, p 26, 1997), United States Princeton explains Supreme that Justice Antonin Scalia Court statutory ejusdem generis canon of construction “stands items, proposition that when a text lists a series of to be general included in the list should be understood term instance, if the same sort. For someone limited to items of staples, screws, nails, rivets, speaks using ‘tacks, and surely things’ things,’ general refers to term ‘other other fasteners.”[4] other 418.315(1), language in MCL Court addressed the The Weakland injured employer supply provides also that shall which “[t]he teeth, service, crutches, limbs, eyes, eyeglasses, employee artificial dental

Opinion Court Supreme The Court noted that it has utilized this statutory canon of frequently construction in defining the scope of a broad term following spe- a series of cific Weakland, supra items. at 349.

Here, damages pain, or loss due to suffering, incon venience, physical impairment, physical disfigure clearly ment relate to damages sustained an indi plaintiff vidual surviving rather than damages sus tained next of kin in a wrongful-death action who .5 represented are personal representative There is no specific mention of losses unique to person relatives of a who has died, such as society loss of companionship.6 There are at least four other statutes that we are aware of in which our Legislature has defined noneconomic loss or damage specifically as including society loss of and com panionship, MCL 600.2945, 600.2969, 600.2970 and hearing apparatus, appliances necessary cure, and other so far as rea- sonably possible, injury” Weakland, and relieve from the effects of the supra ruled, ejusdem at 348. The generis, Court under the doctrine of phrase appliances” adaptive “other denoted other artificial aids that directly condition, serve to ameliorate effects aof medical and this did plaintiff sought not include a van through to have covered compensation worker’s benefits. Id. at 350. include, part, Persons entitled to under the spouse, children, descendants, parents, grandparents, “deceased’s brothers 600.2922(3). sisters[.]” 6 Michigan Jury concerning wrongful-death Model Civil Instruction damages closely parallels and lists such items of expenses, support, funeral service, and burial loss of financial loss of loss gifts gratuities, parental or training guidance, other valuable loss of and society companionship. as well as loss of and M Civ JI 45.02. None of directly these is suffering § mentioned in 1483. Pain and are also men tioned, they expressly pain but are suffering defined as conscious and 45.02(2). occurred hand, before death. M Civ damage JI On the other wrongful damages instructions general pain outside death list such as and suffering, anguish, fright shock, pleasure, mental and denial of social embarrassment, humiliation, physical impairment, physical disfigure and ment. M Civ JI 50.02 and 50.03. v Patel has not done so However, Legislature 691.1416.7 companionship has society verbiage Loss of and here. back far as 1899. dating in case law as been included We 60; 79 NW 934 Fisher, Lafler noneconomic only examples can conclude in 1483 are not of the specifically enumerated § losses or as those associ class, character, nature kind, same Therefore, action. under ated with a ejusdem “other noneconomic generis, the doctrine of does not refer to loss,” 1483(3), as used § to wrongful-death noneconomic losses related actions. only into consideration

Taking statutes, we conclude that intended exclusively to all areas of a govern wrongful- expressed language, including death action as its and that the damages, Leg- the award of noneconomic did not intend the to limit those damages islature products-liability 600.2945, provides MCL which definitions related to “any actions, type pain, suffering, defines noneconomic loss as inconve nience, physical impairment, disfigurement, anguish, mental emotional distress, society companionship, consortium, injury loss of loss of reputation, humiliation, nonpecuniary damages.” 600.2945(f) or other MCL repealed provisions (emphasis added). 600.2969, MCL under its own Janu ary 1, 2003, against related to an action financial insti included definitions computer-date failures, and it tutions for defined noneconomic “pain, suffering, inconvenience, physical impairment, disfigurement, distress, society companionship, anguish, mental emotional loss consortium, injury reputation, humiliation, nonpecu other loss of niary computer 600.2969(1)(1) date failure.” MCL caused repealed provisions added). 600.2970, (emphasis its Janu MCL under own ary computer-date 1, 2003, failure and defined related to actions for 600.2970(1)0). identical to MCL 600.2969. MCL' liability systems, sewage-disposal 691.1416, MCL which relates specifi comparable statutes, to the above defines noneconomic society companionship. cally including 691.1416(f). loss of App 126 256 112 Opinion of the Court in a damages -wrongful-death, medical-malpractice action.8

