471 Mich. 540 | Mich. | 2004
Lead Opinion
We granted leave to appeal to consider the following three issues: (1) whether, and to what extent, MCL 600.6304 permits a trier of fact in a medical malpractice action to consider the plaintiffs own pre-treatment negligence to offset, at least in part, the defendant’s fault; (2) whether the medical malpractice noneconomic damages cap of MCL 600.1483 applies to a wrongful death action based on an underlying claim of medical malpractice, and assuming such cap applies, whether an action filed under the wrongful death act is subject to the higher medical malpractice noneconomic
Regarding the second issue, the Court of Appeals affirmed the trial court’s decision that the higher medical malpractice noneconomic damages cap of § 1483 applies to a wrongful death action. Consistent with our recent decision in Jenkins v Patel, 471 Mich 158, 173; 684 NW2d 346 (2004), in which we held that the medical malpractice noneconomic damages cap of MCL 600.1483 applies to a wrongful death action based on an underlying claim of medical malpractice, we affirm the decisions of both lower courts and hold that the higher
Regarding the third issue, the Court of Appeals, finding that MCL 600.6311 applies in this case because both the personal representative and the decedent were or would have been sixty years of age or older at the time of judgment, affirmed the trial court’s decision that plaintiffs award of future damages should not be reduced to present value. Because the term “plaintiff,” as used in § 6311, refers, for purposes of a wrongful death action, to the decedent, and because Mrs. Shin-holster, the decedent, was sixty-one at her death and at the time of judgment, we agree with the trial court’s interpretation of § 6311, and hold that, on remand, the trial court cannot reduce any future damages awarded to plaintiff to their present value.
I. BACKGROUND
In this medical malpractice action, Betty Shinholster (Shinholster), the decedent, made four visits to defendant Annapolis Hospital in April 1995, complaining of dizziness. Defendant Dr. Dennis Adams (Adams)
The jury found in plaintiffs favor and awarded the following damages: (1) $220,000 for past economic damages; (2) $564,600 for past noneconomic damages; (3) $9,700 each year in future economic damages for the years 1999 through 2003; and (4) $62,500 each year in future noneconomic damages for the years 1999 through 2003. The jury further concluded that Shinholster had been twenty percent comparatively negligent in her actions after April 7, 1995, by not regularly taking her prescribed blood pressure medication. Consistent with the jury’s verdict, the trial court entered judgment for plaintiff in the amount of $916,480, “subject to any applicable statutory limitation, statutory cap, adjustment regarding the computation of comparative negligence or adjustment pursuant to the collateral source rule.” The trial court denied defendants’ motion for reconsideration. The Court of Appeals affirmed but remanded for the recalculation of damages. Shinholster v Annapolis Hosp, 255 Mich App 339, 360; 660 NW2d 361 (2003). Defendants now appeal to this Court.
II. STANDARD OF REVIEW
Statutory interpretation is an issue of law that is reviewed de novo. People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).
III. ANALYSIS
This Court’s primary task in construing a statute is to discern and give effect to the intent of the Legisla
A. PLAINTIFF’S PRE-TREATMENT NEGLIGENCE
1. MCL 600.6304
MCL 600.6304 generally provides that the trier of fact in a tort action shall determine by percent the comparative negligence of all those who are a proximate cause of the plaintiffs injury and subsequent damages. In relevant part § 6304 provides:
(1) In an action based on tort. .. seeking damages for personal injury... or wrongful death involving fault of more than 1 person,... the court... shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:
*550 (a) The total amount of each plaintiffs damages.
(b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff....
(2) In determining the percentages of fault under subsection (l)(b), the trier of fact shall consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed.
(6) If an action includes a medical malpractice claim against a person or entity described in section 5838a(l), 1 of the following applies:
(a) If the plaintiff is determined to be without fault under subsections (1) and (2), the liability of each defendant is joint and several....
(b) If the plaintiff is determined to have fault under subsections (1) and (2)... the court shall determine whether all or part of a party’s share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties ....
(8) As used in this section, “fault” includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.[3 ]
While the Court of Appeals acknowledged that § 6304, on its face, requires a trier of fact to consider such negligence, it nonetheless relied on inferences drawn from this Court’s decision in Podvin v Eickhorst, 373 Mich 175; 128 NW2d 523 (1964), and authority from other states to reach its holding that the statute did not control the situation.
The Court of Appeals erred, in our judgment. Subsection 6304(l)(b) is unambiguous and calls for the trier of fact to assess by percentage “the total fault of all persons that contributed to the death or injury, including each plaintiff,” (emphasis added), as long as that fault constituted a proximate cause of the plaintiffs injury and subsequent damage.
With regard to what cause constitutes proximate cause,
“The proximate cause of an injury is not necessarily the immediate cause; not necessarily the cause nearest in time,*552 distance, or space. Assuming that there is a direct, natural, and continuous sequence between an act and an injury, * * * the act can be accepted as the proximate cause of the injury without reference to its separation from the injury in point of time or distance.”
Thus, under § 6304, if a defendant presents evidence that would allow a reasonable person to conclude that a plaintiffs negligence constituted a proximate cause of her injury and subsequent damage,
With regard to the Court of Appeals and Justice CAVANAGH and Justice WEAVER’S reliance, in their concurrence/dissents, on out-of-state authority reaching a different conclusion than our Legislature did on this issue, we presume that the legislators were aware of those approaches and chose to depart from them in establishing Michigan law.
The Court of Appeals also erred by mischaracterizing Shinholster’s conduct as merely creating the condition that led her to seek treatment. Decedent’s conduct may have done more than that. Her failure to properly take her medications may in fact have constituted a proximate cause of her death.
Because the trial court ruled that not all decedent’s pre-treatment negligence could be considered, defendants were limited to submitting evidence that decedent was comparatively negligent only from April 7 onward, when she first visited the emergency room. Yet, it is apparent from that testimony that, had a wider scope of questioning been allowed, just as defendants’ expert testimony supported the proposition that failure for ten days (April 7 through April 16) to regularly take her medications constituted a proximate cause,
While I do not dispute the correctness of the Chief Justice’s analysis in her concurrence/dissent concerning the prima facie elements of a tort cause of action, post at 586-587, I nonetheless believe that such analysis must be placed within the proper context. In a tort action, the plaintiff bears the burden of proving his prima facie case by demonstrating, as the Chief Justice has noted: (1) duty, (2) breach, (3) proximate causation, and (4) damages. If in this case, plaintiff had been permitted to present evidence demonstrating defen
In the instant case, as in all tort actions, plaintiff bore the burden of proving her prima facie case, irrespective of her own negligent conduct. It was only after the jury determined that plaintiff had satisfied this burden, and that defendants were liable, that the jury should have considered whether defendants satisfied their burden of demonstrating that, despite their own liability, they were not exclusively liable because plaintiff herself was also negligent. Because the challenged evidence in this case has nothing to do with defendants’ conduct, and thus nothing to do with whether plaintiff has satisfied her prima facie tort case, I believe that the Chief Justice’s assertion that “[l]imiting the new trial to damages only ignores the important fact that proximate cause is essential to a plaintiffs prima facie case,” is incorrect. Post at 587.
It is important to remember that the conduct of plaintiff, not that of defendants, is at issue here, and that the issue is whether defendants satisfied their burden of demonstrating that, although liable, they are not exclusively liable for plaintiffs injury.
Certainly, defendants could have argued that, had the jury been permitted to consider plaintiffs pre-treatment negligence, it would not have found that defendants had breached their standard of care at all or that defendants’ breach constituted a proximate cause of plaintiffs injury. However, defendants did not make such an argument. Instead, they argued only that evidence of plaintiffs own negligence should be considered by the jury in order to
B. CAP ON NONECONOMIC DAMAGES
For the reasons stated in Jenkins, supra at 166-173, we hold that the noneconomic damages cap found in MCL 600.1483 applies to a wrongful death action based on an underlying claim of medical malpractice.
(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 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.
