ZDROJEWSKI v MURPHY
Docket Nos. 224274, 226399
254 MICH APP 50
Submitted September 5, 2002. Decided November 15, 2002.
Leave to appeal sought.
The Court of Appeals held:
1. The trial court did not abuse its discretion in granting the plaintiff‘s motion to amend her complaint during trial to add a claim of res ipsa loquitor. The trial court correctly granted the motion pursuant to MCR 2.118(C)(1), which provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated as if they had been raised by the pleadings, and that amendment of the pleadings to conform to the evidence and to raise those issues may be made on motion of a party at any time, even after judgment. The trial court correctly ruled that the defendants’ failure to object to the admission of res ipsa loquitor evidence implied their consent to litigate the issue.
2. The trial court did not err in denying the defendants’ motion for a directed verdict on the plaintiff‘s claim that Murphy was negligent for failing to timely dictate his operative report. The defendants failed to cite authority holding that the rules of an external agency such as the Joint Commission on Accreditation of Healthcare Organizations, including rules governing when operative reports are to be completed, cannot be used to establish the defendants’ duty to the plaintiff. Although the trial court erred in denying the motion for a directed verdict in the absence of a showing by the plaintiff that she was harmed by the delay in the dictation of the operative report, allowing the verdict to stand would not be
3. The trial court did not err in denying Beaumont‘s motion for summary disposition of the plaintiff‘s claim of vicarious liability by the hospital for the negligence of Murphy, another physician, and a physician‘s assistant. There were genuine issues of material fact regarding whether the other physician and the physician‘s assistant were ostensible agents of Beaumont and whether one of them caused the plaintiff‘s injury. Even though a finding of ostensible agency with respect to Murphy should have been precluded by the existence of a relationship between the plaintiff and Murphy that predated the plaintiff‘s admission to Beaumont, the defendants, by failing to object to a jury instruction that Murphy should be deemed an agent of Beaumont, have effectively waived their claim of error regarding the trial court‘s denial of Beaumont‘s motion for summary disposition.
4. The trial court did not err in refusing to reduce the jury‘s award of economic damages by the difference between the amounts paid by the plaintiff‘s health insurers and the amounts they asserted in their liens against the judgment. The difference did not constitute a collateral source benefit under
5. The trial court did not abuse its discretion in granting the plaintiff‘s request for supplemental mediation sanctions for attorney fees incurred during posttrial proceedings. The trial court‘s determination that $150 an hour was an appropriate rate was not unreasonable on its face, given the duration of the posttrial proceedings and the fact that the plaintiff‘s counsel was an experienced trial attorney. The trial court‘s decision to award 77.3 hours was not excessive when considering the number of posttrial motions requiring extensive briefing and hearings, and the fact that the plaintiff originally sought more than 135 hours. Although the hourly rate was much lower than the rate sought by the plaintiff, it was not so low as to be completely outside the range of hourly rates typically charged by attorneys with the level of experience of plaintiff‘s counsel.
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7.
8.
Affirmed.
FITZGERALD, J., dissenting, stated that
NEGLIGENCE — MEDICAL MALPRACTICE — NONECONOMIC DAMAGES — RIGHT TO JURY TRIAL — EQUAL PROTECTION — SEPARATION OF POWERS.
Statutory limitations on the amount of noneconomic damages recoverable by medical malpractice plaintiffs do not violate constitutional rights to a jury trial and equal protection, nor do they intrude on the Michigan Supreme Court‘s constitutional authority to make rules regarding procedure so as to violate the separation of powers doctrine (
Granzotto & Nicita, P.C. (by Mark Granzotto), and Weiner and Cox, P.L.C. (by Melissa B. Gross), for the plaintiff.
Before: FITZGERALD, P.J., and BANDSTRA and GAGE, JJ.
BANDSTRA, J. Defendants appeal as of right from a judgment for plaintiff in this medical malpractice case. Plaintiff cross appeals the trial court‘s decision to reduce the damages awarded by the jury pursuant to
I. BASIC FACTS AND PROCEEDINGS BELOW
In April 1995, Dr. Donald Meyer referred plaintiff to defendant John M. Murphy, M.D., for treatment of a cancerous thyroid tumor. Dr. Murphy, who was the chief of surgery at defendant William Beaumont Hospital, performed the surgery at a Beaumont facility on June 12, 1995. Another physician, Dr. Bruce MacIntosh, and a physician‘s assistant, Frank Mercandonte, assisted Dr. Murphy in performing the surgery. According to Dr. Murphy, plaintiff‘s thyroid was “cement-like” and adherent to other structures because of past radioactive iodine treatment, which made the surgery more difficult. In addition, Dr. Murphy concluded that plaintiff‘s recurrent laryngeal nerve needed to be removed because it was encased by the tumor.