Moreover, it principle is well-known the Leg- that presumed islature is to be aware of all stat- existing utes when a new enacting Dep’t statute. Walen v Corrections, 248; 443 Mich 240, 505 NW2d 519 (1993). portions The relevant the had long been estab- lished when the 1993 amendment was enacted. See Courtney, supra 228-229; at see also historical and statutory notes to 2922. Presuming § that the Legisla- ture was aware provisions of the damage-award cap damages ambiguous Even if we were to regard find the apply wrongful-death actions, legislative whether it was intended to history in the light note, above, sheds no on the issue. We first as stated amendment, exception before death was included as an and no cap applicable. Legislature was One could reason that the involved in enacting original statute in 1986 did not believe that the wda was con trolling, thereby necessitating specific reference to death in the stat However, necessarily Legislature ute. it does not follow that the in 1993 acting only legislative was under the same belief. The intent that is rele construing in Legislature vant a statute is the intent of the that enacted Assoc, Dep’t Treasury, the statute. See Columbia LP v 9; (2002). Moreover, n specific the inclusion of the may part clearly reference to death in 1986 have been of an effort to definitively proclaim position Legislature’s related to capped, accepting applicable, death would not be that the wda was but merely position by reinforcing referencing legis death. A review of the analysis any lative connected to the 1993 amendment has not revealed respect Legislature’s deleting information with intention in death statutory language. rely from the Defendants on Senate and House Journal multiple attempts entries that do in fact indicate to include death as an exception $500,000 cap that would have resulted in a on noneconomic wrongful 274, 953, related to death. 1993 Journal of the Senate 993-994, 1007; However, contrary 1995 Journal of the House 1061. argument cap defendants’ that this established an intent to in cap tier, journal actions and to them at the lower ways. attempt entries can be viewed in two distinct to add death as exception may part place have been anof effort to some limit on wrongful-death damages, opposed cap all, noneconomic assuming to no at by legislators governed a belief that the otherwise the situa tion, may part placement or it have been of an effort to avoid of a at $280,000. way, the lower speculating amount of Either we would be regarding Legislature’s intent. v Patel it was incumbent on the wda, include some specifically 1483 to § indi- cate its intent cap applied wrong- ful-death actions in order Keep- to avoid conflict. this ing presumption mind, the failure to so indi- reasonably cate leads to the conclusion that intent legislative was to exclude wrongful-death actions from the ceilings 1483, espe- contained § cially simultaneously where no was change made to the wda to reflect a limit on If damages. we were to conclude that the damages cap controlled, it would result at best, plaintiffs from a standpoint, in a recov- ery $500,000; limited to equal amount to the limit on damages recoverable for some short of specific death. Without direction from the Legislature, we are prepared say that the Legislature place intended to an equal or lesser value on a per- son’s life.

After reviewing plain of 1483 and § considering legislative history, it is clear to us the Legislature did not intend a wrongful-death action to be governed cap. the damages

Assuming and the con- flict a manner that reconciled, cannot be the case law would still direct us to conclude that the gov- erns.9 Where there is statutes, conflict between two 9 subject pur Two statutes that relate to the same or share a common pose pari together law, are in materia and should be read as one if even they contain no reference to one another and were enacted on different Community College Dep’t Treasury, App dates. Jackson v 241 Mich of 673, 681; (2000), quoting People Webb, 621 NW2d 707 458 Mich (1998). 580 NW2d 884 When two statutes lend themselves to a construc conflict, tion that avoids that construction should control. Id. Construc seemingly competing give tion of two statutes should effect to each with repugnancy, absurdity, Michigan out or unreasonableness. Humane Soci ety Comm, App 393, 401; v Natural Resources 158 Mich