While defendants have not contested that, as a result of her stroke, Shinholster satisfied § 1483(l)(a) and (b), they and the Chief Justice contend that the higher damages cap applies only if the injured person continues to suffer one of the enumerated conditions set forth in § 1483 at the time of judgment. Post at 592-593. Because Mrs. Shinholster was dead at the time of judgment, defendants and the Chief Justice reason that the higher cap cannot apply. In support of their position, they rely upon the fact that the statute specifically uses the present tense of verbs, i.e., “is” and “has,” and that the statute provides that the lower tier is to apply
[T]he only sensible way to interpret the statute is to hold that the Legislature intended [the higher cap] to apply to people who had been rendered cognitively incapable, quadriplegic, etc., from the accident in question. Betty Shinholster met this condition here: as the jury found, she suffered the requisite injuries from the accident — she endured these injuries in the several months she lay in a coma before she died. We thus hold that the higher, $500,000 cap applies.
The Court of Appeals agreed with the trial court:
*562 We construe the statute in accordance with the trial court’s ruling. Indeed, the adoption of defendants’ position would lead to absurd and unfair results. For example, a person who endured months of paraplegia caused by medical malpractice but died of an unrelated and independent cause before the court’s verdict adjustments would be subject to the lower cap, whereas a similar person who died a day after the court’s verdict adjustments would be subject to the higher cap. We view the better approach to be that advocated by plaintiff and adopted by the trial court. Under this approach, the point of reference for determining whether the injured person fits within MCL 600.1483(l)(a), (b), or (c) is anytime after and as a result of the negligent action. Therefore, because Shinholster was rendered incapacitated by defendants’ negligence, the higher cap applies. [Shinholster, supra at 354.]
We agree with the results reached by the lower courts and hold that § 1483 permits a plaintiff to recover a maximum of $500,000 in medical malpractice noneconomic damages if, as a result of the defendant’s negligent conduct, the plaintiff at some point thereafter, and while still living, suffered one of the enumerated conditions of § 1483. We base this interpretation on several textual indicators contained in § 1483 and other pertinent statutes.
First, this interpretation of § 1483 is consistent with the text of the statute itself, which, as noted, provides that the lower tier applies “unless, as the result of the negligence of 1 or more of the defendants, 1 or more of the following exceptions apply.. ..” (Emphasis added.) As long as, at some point after the defendant’s alleged negligence occurred and before the decedent’s death, it could be said that, “as the result of the negligence of 1 or more of the defendants .. . [t]he plaintiff is hemiplegic” or the plaintiff “has permanently impaired cognitive capacity” or “[t]here has been permanent loss of or damage to a reproductive organ,” the higher damages
Third, we believe that the interplay between the wrongful death act, particularly § 2922(6), and § 1483 provides additional textual support for our understand
Finally, in asserting that the higher damages cap of § 1483 applies only where the plaintiff is suffering one of the conditions enumerated in the statute at the time of judgment, we believe that defendants and the Chief Justice give extraordinary and undue weight to the fact that the Legislature has used the present tense of the verbs in § 1483(1) (a) and (b). Particularly, in concluding that “the structure of § 1483(1) indicates that the
Further, we note that, had the Legislature truly intended that an injured party must continue to suffer the higher tier injury at the time of judgment, it knew how to make that intent specific, as shown by MCL 600.6311, infra, in which the Legislature states that this provision is to apply if “a plaintiff... is 60 years of age or older at the time of judgment” (Emphasis added.) Unlike § 6311, § 1483 does not provide such a clear temporal framework. Moreover, had the Legislature intended that the term “is,” as used in § 6311, mean what defendants and the Chief Justice assert it means in § 1483 (i.e., at the time of judgment), we see no indication in § 6311 that the Legislature qualified the term within the temporal framework of “at the time of judgment.”
Defendants and the Chief Justice fail to explain why the use of the present tense of verbs in § 1483(l)(a) and (b) demonstrates that the Legislature intended that a plaintiff suffer from one of the enumerated conditions at the time of judgment, rather than at the time the action is filed, the jury is selected, opening statements are made, the first witness takes the stand, closing statements are made, at the beginning of jury delibera
Because plaintiff in this case presented evidence from which it could be rationally concluded that, “as the
C. MCL 600.6311
While MCL 600.6306(l)(c), (d), and (e) provide that all future damages awarded to a plaintiff be reduced to gross present value,
The trial court held that, for purposes of § 6311, the term “plaintiff” refers to the decedent in a wrongful death case, and that because Shinholster was sixty-one at the time of her death, she necessarily would have been “60 years of age or older at the time of judgment.” Thus, § 6306(l)(c), (d), and (e) do not apply. Although the Court of Appeals found that § 6311 is “ambiguous with regard to the term ‘plaintiff as applied to wrongful death cases,” Shinholster, supra at 357, that Court declined to resolve the issue, holding that § 6311 applies because both the personal representative and the decedent were or would have been sixty years of age or older at the time of judgment:
MCL 600.6311 specifically refers to “a plaintiff who is 60 years of age or older ...” (emphasis added). Accordingly, we could potentially hold that because the plaintiff here— Shinholster’s personal representative — was over sixty, the MCL 600.6311 exception applied. However, we note that MCL 600.6306 also uses the term “plaintiff” in referring to comparative negligence. See MCL 600.6306(3)(“the total judgment amount shall be reduced ... by an amount equal to the percentage of plaintiffs fault”). Clearly, this reference to “plaintiff” is not a reference to a personal representative in a wrongful death case, because the personal representative would not be the one evaluated for comparative negligence; instead, the decedent would be so evalu*570 ated. We conclude that the statues at issue are essentially ambiguous with regard to the term “plaintiff” as applied to wrongful death cases.
However, it is not necessary, in the instant case, to resolve the ambiguity in MCL 600.6311. Indeed, both the “plaintiff” (i.e., the personal representative and the person who brought the lawsuit) and the decedent in this case satisfied the MCL 600.6311 exception. Accordingly, the trial court did not err by refusing to reduce the amount of future damages to present value. [Shinholster, supra at 356-357.]
The doctrine of noscitur a sociis, i.e., that “a word or phrase is given meaning by its context or setting,” affords us some assistance in interpreting § 6311. See G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 420; 662 NW2d 710 (2003). We apply this doctrine to include the other provisions of Chapter 63 of the Revised Judicature Act because the term “plaintiff” does not stand alone here, and cannot be read in a vacuum. Instead, “[i]t exists and must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute . . . .” Arrowhead Dev Co v Livingston Co Rd Comm, 413 Mich 505, 516; 322 NW2d 702 (1982). “Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context.” G C Timmis & Co, supra at 421.
MCL 600.6305(2) provides, in part:
In the event of death, the calculation of future damages shall be based on the losses during the period of time the plaintiff would have lived but for the injury upon which the claim is based.
Further, MCL 600.6306(3) provides, “If the plaintiff was assigned a percentage of fault. . . the total judgment amount shall be reduced ... by an amount equal
However, our inquiry into the application of § 6311 in the instant case does not stop there. Rather, § 6311 states that it applies if the plaintiff is “60 years of age or older at the time of judgment.” (Emphasis added.) Because the term “plaintiff” refers to the decedent in a wrongful death action, and because Shinholster was sixty-one at her death and at the time of judgment,
IV CONCLUSION
Because § 6304(1) requires, without exception, that a trier of fact be permitted in all “personal injury, property damage, [and] wrongful death” tort actions to consider the conduct of all parties whose conduct has constituted a proximate cause of plaintiffs damages,
255 Mich App 339, 352-354; 660 NW2d 361 (2003).
Because Adams died during the pendency of this case, his wife, Katherine Adams, was appointed as the personal representative of his estate and substituted as a party.
See, also, MCL 600.2959, which provides:
In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the court shall reduce the damages by the percentage of comparative fault of the person upon whose injury or death the damages are based....
Moreover, MCL 600.6304(6) expressly acknowledges that a plaintiff may be determined “to have fault” in “a medical malpractice claim ....”