The day after the surgery, Dr. Murphy noted that plaintiff had an elevated temperature and drainage from the incision, and he ordered an esophagoscopy, which revealed a perforation in plaintiff‘s esophagus. Plaintiff was taken directly to surgery and a thoracic surgeon, Dr. Robert Welsch, repaired the perforation.
Following the surgery at Beaumont, plaintiff had difficulty breathing, swallowing, and eating. In July 1995, plaintiff was admitted to another hospital because she was suffering from aspiration pneumonia. According to plaintiff, no one informed her or her family that her recurrent laryngeal nerve was removed during the operation. Dr. Murphy completed a handwritten operative note following the surgery, but did not dictate his operative report until June 21, 1995, the day after plaintiff was discharged from Beaumont. The operative report stated that the recurrent laryngeal nerve was removed; however, the handwritten note contained no reference to the nerve removal, and the pathology report showed no indication that the nerve was involved in the tumor. In her complaint filed in March 1997, plaintiff alleged that Dr. Murphy and Beaumont or its “agents, servants and/or employees, either real or ostensible” were negligent.
In May 1998, Beaumont moved for partial summary disposition, arguing that it could not be liable for any alleged negligence of Dr. Murphy because he was not an agent of Beaumont. Beaumont claimed that plaintiff‘s treating physician referred her to Dr. Murphy, there was a preexisting relationship between Dr. Murphy and plaintiff before the June 1995 surgery, and it did not take any action that would lead plaintiff to reasonably believe that Dr. Murphy was acting on its behalf. The trial court noted that plaintiff asserted that she relied on Beaumont for treatment because of the recommendation of her brother. The court further noted that plaintiff‘s injuries might have occurred
Before trial began in this case, plaintiff submitted proposed jury instructions that included a request for SJI2d 30.05, which is the standard jury instruction regarding res ipsa loquitur, to which defendants objected.1
At trial, plaintiff presented three theories of negligence: that defendants allowed plaintiff‘s esophagus to be perforated during surgery, that defendants failed to preserve plaintiff‘s recurrent laryngeal nerve, and that Dr. Murphy failed to timely dictate his operative report. Plaintiff‘s and defendants’ experts agreed that an esophageal perforation is a rare complication in a thyroidectomy. Plaintiff‘s expert, Dr. Levey, testified that an esophageal perforation does not happen in the absence of negligence, and defendants did not object to this testimony. Dr. Levey further opined that the perforation was caused either by Dr. Murphy or by one of the other members of the surgical team.
Plaintiff produced evidence demonstrating that Dr. Murphy‘s claim that the nerve was encased by cancer was noted on the operative report, but was not included on the handwritten operative note, on the pathology report, or on the discharge summary. Regarding the delay in dictation of the operative report, Dr. Levey testified that the delay violated the standard of care because the “Joint Commission of Hospitals Association”2 requires operative reports to be completed within twenty-four hours after surgery. Dr. Levey further opined that an operative report dictated nine days after surgery is not likely to be accurate, and suggests “lackadaisicalness” and “sloppiness.” When asked whether the delay in compiling the report resulted in any harm to plaintiff, Dr. Levey admitted that plaintiff was not directly harmed by the delay.
At the conclusion of her proofs, plaintiff moved to amend the pleadings to add a claim of res ipsa loquitur. Plaintiff argued that, under MCR 2.118(C)(1), issues tried by express or implied consent of the parties are treated as if they had been raised by the pleadings and amendment should be allowed to conform to the evidence. Plaintiff noted Dr. Levey‘s testi-
Defendants moved for a directed verdict on plaintiff‘s theory of negligence regarding the delayed dictation of the operative report, arguing that the delay did not violate the standard of practice and did not harm plaintiff. Plaintiff argued, and the court agreed, that defendants failed to object to Dr. Levey‘s testimony or move to have it stricken. The court also noted that defense counsel did not question Dr. Levey regarding his foundation for testifying that a delay in dictating a report was a violation of the standard of care. Defendants argued that, as a matter of law, failure to timely dictate a report is a charting issue and does not constitute malpractice. Defendants further argued that even if it were a violation of the standard of practice, plaintiff failed to show how she was harmed by the delay. Plaintiff countered that the delay indirectly harmed her “by the fact that it‘s information that‘s being utilized really to her detriment in terms of these proceedings,” that the delay in dictation “implies as to how the conduct was during the surgery,” and that
The court denied defendants’ motion, stating:
[I]t may not be a fair focus on the standard of care, which encompasses everything that went into this, not just an operative report, but everything. Frankly, the — the Court would maybe entertain a motion to strike that testimony if ... you show me a case that says that what a doctor does or does not do within the operative report ... is not included in the standard of care. But so far the testimony is in, you were allowed cross-examination on it, there‘s been no motion to object — or to strike the testimony. ... But if you provide me with a case that says that that is not a part of the standard of care, that is ... the completing of an operative report, I‘ll be happy to entertain out of — out of fairness, ... anything further [in that regard]. But at this juncture, I‘m denying your request for directed verdict on that basis.