Opinion of Court subject matter while specific which is one of specific only applicable, generally the other App 496, 501; prevails. Brown, statute In re appears that glance At first it 582 NW2d subject equally specific are to different both statutes specifically action matters. A relates has due to a person wrongful to a case where a died medical-malpractice could relate act, while a action spectrum possible harms. On the other to a wide hand, medical-malpractice specifically a action relates and inac- out of medical actions negligence arising action could relate to a tions, while wrongful-death malpractice, products medical liabil- setting involving torts, intentional and so forth. How- ity, negligence, ever, specific types the context of the statute, recoverable under each we find the wda be specifically superior type because it more denotes the by the to be considered trier fact.10 Supreme People (1987). Bewersdorf, 55, 68; Our Court v 438 Mich (1991), stated: NW2d may appear together Statutes which to conflict are to be read reconciled, possible. Detroit, if Detroit Police Ass’n v Officers 44, 65; People Buckley, (1974); 391 Mich 214 NW2d 803 302 Mich 12, 22; However, actually (1942). 4 NW2d 448 where two statutes conflict, Royal City both cannot stand as the law. Winter v Oak Manager, 259, 265; (1947); 317 Mich 26 NW2d 893 Bd Ed v Blon- dell, 528, 531; (1930). 251 Mich 232 NW 375 Here, together wda; § 1483 can be read and reconciled with the the dam- ages being apply medical-malpractice construed to in all cases in plaintiff damages except which the seeking wrongful-death damages, seeks noneconomic for those cases case, in which the would control. nugatory portion requiring To rule otherwise would render that of the wda the trier of fact to determine the amount of in an amount that is equitable. general purpose ruling fair and Our leaves intact the aim and each statute. again, statutes, assuming Once this is a direct conflict between the necessarily finding, made, which would include which we have not that society companionship “other noneconomic loss” included loss of standard, wrongful-death damages. other v Patel Ultimately, the focus needs to be on opposed to the in which the act setting negligent. award is the damage occurred because the central affirm the ruling issue of debate. We trial court’s award of governs damages. noneconomic wda III. NEW TRIAL MOTION FOR REMITTITUR OR found that in this Having governs action, thereby any statutory removing on the amount ceiling damages plaintiff can it is recover, necessary to review argument defendants’ trial court erred failing grant the motion for trial, remittitur or new where the court found the award to be excessive. damage A on a motion ruling pre- for remittitur or new trial mised on a claim damage award was exces- sive is reviewed for an abuse of discretion. Palenkas v Beaumont Hosp, provides: MCR 2.611(A)

(1) may granted par- A new trial be to all or some ties, issues, on all or some of the whenever their substantial rights materially affected, are following reasons: (c) inadequate damages appearing Excessive or to have by passion prejudice.

been influenced or

(d) clearly grossly inadequate A verdict or excessive. provides MCR that if a 2.611(E)(1) “court finds that only . error the trial is the . . excessiveness of verdict, may deny it a motion for new trial on days condition party that within the nonmoving entry consent in an writing judgment App highest . amount found the court to be the . . . . . support.” the evidence will amount the motion for remittitur order denied provided new trial that the motion was denied for the record, reasons stated on the record. On the the trial was excessive, court found that the verdict but con amount; cluded that it could not set a remittitur therefore, the motion was denied. Plaintiff has not cross-appeal challenging filed a the trial court’s con damage excessive, clusion that the award was appellants merely agree defendants, here, with the court’s conclusion that were excessive. To preserve appellee an review, issue for must file a cross-appeal. 7.207; MCR Barnell v Co, Inc, Taubman There damage fore, the issue whether the award was exces finding sive, or whether the trial erred in court properly excessive, award to be is not before us. ruling However, we do note that the trial court’s damage from the bench excessive, award was interpreted context, when examined in could be as a ruling nondefinitive on excessiveness, the issue of considering judge’s concern that he had not been present at trial and thus could not set remittitur open opportunity such, amount. As we leave the trial court on remand to revisit the issue.