See, also, Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994), and M Civ JI 15.01 which provides the following definition of proximate cause:
When I use the words “proximate cause” I mean first, that the negligent conduct must have been a cause of plaintiffs injury, and second, that the plaintiffs injury must have been a natural and probable result of the negligent conduct.
Because damage cannot arise on its own, but must flow from an injury, we disagree with Justice Cavanagh’S assertion in his concurrence/dissent that the majority “subverts the text of MCL 600.6304” by focusing on “plaintiffs injury” rather than “plaintiffs damage.” Post at 598. Damage can only be the result of an injury. That is, first an injury to plaintiff must exist and the trier of fact must then determine whether plaintiff constituted a proximate cause of such injury before there is any need for the trier of fact to focus on plaintiffs damages. Thus, we believe we are correct when we state at p 552 that § 6304 applies where plaintiffs pre-treatment negligence constituted a proximate cause of her “injury and subsequent damage . ...”
In her opinion, Justice Weaver criticizes the majority because it “does not offer any analysis regarding why it is appropriate to consider plaintiffs pretreatment negligence as a proximate cause of her death, but simply states that it may be considered.” Post at 603. However, on pp 551-552, we analyze the language of § 6304 in support of this holding. Such language is the only reason why it is “appropriate” to consider pretreatment negligence.
In her opinion, Justice Weaver asserts that “all the other state courts that have considered the question whether a patient’s own pretreatment
It is possible to hypothesize situations where a plaintiffs pretreatment negligence will do nothing more than create the condition leading the plaintiff to seek treatment. In such a situation, the negligent practitioner might be found to constitute a superseding cause that produced an injury different in kind. For example, if a person negligently broke her leg and during surgery to set the leg the doctor cut an artery causing her to bleed to death, the decedent’s original negligence could be said to have done no more than bring the plaintiff to the operating table.
One of defendants’ experts, Dr. Bradford Walters, testified as follows:
Q. Does Mrs. Shinholster have a duty to take her medication as prescribed?
A. She does.
Q. I want you to assume for this next question that as of April 7, 1995 and continuing through April 16th, 1995 when Mrs. Shinholster went into the hospital, I want you to assume that she did not take her Procardia as prescribed.
A. So assumed.
Q. I want you to assume she maintained her normal habit and routine regarding that, and she only took it when she didn’t feel weU[J
A. I will assume that.
Q. Assuming that to be true, do you have an opinion based upon a reasonable degree of medical certainty that Mrs. Shinholster’s failure to take the Procardia as prescribed from April 7 through April 16, 1995 was a proximate cause of her stroke and ultimate death?
*555 A I think it was one of the reasons, yes. It was a proximate cause.
Q. Why would her failure to take her medication as prescribed be a proximate cause of her stroke and death?
A. One of the worst things that can happen to a patient who has high blood pressure is to take their medication intermittently. The blood pressure comes down. The medication wears off. The blood pressure soars up. The blood pressure comes down. If and when they take it again, it’s sort [oí] like a hammer hit to the brain each time that happens.
When blood pressure medications are taken on a regular basis there’s a much smoother lowering of blood pressure and you don’t get those spikes up and down and up and down.
Those spike[s] up and down can possibly cause what happened to Mrs. Shinholster and a stroke like this ....
Q. So one of the things you have [a] problem with Betty Shinholster is she must not have been taking her meds as prescribed. Is that what you believe?
A. That’s what I believe.
Q. Do you believe that caused her death?
A I believe it was one of several factors. Whether I can say it is the cause, the ultimate cause, would be nice for black and white purposes. But nothing is quite that black and white. But I think it was one part of a jig saw puzzle, and that was definitely one piece.
Q. Let me ask you this, sir: If she had taken her blood pressure medication exactly as the doctor told her to do you believe she would he alive?
A. I think there was a good chance that she may have been.
While a remand for a determination of damages only is generally disfavored by this Court, see Garrigan v LaSalle Coca-Cola Bottling Co, 373 Mich 485, 489; 129 NW2d 897 (1964), such remand is proper “when liability is clear.” Burns v Detroit, 468 Mich 881; 658 NW2d 468 (2003), citing Bias v Ausbury, 369 Mich 378, 383; 120 NW2d 233 (1963). See, also, Peisner v Detroit Free Press, Inc, 421 Mich 125, 129; 364 NW2d 600 (1984); Smith v Chippewa Co Bd of Co Rd Comm’rs, 381 Mich 363, 381; 161 NW2d 561 (1968). Here, neither at trial nor on appeal have defendants argued that plaintiffs pre-treatment negligence affected the proper standard of care defendants owed to plaintiff. Defendants have only sought to admit evidence of plaintiff’s pre-treatment negligence in an effort to offset the extent of their liability. That is, while defendants acknowledge that they have breached the appropriate standard of care, and, thus, are liable to some extent for plaintiff’s injuries because they were “a” proximate cause of such injuries, they also assert that plaintiff’s pre-treatment negligence also was “a” proximate cause of plaintiffs injuries and, thus, have requested that such negligence be considered by the jury in determining which party is responsible for what percentage of proximate causation. Accordingly, given the particular facts and circumstances of this case, I would remand for damages only.
In response to Chief Justice CORRIGAN’S assertion in her concurrence/dissent that “defendants have preserved the argument that a new trial on all issues is required because the proximate cause issue affects liability,” post at 586 n 2, I note that in the quoted portion of defendants’ brief, defendants only contend that, had plaintiffs pretreatment negligence been considered by the jury, it may have found that “such negligence was a proximate cause of the fatal stroke” (emphasis added). That is, defendants never contend that they are not liable because, had plaintiffs pre-treatment negligence been considered by the
Further, I find the citations of MCL 600.2959 and M Civ JI 11.01 unpersuasive in support of such position. Post at 588-589. Both the statute and the jury instruction expressly address comparative fault, which generally comes into play only during the damages phase of trial, after the jury has determined that a plaintiff has proven her prima facie tort case. While, as the Chief Justice correctly asserts, evidence may be presented throughout trial regarding a plaintiffs comparative fault, post at 589, such evidence generally does not affect whether a defendant was liable at all for a plaintiffs injury, but rather the extent of his liability. Where such evidence is sufficiently intertwined with liability, however, there is absolutely no barrier to the appellate court remanding for an entirely new trial. Because defendants themselves, unlike the concurrence/dissent, have never argued that, “had the jury been permitted to consider plaintiffs pre-treatment negligence, it would not have found that defendants breached their standard of care or that defendants’ breach was a proximate cause of plaintiffs injury,” I continue to believe that a remand for damages only is warranted under the circumstances of this case.
A majority of this Court favors remanding this case to the trial court, but there is no majority in favor of any specific type of remand. Three justices favor remanding this case for an entirely new trial, one justice favors remanding this case for a determination of damages only, and three justices favor no form of remand at all. It is regrettable that no further guidance can he offered to the trial court.
I am concerned that, if this Court were to accept Chief Justice Corrigan’S assertion that this case he remanded for an entirely new trial, we would be required to remand for an entirely new trial in virtually all cases in which not every single aspect of a plaintiffs pre-treatment negligence was fully considered at trial. For instance, assume a case in which a defendant-doctor is found to be liable in a medical malpractice action in which he has breached the appropriate standard of care and has been determined to have been a proximate cause of the plaintiffs injury and subsequent damages. The trial judge has allowed the defendant to present evidence regarding the plaintiffs own alleged negligence and the jury accordingly has found the plaintiff to be ten percent liable for the damages and the doctor to be ninety percent hable. However, the defendant wanted evidence admitted at trial of one additional, albeit slight, instance of the plaintiffs own negligence that the trial judge ruled inadmissible. The defendant believes that, had this evidence been admitted, the jury would have found the plaintiff to have been twelve percent hable rather than ten percent and, thus, the defendant to have been eighty-eight percent rather than ninety percent hable. If an appehate court finds that the trial judge erred in ruling the additional evidence of the plaintiffs neghgence inadmissible, should a remand for an entirely new trial be required? In my judgment, it makes considerable sense, and represents a far more prudent use of judicial resources to remand for a redetermination of damages only in such a case, which would allow the defendant to present the additional evidence and the jury to determine whether the plaintiffs percentage of liability should be increased, and the defendant’s percentage of liability decreased, accordingly. Nothing, of course, would prohibit an appehate court from remanding for an entirely new trial in subsequent cases if the facts require.