After both parties rested and gave their closing arguments, the court gave jury instructions that included the following:
For the purpose of this case, ladies and gentlemen, Dr. Murphy, Dr. McIntosh, Frank Mercandonte, are to all be considered as agents of William Beaumont Hospital. As such, if you find that Dr. Murphy or Dr. McIntosh or Frank Mercandonte were professionally negligent, then William Beaumont Hospital shall be held liable for their negligence.
There is no indication in the record that defendants objected to this or any other instruction. It appears that the parties also agreed to a very basic and general jury verdict form that required the jury to determine (1) whether the defendants were negligent, (2) whether plaintiff sustained damages, (3) whether plaintiff‘s damages were proximately caused by
Following deliberations, the jury returned a verdict for plaintiff, finding that defendants were negligent and that plaintiff was damaged as a result of defendants’ negligence. The judgment awarded plaintiff $174,686 in past economic damages and $200,000 in past noneconomic damages. The judgment also awarded $256,678 in future economic damages and $256,678 in future noneconomic damages, both amounts having been reduced to present cash value. The judgment awarded plaintiff noneconomic damages in a total amount reduced from the jury‘s verdict, pursuant to
The parties filed numerous posttrial motions. Plaintiff filed a motion seeking mediation sanctions under MCR 2.403(O), which the court granted in part, awarding plaintiff $86,583 in attorney fees based on 577.22 hours at a rate of $150 an hour. Plaintiff also asked the court to hold that
Defendants filed motions to “Reduce the Verdict in Accordance with
II. DEFENDANTS’ APPEAL
A. AMENDING THE COMPLAINT
Defendants first argue that the trial court abused its discretion by granting plaintiff‘s request to amend her complaint during trial to add a claim of res ipsa loquitur. Defendants claim that the trial court erred by applying MCR 2.118(C)(1) because defendants did not consent to litigate plaintiff‘s claim of res ipsa loquitur, and that the correct standard governing plaintiff‘s request was MCR 2.118(C)(2), which required plaintiff to establish that defendants would not be prejudiced by the amendment and that no such showing was made.
MCR 2.118(C), which governs the amendment of complaints at trial, states:
Amendments to Conform to the Evidence.
(1) When issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated as if they had been raised by the pleadings. In that case, amendment of the pleadings to conform to the evidence and to raise those issues may be made on motion of a party at any time, even after judgment.
(2) If evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings, amendment to conform to that proof shall not be allowed unless the party seeking to amend satisfies the court that the amendment and the admission of the evidence would not prejudice the objecting party in maintaining his or her action or defense on the merits. The court may grant an
adjournment to enable the objecting party to meet the evidence.
Defendants argue that subsection C(2) is the applicable standard to apply in this case because they objected to plaintiff‘s amendment. However, this argument is belied by the clear language of the rule. MCR 2.118(C)(2) applies only where a party objects to admission of evidence. Although defendants are correct that they objected to the amendment, defendants did not object to the admission of evidence regarding res ipsa loquitur and subsection C(2) is inapplicable. The trial court correctly reasoned that subsection C(1) is the correct standard here because defendants’ failure to object to the admission of res ipsa loquitur evidence implied their consent to litigate the issue. See Grebner v Clinton Charter Twp, 216 Mich App 736, 744; 550 NW2d 265 (1996).
Because MCR 2.118(C)(1) was the correct standard, defendants’ argument that plaintiff was required to show lack of prejudice to defendants must fail. That requirement of subsection C(2) is not included in subsection C(1). To the contrary, subsection C(1) is liberal and permissive, treating issues tried by consent of the parties “as if they had been raised by the pleadings.” The only requirement is that the party seeking amendment move to have the court amend the pleadings, and plaintiff here properly moved for an amendment. The trial court did not abuse its discretion in deciding to allow plaintiff to amend her complaint to conform to the evidence on her theory of res ipsa loquitur.