Treating ruling finding the trial court’s as one damage taking excessive, award to be into con- 2.611(A)(l)(c)-(d) (E), sideration MCR we hold failing that the trial court abused its discretion in amount, set a remittitur it where did not order a new Clearly, allowing trial. an award that the trial court found stand, excessive to without avenue of relief materially defendants, for the affects defendants’ sub- Jenkins v Patel 131 stantial rights. Were the trial court’s ruling stand, to defendants would be obligated pay a judgment the court found to unsupported by be the evidence.

We are sympathetic to the trial court’s how- plight; ever, on remand the court is to make a concerted effort a to set remittitur amount under MCR 2.611(E). There is no court or in a judge superior position to rule on this issue and set a amount; thus, remittitur we direct the trial court to render a decision and set the dollar However, amount. we do recognize that the trial court has the discretion option a grant only. new trial on damages MCR 2.611(A) and (E). The trial court is to be guided Supreme our Palenkas, supra at 532-533, take into Court’s ruling any prejudice consideration and passion jury may have been involved and dollar awards cases, eventually similar determine a remittitur amount that compensation reflects reasonable for the losses incurred as judged presented. the evidence A remittitur amount must be set at highest amount the evidence will support. MCR 2.611(E)(1); Palenkas, supra at 531.

IV.CONCLUSION We hold that the wda controls where a death arises out of malpractice, medical plaintiff where a seeks for death. wrongful Therefore, damages cap implicated is not here and does not limit recoverable plaintiff. Additionally, we hold that the trial court erred in fail- ing determine a remittitur amount after concluding award damage was excessive. We remand to the trial court determination of a remittitur 112 by Kelly, J. Concurrence may proceed parties accord- after which the amount, pursuant 2.611(E), ingly should court or, to MCR grant trial, for a trial on decide to only. a new NW2d Ecorse, Kellom may present party (1951) (“If had, a retrial is each testimony question damages.”).11 limited to such proceedings remanded for consistent

Reversed and jurisdiction. opinion. retain with this We do not P.J., concurred. Cooper, (concurring). I J. concur the result Kelly, separately majority,

reached but write to my plain language estimation, underscore that in pre- wrongful 600.2922, of the death act (wda), application (damages cludes the of MCL 600.1483 cap) in the instant case.

I. CONSTRUCTION STATUTORY If clear, of a statute is no further anal- ysis necessary expand Leg- is or to allowed what the clearly Mercy islature intended to cover. Miller v Hosp, (2002). 196, 201; Mem 644 NW2d 730 primary judicial interpretation goal The of statutes give Legislature’s is to ascertain and effect to the Twp Bd, intent. Nicholas v Meridian Charter “The first determining specific language criterion intent is the presumed of the statute.” Id. The plainly expressed. meaning have intended the Id. again, Once we allow the trial court to revisit the excessiveness issue definitively acknowledge should the court that it ruled never on the issue. Patel by Kelly, Concurrence J.

H. EXCLUSIVE REMEDY As majority, noted wda provides the remedy exclusive for cases. MCL provides part: 600.2921 relevant Actions on claims for which death result in shall prosecuted injured person not be after death of except pursuant pending to the next If an section. action is may at the of death bring time the claims be amended it under the next section. A failure to so will amend amount to a damages resulting waiver claim for additional [Emphasis from death. added.] Here, plaintiff sought damages losses sustained by decedent’s seven children and seven siblings. Because malpractice underlying action brought on behalf of decedent she had been alive would not have survived her death, plaintiff had no other recourse pursuant than file suit to the wda. wda contains the substance, procedures, and the exclusive measure of damages in an action brought against whose one action inaction has caused the death of another. The was not amended tort- reform and it legislation,1 statutory does not include cap damages. on MCL provides: 600.2922(6) every

In section, jury may action under this the or court damages jury award or the court shall fair consider and equitable, including under all the circumstances reasonable hospital, medical, expenses funeral, and burial for which liable; compensation pain the estate is reasonable for the suffering, conscious, by undergone and while the deceased person during period intervening the the between time of injury death; damages the and of the loss financial 1 legislative The most recent amendment to the wda occurred 2000. 112 256 Mich by Kelly, J. Concurrence society companionship of support and the the loss of the deceased. purpose considering plain meaning the