Thus, for example, assume that a jury renders a $500,000 verdict at 5 P.M. on a Monday in favor of an injured party who, at the time of such verdict, was alive and clearly satisfied one of the enumerated higher cap injuries of § 1483. However, later that evening, the injured party dies. The next morning at 9 A.M., the trial court, expecting to grant damages pursuant to the higher tier, prepares to enter his post-verdict determination as required by § 6304. He is informed, however, that the injured party has died the prior evening. In accordance with the Chief Justice’s understanding, the judge would now be required to award the decedent’s survivors damages pursuant to the lower tier.
In asserting that, because the “death exception was eliminated when the statute was amended in 1993 to its current form,” this shows “that the Legislature intended to exclude death from the exceptions giving rise to application of the higher cap,” post at 592, we believe that the Chief Justice accords unmerited weight to the elimination of the “death exception” in interpreting the current version of § 1483. The 1986 version of § 1483 provided, in relevant 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.
Thus, under the former § 1483, which had a single-tiered system of noneconomic damages cap, if a death occurred, there was no cap on damages. However, the current § 1483 contains a too-tiered system of noneconomic damages cap, and no longer contains a “death exception.” By. eliminating the “death exception,” we believe the Legislature intended nothing more than that one of the statute’s two caps apply to limit noneconomic damages in every medical malpractice action, including those filed under the wrongful death act. We are unclear about the rationale relied upon by the Chief Justice in assuming that, because the Legislature eliminated death as an outright exception to the application of any cap, that it must have intended that death always fall under the lower cap. We see no rationale for assuming such a conclusion from the Legislature’s actions.
We note that defendants’ and the Chief Justice’s positions, taken to their inevitable conclusions, might just as well require that, if the injured
Absent specific language in § 1483 stating otherwise, and in light of the textual evidence set forth in this section, we are simply not persuaded that, whether the higher tier applies is to be viewed as a function of wholly arbitrary facts and circumstances concerning the specific time at which final judgment is rendered, such as the nature and congestion of the trial court’s docket, the existence of scheduling conflicts of the parties and their attorneys, or the sheer length of a trial. Nor can it reasonably be dispositive of whether the higher tier applies that a plaintiff has died shortly before or after the end of trial, or shortly before or after the post-verdict damages and cap determinations. See n 15. Nor do we understand why delaying tactics in the justice process should be incentivized in the perverse expectation that a plaintiff may not survive trial and judgment.
Section 6306 provides, in part:
(1) After a verdict rendered by a trier of fact in favor of a plaintiff, an order of judgment shall be entered by the court... in the following judgment amounts:
(c) All future economic damages, less medical and other health care costs, and less collateral source payments determined to be collectible under section 6303(5) reduced to gross present cash value.
(d) All future medical and other health care costs reduced to gross present cash value.
(e) All future noneconomic damages reduced to gross present cash value.
Further, no section in Chapter 63 of the Revised Judicature Act uses the term “plaintiff” in reference to the personal representative or the decedent’s estate.
At death, a deceased no longer continues to age, and by that same token, we hold that, at death, a deceased does not surrender her age or become without an age, hut rather, reasonably, for purposes of § 6311, retains her age.
Concurrence Opinion
(concurring). Although I agree fully with the majority analysis, I write separately to elaborate on my views concerning § 11(A)(1) of the opinion.
I. PREVIOUS JURISPRUDENCE
Not only does the clear language of MCL 600.6304 support the majority interpretation, but I believe that this interpretation is consistent with this Court’s previous jurisprudence concerning an original tortfeasor’s liability in light of subsequent medical malpractice.
“If a wound or other injury cause a disease, such as gangrene, empyema, erysipelas, pneumonia, or the like, from which deceased dies, he who inflicted the wound or other injury is responsible for the death... . He who inflicted the injury is liable even though the medical or surgical treatment which was the direct cause of the death was erroneous or unskilful, or although the death was due to the negligence or failure by the deceased to procure treatment or take proper care of the wound.. .. This rule is sometimes stated with the qualification that the wound must have been mortal or dangerous; but it is usually held that defendant is liable, although the wound was not mortal.”
. . . Defendant cannot exonerate himself from . .. liability by showing that under a different or more skilful treatment the doctor might have saved the life of the deceased and thereby have avoided the natural consequences flowing from the wounds. Defendant was not entitled to go to the jury upon the theory claimed unless the medical treatment was so grossly erroneous or unskilful as to have been the cause of the death, for it is no defense to show that other or different medical treatment might or would have prevented the natural consequences flowing from the wounds.
*575 The treatment did not cause blood poisoning; the wounds did that, and the most that can be said about the treatment is that it did not prevent blood poisoning but might have done so had it been different. [Id. at 278-279 (citation omitted).]
Accordingly, under Townsend, the original tortfeasor may be liable for a doctor’s subsequent negligence where such negligence merely failed to prevent a result that was a “natural consequence!] flowing from” such tortfeasor’s actions. See also People v Bailey, 451 Mich 657, 679; 549 NW2d 325 (1996) (“In the medical treatment setting, evidence of grossly negligent treatment constitutes evidence of a sole, intervening cause of death. Anything less than that constitutes, at most, merely a contributory cause of death, in addition to the defendant’s conduct.”).
In holding that in a medical malpractice action, the trier of fact should not be permitted to consider a plaintiffs pre-treatment negligence in apportioning fault, the Court of Appeals failed to recognize that § 6304 is predicated upon a comparative negligence scheme that “reduces the amount of the plaintiffs recovery, allocating liability in proportion to fault,” Jennings v Southwood, 446 Mich 125, 131; 521 NW2d 230 (1994), rather than upon a contributory negligence scheme that “act[s] as an absolute bar to plaintiffs who were only slightly at fault,” Klinke v Mitsubishi Motors Corp, 458 Mich 582, 607; 581 NW2d 272 (1998) (Kelly, J., dissenting).
The Court of Appeals stated:
“It would be anomalous to posit, on the one hand, that a health provider is required to meet a uniform standard of care in its delivery of medical services to all patients, but permit, on the other hand, the conclusion that, where a breach of that duty is established, no liability may exist if*577 the patient’s own preinjury conduct caused the illness or injury which necessitated the care.”
[W]e conclude that the trial court did not err in ruling that the jury could not consider Shinholster’s potential negligence in causing the condition for which she sought medical treatment in the first place. Given the preventable nature of many illnesses, to accept a contrary position would allow many health-care professionals to escape liability for negligently treating ill patients. [Shinholster v Annapolis Hosp, 255 Mich App 339, 347-348; 660 NW2d 361 (2003), quoting Harvey v Mid-Coast Hosp, 36 F Supp 2d 32, 38 (D Maine, 1999).]