Defendants also argue that plaintiff failed to prove all the elements of res ipsa loquitur and a new trial should be granted on this basis. However, there is no
B. MOTION FOR A DIRECTED VERDICT
Defendants next argue that the trial court erred in denying their motion for a directed verdict on plaintiff‘s claim that Dr. Murphy was negligent for failing to timely dictate his operative report. Defendants claim that the internal policies of defendant Beaumont and the rules of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) cannot be used to establish the standard of care for a physician. Defendants are correct in their assertion that internal policies of an institution, including a hospital, cannot be used to establish a legal duty in a negligence claim. See Buczkowski v McKay, 441 Mich 96, 99, n 1; 490 NW2d 330 (1992); Gallagher v Detroit-Macomb Hosp Ass‘n, 171 Mich App 761, 764-765; 431 NW2d 90 (1988). However, we have distinguished between internal policies and external rules promulgated pursuant to law. Id. at 765; Kaktigian v Henry Ford Hosp, 48 Mich App 325, 332; 210 NW2d 463 (1973). In this case, plaintiff alleged not only a violation of internal policy, but also a violation of JCAHO rules. Defendants have not cited any authority hold-
Defendants also argue that a directed verdict on the issue of negligent charting was appropriate because plaintiff failed to show how she was harmed by the delay in dictating the operative report. In order to prove negligence, plaintiff must show not only a duty and a breach of that duty, but that her injuries were caused by the breach. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). In order to prove causation, plaintiff must show both cause in fact and proximate cause. Haliw v Sterling Hts, 464 Mich 297, 310; 627 NW2d 581 (2001). Cause in fact requires plaintiff to show that her injuries would not have occurred but for defendants’ negligent conduct. Id.
In this case, plaintiff‘s claimed injuries included (1) severance of her recurrent laryngeal nerve, (2) a prolonged recovery, (3) an additional hospitalization for pneumonia, (4) permanent difficulties in breathing, swallowing, and aspiration, (5) out-of-pocket expenses for medical care related to her physical injuries, and (6) pain and emotional distress. At trial, neither plaintiff nor her expert testified how the delay in dictation harmed her and, in fact, her expert admitted that she was not directly harmed.
On appeal, plaintiff argues that she was harmed because the operative report was the only document that noted that her recurrent laryngeal nerve was severed, and because the operative report was not timely dictated, neither she nor her subsequent medical care
Although the trial court erred in denying the motion for a directed verdict, reversal is required only if allowing the verdict to stand would be inconsistent with substantial justice. MCR 2.613(A).
In this case, the jury returned a general verdict finding that defendants were negligent and that plaintiff‘s injuries were caused by this negligence. There were no specific findings by the jury regarding how defendants were negligent or how the negligence caused plaintiff‘s injuries. However, there was sufficient evidence from which the jury could reasonably conclude that defendants were negligent on the basis of plaintiff‘s alternate theories regarding the severed recurrent laryngeal nerve or the perforated esophagus. Moreover, it is clear from the fact that the jury awarded substantial future damages that the jury found for plaintiff on one or both of those theories, the delayed reporting error clearly having no long-
C. OSTENSIBLE AGENCY
In their next assertion of error, defendants argue that the trial court should have granted defendant Beaumont‘s motion for summary disposition because Dr. Murphy was not an ostensible agent of the hospital and Beaumont could not have been vicariously liable for Dr. Murphy‘s negligence. Although the trial court did not state whether it decided the motion under MCR 2.116(C)(8) or (10), the court considered documentary evidence outside the pleadings. Therefore, we will analyze the motion under MCR 2.116(C)(10).
A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim. Spiek v Dep‘t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When deciding the motion, the court considers pleadings, affidavits, depositions, admissions, and other evidence submitted in
We agree with defendants that the evidence of ostensible agency between Dr. Murphy and Beaumont was tenuous at best. In order to prove that Dr. Murphy was the ostensible agent of Beaumont, plaintiff must show that (1) she dealt with Dr. Murphy with a reasonable belief in the physician‘s authority as an agent of Beaumont, (2) her belief was generated by some act or neglect on the part of the hospital, and (3) she was not guilty of negligence. Chapa v St Mary‘s Hosp of Saginaw, 192 Mich App 29, 33-34; 480 NW2d 590 (1991). Further, an independent relationship between a doctor and a patient that preceded a patient‘s admission to a hospital precludes a finding of ostensible agency, unless the acts or omissions of the hospital override the impressions created by the preexisting relationship and create a reasonable belief that the doctor is an agent of the hospital. Hinkleman v Borgess Medical Ctr, 157 Mich App 314, 323; 403 NW2d 547 (1987); Strach v St John Hosp Corp, 160 Mich App 251, 263; 408 NW2d 441 (1987).