Thus, plaintiffs gov- it is action statute, clear specific provisions Those of the wda. erned provisions aris- no limit on noneconomic set wrongful-death ing claims. from Additionally, dam- does not list specific ages claims. 600.1483(3) damages as “dam- defines pain, suffering, ages inconvenience, or loss due to impairment, physical disfigurement, physical or other general than the term non-economic loss.” Other only specifies loss,” non-economic list “other injured person, an that are sustained makes no of a deceased. It also an estate survivors decedents’ survivors because reference to estates or obviously bring for dam- an estate could not action major- cap. agree ages I with the under the analysis ejusdem generis, ity’s under the doctrine expressio apply est also that of unius but would According doctrine, to this exclusio alterius. implies express thing mention in a statute of one things. Shanty Hoste v exclusion of other similar Mgt, n Inc, 561, 8; Creek Bradley Community (1999); Bd Saranac Schools 298; Thus, 565 NW2d Ed, express Legislature’s of varied mention specific severity, brought living medical- to claims precludes malpractice claimants the conclusion general loss” includes term “other non-economic Patel by Concurrence J. Kelly, losses attributable to a different and discrete set wrongful-death claimants.2 provisions

III. REFERENCE other to STATUTORY In further support the conclusion that the dam- cap not ages applicable to brought actions under I the would that note the has knowl- wda, edge of existing presumed laws and is to have consid- ered the effect of new laws on all existing laws. Dep’t Walen v Corrections, 248; 505 NW2d 519 In light of the fact the Legisla- is presumed ture to knowledge have that the pro- for vides additional damages in wrongful-death claims and the rejected fact that it opportunity the to list injury subject death as an to cap, the the inescapable conclusion is that the damages does apply not in wrongful-death cases from arising under- lying medical-malpractice claims. This conclusion is buttressed products liability cap reference act 600.2946a. In a statute analo- (plca), plca, gous the damages cap, the Legislature only specifically death, addressed but identified death as one of the two results the second-tier cap: contrast, specifically damages specific In wrongful- lists

death claims: medical, hospital, funeral, expenses and [Reasonable burial for compensation liable; pain which the estate is reasonable for the conscious, suffering, person undergone and while the deceased during period intervening injury between time death; support for loss of financial and the loss of society companionship 600.2922(6).] of the deceased. [MCL 256 J.

Concurrence Kelly, product liability, total amount In an action shall not exceed damages noneconomic loss for product $280,000.00, in caused either the the unless defect bodily permanent vital func- person’s loss of a death or tion, in case the total amount which $500,000.00. loss shall not exceed [MCL added).] 600.2946a(l) (emphasis clearly aware that while the was Thus, injury medical-malpractice possible a is death just products-liability claims, not it chose claims subject cap. identify injury to to it as IV. JUDICIAL CONSTRUCTION parties standing agree alone, that, cap However, clear. of the and the is wda parties argue and that when ambiguous provisions together, become are read judicial require judicial Although construction. appropriate ambiguous, if a is is statute construction respect to if reasonable minds could differ i.e., Chicago meaning, Co, v Rd Investment its Heinz (1996), 295; NW2d47 this Court is Mich obliged agree the statutes should be read not together to accept suggestion there is

or as true the ambiguity mere fact that mem- in these statutes. The hotly contest this issue does not bers the bar ambiguity. require this to conclude that there is Court pre- argument was Furthermore, I that no note why majority address, below, sented does pari Rather, read in materia. these statues should be simply must be it has been assumed that the statutes way considering we are their read in such a because application wrongful-death based on the- actions malpractice. ory It instructive to turn to of medical v Patel