Stemming from its concern that “ ‘no liability may exist if the patient’s own preinjury conduct caused the illness or injury which necessitated the care,’ ” or that if a trier of fact was permitted to consider a plaintiffs pretreatment negligence in apportioning fault, “many health-care professionals [would] escape liability for negligently treating ill patients,” the Court of Appeals apparently believed that § 6304 set forth a contributory negligence scheme that barred a plaintiff from recovering for injuries resulting from a defendant’s negligence if the plaintiff was even slightly at fault for such injuries. These beliefs are unfounded because, as previously mentioned, § 6304 sets forth a comparative negligence scheme. Nothing in § 6304 states or implies that it constitutes a contributory negligence scheme. By adopting a comparative negligence scheme in § 6304, the Legislature recognized, as this Court did in Placek v Sterling Hts, 405 Mich 638, 660; 275 NW2d 511 (1979), that such doctrine “most nearly accomplishes the goal of a fair system of apportionment of damages ... [by] ‘truly distributing] responsibility according to fault of the respective parties.’ ” (Citation omitted.) The fact
III. ADMISSIBILITY OF EVIDENCE
The majority opinion states that “under § 6304, if a defendant presents evidence that would allow a reasonable person to conclude that a plaintiffs negligence
Further, section 6304 does not require a trier of fact to consider when the fault occurred, but merely whether the fault was “a proximate cause of damage sustained by a party.” That is, contrary to the beliefs of the trial court, Court of Appeals, and plaintiff, § 6304 does not apparently distinguish between a plaintiffs “pretreatment” and “post-treatment” negligence by providing that only the latter may be considered in apportioning fault and determining damages. Rather, § 6304 specifically requires that a trier of fact be permitted to consider the negligence of “each plaintiff,” be it pretreatment or post-treatment negligence, if such negligence was “a proximate cause” of the plaintiffs injury and subsequent damages.
In summary, in a medical malpractice action in determining whether the plaintiffs own negligence has been “a proximate cause” of her injury and damages, I believe that the trial court must ensure that the defendant has sustained its burden of proof in presenting relevant evidence, that such evidence is sustained by either scientific or other reliable and verifiable findings, and that such evidence demonstrates that the plaintiffs specific injury and damages were a genuinely foreseeable, natural, and probable consequence of her negligence. In cases such as this, in which a plaintiffs allegedly negligent conduct relates to a specific diagnosed condition, combined with a failure to comply with a doctor’s prescribed regimen for that specific condition, I agree with the majority that a question of fact for the jury regarding whether plaintiffs own conduct constitutes a sufficiently “proximate cause” of her own injury has been presented. Because in most instances I do not believe that such matters bear a “proximate cause” relationship to injuries and damages suffered by a medical malpractice plaintiff, I do not view § 6304 as allowing defendants to speculate about, or to engage in generalized investigations concerning, a plaintiffs lifestyle, exercise habits, or diet.
IV CONCLUSION
Here, there was one indivisible injury, Shinholster’s fatal stroke, allegedly caused by the separate, independent acts of Shinholster herself and defendants. Had the injury been caused by the separate, independent negligent acts of defendants and another tortfeasor, the liability of each would be determined by the fault attributable to each. See Townsend, supra at 279.
I believe that the distinctions plaintiff, the trial court, the Court of Appeals, and other courts have attempted to draw between “pretreatment” negligence and “post-treatment” negligence are, not only without statutory basis, but also irrelevant. Why should a doctor who has treated the plaintiff in the past be held less at fault for his negligence than a doctor who has not treated the plaintiff in the past? Take, for example, the instant case, where Dr. Normita Vicencio, approximately one year before plaintiffs fatal stroke, prescribed to plaintiff medication to lower her blood pressure. Assuming that plaintiff had sought additional treatment from Dr. Vicencio, instead of defendants, and assuming further that Dr. Vicencio had acted in the same alleged negligent manner as defendants, plaintiffs alleged negligence would be considered “post-treatment” negligence, and, thus, admissible under both the lower courts’ and plaintiffs interpretation of § 6304. However, because defendants had not treated plaintiff in the past, plaintiffs alleged negligence would be considered “pre-treatment” negligence, and, thus, inadmissible under both the lower courts’ and plaintiffs interpretation of § 6304. Accordingly, defendants would be held more at fault because the trier of fact would not be permitted to consider plaintiffs “pre-treatment” negligence in apportioning fault in relation to determining plaintiffs damages. Because I see no basis in treating defendants any differently than Dr. Vicencio, I cannot agree with the lower courts’ and plaintiffs interpretation of § 6304. Plaintiffs alleged negligence should be considered regardless of whether defendants had treated plaintiff in the past.
“The assumption of a duty to protect the decedent while in defendant’s custody merely establishes a legal basis for holding defendant negligent. The mere existence of a duty does not automatically lead to the conclusion that the decedent’s fault should not be considered” when appointing fault. Hickey v Zezulka (On Resubmission), 439 Mich 408, 448; 487 NW2d 106 (1992) (opinion by Riley, J., joined by three other justices).
In permitting the trier of fact in a medical malpractice case to consider a plaintiffs negligence in apportioning fault and in determining the extent of a defendant’s liability, the majority is not altering the law of this state regarding the application of comparative fault in a tort action. See Brisboy v Fibreboard Corp, 429 Mich 540, 551-552, 556; 418 NW2d 650 (1988) (opinion by Cavanagh, J.) (affirming the jury’s determination that the decedent’s smoking habit, as well as his exposure to the defendant’s asbestos, were both proximate causes, fifty-five and forty-five percent respectively, of the decedent’s lung cancer and subsequent death, and remanding the case to the trial court for the appointment of damages
The authorities relied on by the Court of Appeals have also sometimes been confused by the doctrines of contributory and comparative negligence. See Harding v Deiss, 300 Mont 312, 318; 3 P3d 1286 (2000) (citing contributory negligence cases and stating, “Under [comparative fault], in any case where the patient was responsible for events that led to her hospitalization, the treating physician would not be hable for neghgent treatment.” This is simply a misstatement of the doctrine of comparative neghgence.
“[AJpplying the principles of comparative fault to a medical malpractice action, a physician is liable only for that portion of the plaintiffs damages that were proximately caused by the physician’s negligence.” Gray v Ford Motor Co, 914 SW2d 464, 467 (Tenn, 1996) (holding that the doctrine of comparative fault could properly be applied to medical malpractice actions so as to require an apportionment of fault between the estate of a decedent who acted negligently in causing her original injury and a physician who acted negligently in treating such injury). See also Wyatt v United States, 939 F Supp 1402, 1412 (ED Mo, 1996) (holding that under Missouri law, Mo Rev Stat 538.230, which requires the trier of fact “[i]n any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services” to “apportion fault among. . . parties,” it was proper for the trial court to reduce the plaintiffs medical malpractice damages in accord with the plaintiffs own negligence which “substantially contributed to initially cause” the reason for which the plaintiff sought medical treatment).
“This goal [of a fair apportionment of damages] is not served; rather, it is thwarted when a slightly negligent defendant is held liable for one hundred percent of the damages caused principally by the wrongful intentional conduct of a plaintiff.” Hickey, supra at 449.
I believe that the burden is upon the defendant to present relevant evidence substantiated by either scientific or other documented, reliable, and verifiable findings demonstrating that the plaintiffs injury and damages were a genuinely foreseeable, natural, and probable consequence of the plaintiffs alleged negligence.
“ ‘The pre-treatment health habits of a patient’.. . ‘are germane to the issue of proximate cause ....’” Bryant v Calantone, 286 NJ Super
Concurrence in Part
(concurring in part and dissenting in part). Although I agree with the majority that the noneconomic damages cap found in MCL 600.1483 applies to wrongful death actions alleging malpractice and that a jury is permitted in all “personal injury, property damage, or wrongful death” tort actions to consider a plaintiffs pretreatment negligence as comparative negligence to offset a defendant’s fault (provided evidence has been admitted that would allow a reasonable person to conclude such negligence was “a proximate cause” of the plaintiffs injury), I cannot join the majority’s treatment of the remaining issues and respectfully dissent.
First, because defendants were precluded from submitting evidence that arguably would have allowed a reasonable person to find that Betty Shinholster’s pretreatment negligence of failing to regularly take her prescribed blood pressure medication during the year preceding her fatal stroke was a proximate cause of her fatal stroke, I would reverse and remand for a new trial on all issues, rather than a trial on damages only.
I would further hold that the higher damages cap found in MCL 600.1483 does not apply to wrongful death actions alleging medical malpractice. MCL
Finally, I would hold that the jury’s award of future damages should have been reduced to present value pursuant to MCL 600.6306. MCL 600.6311 provides that the reduction to present value does not apply to “a plaintiff who is 60 years of age or older at the time of judgment.” I believe that MCL 600.6311 cannot apply in wrongful death cases because, in such cases, the true “plaintiff” is the estate, which is not a person and does not have an “age.”
I. ANALYSIS
A. A NEW TRIAL ON ALL ISSUES IS REQUIRED
Although I agree with the majority that decedent’s pretreatment negligence is a matter properly submitted to the jury, I do not agree that the new trial should be limited to damages only. Because of the trial court’s ruling that all decedent’s pretreatment negligence could not be considered, defendants were limited to submitting evidence that decedent was comparatively negligent from April 7 onward, when she first visited the emergency room. Yet, it is apparent from that testimony that had a wider scope of questioning been allowed, just as defendants’ expert testimony supported the proposition that her failure for ten days (April 7 through April 16) to take her medications was a proximate cause,
More importantly, the jury must make a determination of liability (including comparative fault), taking into account the improperly excluded evidence; thus, a new trial limited to damages only would not be appropriate. Whether defendants contested the jury’s finding that the standard of care was breached is irrelevant. In order to establish a prima facie case, plaintiff must prove: (1) a breach of the standard of medical care; (2)
In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the court shall reduce the damages by the percentage of comparative fault of the person upon whose injury or death the damages are based as provided in section 6306. If that person’s percentage of fault is greater than the aggregate fault of the other person or persons, whether or not parties to the action, the court shall reduce economic damages by the percentage of comparative fault of the person upon whose injury or death the damages are based as provided in section 6306, and noneconomic damages shall not be awarded. [Emphasis added.]
In addition, M Civ JI 11.01, the standard jury instruction regarding comparative negligence, provides:
The total amount of damages that the plaintiff would otherwise be entitled to recover shall be reduced by the percentage of plaintiffs negligence that contributed as a proximate cause to [his / her] [injury /property damage].
This is known as comparative negligence.
*589 (The plaintiff, however, is not entitled to noneconomic damages if [he / she] is more than 50 percent at fault for [his / her] injury.)
In other words, the standard jury instruction simply reduces MCL 600.2959 to its mathematical equivalent: in order for the plaintiff or the decedent’s fault to be more than the aggregate sum of the fault of all other applicable persons, the jury must place the plaintiffs fault at more than fifty percent.
Thus, both MCL 600.2959 and M Civ JI 11.01 assume that the jury has properly heard all evidence regarding liability and reached a determination of fault before damages can be assessed. If, during the trial, the jury was improperly precluded from considering evidence regarding the decedent’s comparative negligence, it follows that the jury’s determination of liability is flawed. If this determination of liability is flawed, it is impossible to ascertain the correct amount of damages. Therefore, I do not believe that it is possible to separate the issues of liability and damages, and believe a new trial on all issues is required. I would reverse the judgment of the Court of Appeals and remand this case for a new trial.
B. THE LOWER DAMAGES CAP APPLIES
For the reasons stated in Jenkins v Patel, 471 Mich 158; 684 NW2d 346 (2004), I agree with the majority that the noneconomic damages cap found in MCL 600.1483 applies to wrongful death actions alleging medical malpractice. I cannot agree, however, that the higher tier of the damages cap applies to such cases. Instead, I would hold that the lower tier applies to wrongful death actions alleging medical malpractice.
MCL 600.1483(1) provides:
*590 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 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. [Emphasis added.][4 ]
These questions should not have been submitted to the jury because the applicability of § 1483 is a question for the court. I would, therefore, take this opportunity to clarify that the question of the application of § 1483 is solely an issue for the trial court, not the jury.
Further, I believe that the lower tier damages cap of § 1483 applies in wrongful death actions alleging malpractice. In any wrongful death action, the plaintiff is seeking to recover for the decedent’s death, and death is not one of the statutory exceptions giving rise to the application of the higher cap. This Court does not have the authority to create an exception the Legislature has
In fact, it did do so in the previous version of the statute, but this death exception was eliminated when the statute was amended in 1993 to its current form. 1993 PA 78, effective October 1,1993. The history of the current version of § 1483 indicates that the Legislature intended to exclude death from the exceptions giving rise to the application of the higher cap. Although death was one of the exceptions enumerated in the prior version of the statute, it is conspicuously absent from the present version of the statute. The Legislature apparently made a policy decision that the survivors of dead medical malpractice victims are entitled to lesser damages than are living medical malpractice victims who are suffering from one of the three types of permanent conditions enumerated in the statute. This choice makes sense because it is not the surviving, permanently, and severely injured patient who is recovering damages in a wrongful death action, but the patient’s relatives or other survivors who have not suffered from these permanent conditions. Further, in enacting this aspect of tort reform legislation, the Legislature could well have chosen a policy that would help to limit the cost of malpractice insurance. Whether one agrees with such policy decisions, those decisions are solely within the Legislature’s authority to make. This Court may not question the wisdom of the Legislature’s policy choices; rather, this Court must enforce the statutory language as written.
Finally, the structure of § 1483(1) indicates that the Legislature intended that an exception, if it is applicable, apply at the time that the trial court makes its postverdict determination concerning whether the cap
For the same reasons stated in Jenkins, supra at 171-173, applying the lower damages cap does not frustrate the purpose of MCL 600.2922(6), which provides that the court or jury in a wrongful death action “may award . . . 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....” (Emphasis added.) As we noted in Jenkins, applying the lower damages cap to limit the amount of actual recovery by the plaintiff does not in any way limit the amount of the jury’s award. The jury or court may still award whatever amount it concludes is reasonable under MCL 600.2922(6); that amount, however, is subject to reduction under MCL 600.1483.
Therefore, because MCL 600.1483 does not include death as one of the enumerated exceptions to the lower
C. MCL 600.6311 DOES NOT APPLY TO WRONGFUL DEATH ACTIONS
MCL 600.6306 provides, in relevant part:
(1) After a verdict rendered by a trier of fact in favor of a plaintiff, an order of judgment shall be entered by the court. Subject to section 2959, the order of judgment shall be entered against each defendant, including a third-party defendant, in the following order and in the following judgment amounts:
(c) All future economic damages, less medical and other health care costs, and less collateral source payments determined to be collectible under section 6303(5) reduced to gross present cash value.
(d) All future medical and other health care costs reduced to gross present cash value.
(e) All future noneconomic damages reduced to gross present cash value.
(2) As used in this section, “gross present cash value” means the total amount of future damages reduced to present value at a rate of 5% per year for each year in which those damages accrue, as found by the trier of fact as provided in section 6305(1)(b).
Sections 6306(l)(c), (d), and (e), 6307, and 6309 do not apply to a plaintiff who is 60 years of age or older at the time of judgment.
Here, the trial court ruled that in wrongful death cases, the “plaintiff” referred to in § 6311 was the decedent. Because the decedent was over age sixty at the time of judgment, the trial court held that § 6311 applied. The Court of Appeals declined to determine whether § 6311 applied to the decedent or to the personal representative because both the decedent and the personal representative were over age sixty; therefore, the Court held that § 6311 applied in any event.
I believe that the exception does not apply in the case of a decedent: it applies only to a plaintiff who “is 60 years of age or older at the time of judgment.” At the time of judgment in a wrongful death action, the decedent is dead. Moreover, the decedent is not generally recognized as the ■ “plaintiff” in a wrongful death action.
At common law, a cause of action did not survive death. As we noted in Hawkins v Regional Med Laboratories, PC, 415 Mich 420, 428-429; 329 NW2d 729 (1982), “under common law, [causes of action] were terminated by the death either of the person injured or the tortfeasor. 1846 Rev Stats, ch 101, § 5.” The Legislature subsequently changed the common-law rule through the wrongful death provisions, allowing causes of actions to survive death through the creation of a “new” plaintiff, the estate. The estate is then represented by the personal representative: MCL 600.2922(2) provides that “[e]very action under this section [the wrongful death provision] shall be brought
Section 2922(2) does not compel the conclusion that the “plaintiff” in a wrongful death action is the personal representative. Rather, § 2922(2) simply requires that the action be brought “by” and “in the name of” that representative. The true plaintiff remains the decedent’s estate. Those who are entitled to share in the proceeds of a judgment obtained in the wrongful death action are enumerated in MCL 600.2922(3), and include relatives, a spouse’s children, and devisees and beneficiaries. These persons can be relevant only because they all may be entitled to a portion of the decedent’s estate. Unlike a living person, an estate does not have an “age”; therefore, § 6311 cannot apply to an estate. Because § 6311 does not apply to estates, it cannot be applied in wrongful death actions.