Concurrence J. Kelly, explanation definition “In pari rule. materia” means “of the on matter; same the same sub- Blacks ject.” Dictionary (5th Law Two ed, 1979). stat- subject utes that or relate the same share a com- mon purpose pari are materia and be must read together law, they as one even if contain no reference to one another and were enacted on different dates. Jackson Community College Dep’t Treasury, App 673, 681; 621 NW2d 707 (2002). pari Statutes in materia are those which relate to the person thing, persons

same or or the same class of things, purpose. or which have a common It is the rule that particular statute, interpreta in construction of a or in the provisions, tion its relating all statutes the same sub ject, having general purpose, same should be read in it, together constituting law, connection one although times, containing enacted at different no refer Michigan Co, ence one to the other. v Bell Tel 374 [Detroit Mich 132 (1965).] NW2d 660 A statute pari is if materia even it inciden- tally subject refers to the same if scope its and aim are distinct and unconnected. Feld v & Robert Beauty 352, Charles Mich Salon, 360; 435 459 NW2d 279 (1990); Palmer v State Bd, Land Mich 304 Office Here, 628, 636; 8 NW2d 664 (1943). as discussed above, the damages cap relates to noneconomic dam- ages by attributable to suffered living medi- cal-malpractice purpose claimants. The of the dam- cap recently ages panel was discussed another of this Court: legislation

The 1993 that created the current finite limita- prompted by Legislature’s tion scheme was concern liability availability over the effect of medical on the affordability Legisla- of health care the state. See House by Kelly, J. Concurrence 20, 4404, April 4033, 4403, Analysis, 270 and HB SB tive purpose damages limitation was 1993, pp of the 1-2. The by reducing liabil- costs increases in health care control thereby reducing malpractice ity providers, medical care component care premiums, large of health a insurance 80; App 50, Murphy, 254 [Zdrojewski v Mich Id. costs. (2002).] NW2d 721 brought to claims hand, the relates

On the other obvious and survivors. “The a estate decedent’s purpose originally 1848, as PA enacted [wda], wrongful provide death action for No is to 38, there would have whenever, ensued, if had not death damages.” Morse, O’Neill been an action for scope 133; Thus, the and uncon- statutes are distinct and aim these occasion to con- that we have the nected. fact application to a statutes and their sider both these namely type involving wrong- a claim, discrete medical-malpractice arising from ful-death action concluding not the same as that we action, cause of paii Aside the two statutes in materia. must consider controversy appar- concerning this issue, from ently genu- something more other than occasioned likely inquiry, legal ine there would be no reason to together.3 these statutes consider apply reading addition, In improperly parts wrongful-death claims would render nugatory, a result I countenance. of the WDA cannot presume every word has some This Court should any meaning construction that and should avoid part surplusage. render statute would supra possible, 574. far as effect should Hoste, at As pari materia, should be read in the two rules Because the statutes apply. statutory argument do not construction advanced defendants’ v Patel Concurrence J. Kelly, every given phrase, sentence, be to clause, and word. Park, Pohutski Allen 641 NW2d damages specific Because the wda lists to wrongful-death applying claims, wrongful-death damages would render MCL 600.2922(6)nugatory. impermis- effect such an judicial through sible fiat would be to draw a line 600.2922(6). reading of MCL most On the other hand, apply wrongful-death arising actions underlying medical-malpractice from an cause of plain language action does not render the of the dam- ages cap nugatory. Although damages cap applies damages alleging malpractice,” “[i]n an action for our applies conclusion that the claims does not rob this of its full force. The damages cap applies “[i]n still an action for malpractice” alleging in which the and dam- ages are those listed the statute. accept argument

I also decline to defendants’ longer exception because death is no included as an damages, Legislature must have intended apply argument the statute to to death claims. This rejected plain be must because it circumvents the meaning unambiguous. a statute that is clear and It just argued could as well be elimi- exception already pro- nated the death because it was rendering vided for under the thus a death wda, exception guess regarding redundant. Our what the Legislature had in mind when it omitted death from damages cap impermissible speculation. would be Additionally, contrary Legisla- it is to the rule that the charged knowledge existing ture of all laws. supra Walen, 248. at

Case Details

Case Name: Jenkins v. Patel

Court Name: Michigan Court of Appeals

Date Published: May 29, 2003

Citation: 662 N.W.2d 453

Docket Number: Docket 233116

Court Abbreviation: Mich. Ct. App.