II. CONCLUSION
I agree with the majority that the clear and unambiguous language of MCL 600.6304(1) and MCL 600.2959 requires that a jury is permitted in all medical malpractice actions to consider a plaintiffs pretreatment negligence as comparative negligence to offset a defendant’s fault, provided evidence has been admitted that would allow a reasonable person to conclude such negligence was “a proximate cause” of the plaintiffs injury. I do not agree, however, that a new trial should be limited to damages only; rather, I would reverse and remand for a new trial on all issues.
Further, although I agree that the noneconomic damages cap of MCL 600.1483 applies to wrongful death actions alleging medical malpractice, I do not
Finally, I would hold that MCL 600.6311, which provides that the reduction to present value does not apply to “a plaintiff who is 60 years of age or older at the time of judgment,” cannot apply in wrongful death cases, because in such cases the true “plaintiff” is the estate, which is not a person and does not have an “age.”
Therefore, I would reverse the decision of the Court of Appeals and remand for a new trial.
One of defendants’ experts, Dr. Bradford Walters, testified as follows:
*584 Q. Does Mrs. Shinholster have a duty to take her medication as prescribed?
A. She does.
Q. I want you to assume for this next question that as of April 7, 1995 and continuing through April 16th, 1995 when Mrs. Shinholster went into the hospital, I want you to assume that she did not take her Procardia as prescribed.
A. So assumed.
Q. I want you to assume she maintained her normal habit and routine regarding that, and she only took it when she didn’t feel well[.]
A: I will assume that.
Q. Assuming that to be true, do you have an opinion based upon a reasonable degree of medical certainty that Mrs. Shinholster’s failure to take the Procardia as prescribed from April 7 through April 16, 1995 was a proximate cause of her stroke and ultimate death?
A. I think it was one of the reasons, yes. It was a proximate cause.
Q. Why would her failure to take her medication as prescribed be a proximate cause of her stroke and death?
A. One of the worst things that can happen to a patient who has high blood pressure is to take their medication intermittently. The blood pressure comes down. The medication wears off. The blood pressure soars up. The blood pressure comes down. If and when they take it again, it’s sort [of] like a hammer hit to the brain each time that happens.
When blood pressure medications are taken on a regular basis there’s a much smoother lowering of blood pressure and you don’t get those spikes up and down and up and down.
*585 Those spikefs] up and down can possibly cause what happened to Mrs. Shinholster and a stroke like this. . . .
Q. So one of the things you have [a] problem with Betty Shinholster is she must not have been taking her meds as prescribed. Is that what you believe?
A. That’s what I believe.
Q. Do you believe that caused her death?
A. I believe it was one of several factors. Whether I can say it is the cause, the ultimate cause, would he nice for black and white purposes. But nothing is quite that black and white. But I think it was one part of a jig saw puzzle, and that was definitely one piece.
Q. Let me ask you this, sir: If she had taken her blood pressure medication exactly as the doctor told her to do you believe she would be alive?
A. I think there was a good chance that she may have been.
I further note that, although Justice Markman argues, ante at 556 and n 11, that defendants have not argued that a new trial on all issues is required, defendants have preserved this issue on appeal. Defendants preserved the issue at trial by objecting to the trial court’s refusal to admit evidence regarding the decedent’s pretreatment negligence. Defendants also objected to the trial court’s modified jury instruction regarding the decedent’s comparative negligence, arguing that the jury should have been able to consider all of the decedent’s conduct.
On appeal, defendants again preserved the argument regarding liability and proximate cause. Issue I of defendants’ brief argues that “defendants were denied a fair trial by the trial court’s instruction on comparative negligence, which improperly restricted the jury’s consideration and proper allocation of the decedent’s comparative fault.” Defendants argued that the trial court’s limitation of evidence regarding the decedent’s comparative negligence, and the resulting modified jury instruction, “denied [defendants’] right to have their responsibility determined in accordance with the facts and the law, and for this, they must be granted a new trial.” Finally, defendants argued that defendants
On appeal to this Court, defendants also argued that a new trial was required because the trial court improperly limited evidence of comparative negligence, thus precluding the jury from considering all evidence regarding proximate cause:
The jury should have been allowed to consider whether the injury was proximately caused by the separate, independent act of the plaintiffs decedent.... If the stroke was caused by the separate and independent negligent acts of these doctors or even another tortfeasor . . . , the liability of each would be determined by the fault attributed to each....
Based on the evidence that was presented, and further evidence that could have been presented, it can only he concluded that a jury could have found that the decedent was neghgent prior to April 7, 1995 and that such negligence was a cause of the fatal stroke. The trial court’s limitation on the admission of evidence and its instructions to the jury were erroneous and inconsistent with substantial justice and not harmless error.
Thus, defendants have preserved the argument that a new trial on all issues is required because the proximate cause issue affects liability, as well as the argument that, in the alternative, their damages should be reduced.
In fact, this view is supported by the standard jury instruction regarding the burden of proof for malpractice cases. M Civ JI 30.03 provides:
The plaintiff has the burden of proof on each of the following:
a. that the defendant was professionally negligent in one or more of the ways claimed by the plaintiff as stated in these instructions
b. that the plaintiff sustained injury and damages
*588 c. that the professional negligence or malpractice of the defendant was a proximate cause of the injury and damages to the plaintiff
Your verdict will he for the plaintiff if the defendant was negligent, and such negligence was a proximate cause of the plaintiff’s injuries, and if there were damages.
Your verdict will be for the defendant if the defendant was not professionally negligent or did not commit malpractice, or if the defendant was professionally negligent or did commit malpractice but such professional negligence or malpractice was not a proximate cause of the plaintiff’s injuries or damages, or if the plaintiff was not injured or damaged. [Emphasis added.]
In the former version of § 1483, a one-tiered cap included “death” as an exception to the then-$225,000 cap:
(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.
(b) There has been an intentional tort.
(c) A foreign object was wrongfully left in the body of the patient.
(d) The injury involves the reproductive system of the patient.
*591 (e) The discovery of the existence of the claim was prevented by the fraudulent conduct of a health care provider.
(f) A limb or organ of the patient was wrongfully removed.
(g) The patient has lost a vital bodily function. [1986 PA 178, effective October 1, 1986.]
Concurrence in Part
(concurring in part and dissenting in part). I agree with the majority that MCL 600.6311 applies in this case and join that portion of the lead opinion in full. With respect to the applicability of the medical malpractice noneconomic damages cap, I concur only in the result because I remain committed to my position in Jenkins v Patel, 471 Mich 158; 684 NW2d 346 (2004). And finally, I must respectfully dissent from the majority’s decision allowing the trier of fact to consider plaintiffs alleged pretreatment negligence. I agree with the trial court and the Court of Appeals, as well as the Restatement and a majority of other jurisdictions, that it would be improper for the jury to consider plaintiffs pretreatment negligence. Thus, I would affirm the decision of the Court of Appeals.
Today, a plurality of this Court makes a mockery of tort law by holding that a jury can consider a plaintiffs pretreatment negligence to determine liability. Justice MARKMAN’s approach, allowing the jury to consider plaintiffs pretreatment negligence only when deter
It is an axiom of tort law that the defendant takes the plaintiff as he finds her. Wilkinson v Lee, 463 Mich 388, 396; 617 NW2d 305 (2000). Potentially eviscerating a defendant’s liability or reducing a plaintiffs damages on the basis of a condition that a plaintiff brings to the table ignores this foundational principle of tort law. It also opens the door to scrutiny of a medical malpractice plaintiffs pretreatment health habits and lifestyle in nearly every medical malpractice action. “[W]hatever the wisdom or folly of our lifestyles, society, through its laws, has not yet imposed a normative life-style on its members.” Ostrowski v Azzara, 111 NJ 429, 444; 545 A2d 148 (1988). Today’s majority imposes a judicially created normative lifestyle on the citizens of this state.
The majority also subverts the text of MCL 600.6304 when it holds that § 6304 requires the trier of fact to determine the comparative negligence of all who are a proximate cause of the plaintiffs injury. The statute actually states: “ ‘fault’ includes an act. . . that is a proximate cause of damage sustained by a party.” MCL 600.6304(8) (emphasis added). While the majority focuses on plaintiffs injury, its attention would be more properly focused on the plaintiffs damage.
The plaintiffs damage in a medical malpractice action is determined by the difference between the dece
“As a general rule, negligence by a patient that occurred before the malpractice and provided the occasion for the treatment that is the subject of the malpractice claim cannot give rise to a defense of comparative negligence.” Moore & Gaier, A Plaintiff’s Culpable Conduct, NY Law J 3 (Mar 3, 1998). Comment m to Restatement Torts, 3d, Apportionment of Liability, § 7, provides that the jury in a medical malpractice action cannot consider the plaintiffs conduct that created the condition that the doctor was employed to remedy. So, in this case, the trial court was correct to prevent the jury from considering plaintiffs failure to regularly take her medication.
In addition to the Restatement, I am persuaded by the wealth of authority from other jurisdictions that have refused to allow juries to consider a plaintiffs pretreatment negligence in medical malpractice actions. For example, the Florida Court of Appeals, in Matthews v Williford, 318 So 2d 480, 483 (1975), persuasively held that “conduct of a patient which may have contributed to his illness or medical condition ... simply is not available as a defense to malpractice which causes a distinct subsequent injury.. ..” See, also, Mercer v Vanderbilt Univ, Inc, 134 SW3d 121, 129-130 (Tenn, 2004); DeMoss v Hamilton, 644 NW2d 302,
Justice MARKMAN attempts to make a distinction between a distinct subsequent injury and an injury that would be part of the “natural and foreseeable result of the plaintiffs original negligence.” Ante at 554 n 9. This distinction, however, is a distinction without a difference when examining the proper damage in a medical malpractice action. Because a tortfeasor must take a plaintiff as he finds her, the plaintiff in Justice MARK-MAN’s examples would be taken as a plaintiff with a broken leg. Without the negligence of the doctor, a plaintiff with a broken leg could expect full recovery. Regardless of whether the doctor’s negligence results in death or in a poorly set leg, the damage in the case is the difference between the expected full recovery and the actual result. In neither example, can the plaintiffs negligence in breaking her leg be a proximate cause of the damage.
Because the majority mischaracterizes the damage and allows the jury to consider plaintiffs pretreatment negligence, I must respectfully dissent. I refuse to take
Concurrence in Part
(concurring in part and dissenting in part).
i
I dissent from the majority’s holding that pursuant to MCL 600.6304, plaintiffs pretreatment negligence may be considered by the jury in assessing comparative negligence because it may have been a proximate cause of plaintiffs death. Ante at 546.
To determine the comparative negligence of the parties, MCL 600.6304 provides that the trier of fact in a tort action shall determine the percentage of the total fault of all persons that contributed to the death or
As Justice CAVANAGH explains, the proper focus of the statute is on the plaintiffs damage, not the plaintiffs injury, and “[t]he plaintiffs damage in a medical malpractice action is determined by the difference between the decedent’s hypothetical life without the negligence of the doctor and the actual result.” Ante at 598-599.
Further, I would hold that the plaintiffs pretreatment negligence did not fall within MCL 600.6304’s definition of “fault” for the purposes of comparative negligence. While plaintiffs pretreatment negligence caused the need for care or treatment that led to the alleged medical malpractice, the plaintiffs pretreatment negligence was not a proximate cause of plaintiffs damages.
Proximate cause, or legal cause, as it is also known, involves examining the foreseeability of consequences, and considering whether a defendant should be held legally responsible for such consequences. Skinner v Square D Co, 445 Mich 153, 163-164; 516 NW2d 475 (1994). Deciding proximate cause is a policy determination of the courts:
“Proximate cause” — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of the ac*603 tor’s conduct. In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would “set society on edge and fill the courts with endless litigation. As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy. [Prosser & Keeton, Torts (5th ed), § 41, p 264.]
To be allocated as “fault” for the purposes of comparative negligence under MCL 600.6304, a plaintiffs negligence must be a proximate cause of the plaintiffs damages. The majority does not offer any analysis regarding why it is appropriate to consider plaintiffs pretreatment negligence as a proximate cause of her death, but simply states that it may be considered.
I note that all the other state courts that have considered the question whether a patient’s own pretreatment negligence could be considered a proximate cause of the patient’s damages for purposes of comparative negligence have ultimately decided that it should not.
ii
I join in full § III(B) of the lead opinion, recognizing that the medical malpractice noneconomic damages cap of MCL 600.1483 applies to a wrongful death action based on an underlying claim of medical malpractice and concluding that the higher cap of MCL 600.1483 applies when the injured person, at any time while still living and as a result of a defendant’s negligent conduct, fits with the ambit of MCL 600.1483(1).
I also join in full § III(C) of the lead opinion, concluding that because the term “plaintiff,” as used in MCL 600.6311, refers, for purposes of a wrongful death action, to the decedent, and because Mrs. Shinholster, the decedent, was sixty-one years old at her death and at the time of judgment, the damages awarded to plaintiff should not be reduced to their present value.
Because I would hold that the plaintiffs pretreatment negligence in this medical malpractice action did not fall within MCL 600.6304’s definition of “fault,” and therefore could not be considered for the purposes of comparative negligence, I would affirm the Court of Appeals on all counts.
The plaintiffs negligence after seeking treatment is not at issue in this case; the parties agree that a plaintiffs negligence after seeking treatment may he considered in a comparative negligence analysis. See Pietrzyk v Detroit, 123 Mich App 244, 248-249; 333 NW2d 236 (1983), and Jalaba v Borovoy, 206 Mich App 17, 23; 520 NW2d 349 (1994). The issue here focuses solely on plaintiffs conduct before seeking treatment.
It should he noted that plaintiffs pretreatment conduct and general health will be considered when the jury determines the amount of plaintiffs damages. For example, in this case, the jury found that decedent had a life expectancy of eight years, rather than the 15.44-year life expectancy provided by the mortality tables for a sixty-one-year-old woman in good health, or the ten to fifteen-year life expectancy that plaintiffs expert opined.
Although in 1996 the Tennessee Supreme Court held that a decedent’s negligence in causing the initial injury would be considered in apportioning fault for the purposes of comparative negligence, Gray v Ford Motor Co, 914 SW2d 464, 467 (Tenn, 1996), that case was overruled in May of 2004, by Mercer v Vanderbilt Univ, Inc, 134 SW3d 121, 125 (Tenn, 2004). In Mercer the court held that “a patient’s negligent conduct that occurs prior to a health care provider’s negligent treatment and provides only the occasion for the health care provider’s subsequent negligence may not be compared to the negligence of the health care provider.” Id. at 130.
But see, contra, Wyatt v United States, 939 F Supp 1402 (ED Mo, 1996).
MCL 600.1483 provides:
(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 apply as determined by the court pursuant to section 6304, in which case damages for noneconomic loss shall not exceed $500,000.00:
*606 (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.
(4) The 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. As used in this subsection, “consumer price index” means the most comprehensive index of consumer prices available for this state from the bureau of labor statistics of the United States department of labor.
MCL 600.6311 provides: “Sections 6306(l)(c), (d), and (e), 6307, and 6309 do not apply to a plaintiff who is 60 years of age or older at the time of judgment.”
Concurrence in Part
(concurring in part and dissenting in part). I fully agree with Justice CAVANAGH’s opinion. In addition, I join sections I, III, and IV of Justice WEAVER’S opinion.