Here, it is undisputed that there was a preexisting relationship between plaintiff and Dr. Murphy before she underwent the surgery at Beaumont. Although plaintiff testified that she chose Beaumont because of
However, there was evidence supporting an agency relationship between Dr. McIntosh and Mr. Mercandonte and Beaumont. Defendants presented no evidence of a preexisting relationship between plaintiff and Dr. McIntosh or Mr. Mercandonte, and plaintiff testified that she did not even know of the existence of these two medical professionals until after the surgery. Further, neither plaintiff‘s nor defendants’ experts could determine with any degree of certainty whether the injury to plaintiff‘s esophagus was caused by the actions or inactions of Dr. Murphy, Dr. McIntosh, or Mr. Mercandonte. Plaintiff‘s expert testified that, although Dr. Murphy was ultimately responsible for what occurred during the surgery, any one of the three individuals participating in the surgery could have caused the esophageal laceration. Because there were genuine issues of material fact regarding whether Dr. McIntosh and Mr. Mercandonte were ostensible agents of Beaumont and whether one of them caused plaintiff‘s injury, the trial court did not
Further, even if the trial court erred in denying the motion for summary disposition, the error was rendered harmless when defendants failed to object to a jury instruction that specifically informed the jury that Dr. Murphy, Dr. McIntosh, and Mr. Mercandonte were agents of Beaumont. An error in a ruling or order is not a ground for setting aside a verdict or disturbing a judgment unless failure to do so would be inconsistent with substantial justice. MCR 2.613(A). By allowing the jury to be instructed regarding the agency of Dr. Murphy, defendants effectively waived their claim of error arising from the trial court‘s denial of defendant Beaumont‘s motion for summary disposition.
D. COLLATERAL SOURCE
Defendants next claim that the trial court erred in refusing to reduce the amount of economic damages awarded to plaintiff in the verdict by the amount of medical expenses paid by plaintiff‘s health insurers. Defendants argue that plaintiff‘s insurers paid more than $88,000 of her medical expenses, yet they claimed less than $30,000 in their liens against plaintiff‘s judgment. According to defendants, the difference between the amounts paid by plaintiff‘s insurers and the amounts asserted by the insurers in their liens constitutes a collateral source benefit under
(1) In a personal injury action in which the plaintiff seeks to recover for the expense of medical care, rehabilitation services, loss of earnings, loss of earning capacity, or other economic loss, evidence to establish that the expense or loss was paid or is payable, in whole or in part, by a collateral source shall be admissible to the court in which the action was brought after a verdict for the plaintiff and before a judgment is entered on the verdict. Subject to subsection (5), if the court determines that all or part of the plaintiff‘s expense or loss has been paid or is payable by a collateral source, the court shall reduce that portion of the judgment which represents damages paid or payable by a collateral source by an amount equal to the sum determined pursuant to subsection (2). This reduction shall not exceed the amount of the judgment for economic loss or that portion of the verdict which represents damages paid or payable by a collateral source.
(2) The court shall determine the amount of the plaintiff‘s expense or loss which has been paid or is payable by a collateral source. ...
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(4) As used in this section, “collateral source” means benefits received or receivable from an insurance policy; benefits payable pursuant to a contract with a health care corporation, dental care corporation, or health maintenance organization; employee benefits; social security benefits; worker‘s compensation benefits; or medicare benefits. ... Collateral source does not include benefits paid or payable by a person, partnership, association, corporation, or other legal entity entitled by contract to a lien against the proceeds of a recovery by a plaintiff in a civil action for damages, if the contractual lien has been exercised pursuant to subsection (3).5 [Emphasis added.]
E. MEDIATION SANCTIONS
In their final assertion of error, defendants argue that the trial court should have denied plaintiff‘s request for supplemental mediation sanctions for attorney fees incurred during posttrial proceedings. Defendants’ sole argument is that the requested fees were unreasonable and excessive. According to defendants, the issues in the posttrial motions were not novel or difficult, or they involved arguments the court had addressed before the trial. Defendants do not challenge the court‘s initial decision to award mediation sanctions, or whether the trial court had the discretion to award attorney fees incurred in posttrial proceedings.
Where the trial court determines that sanctions are appropriate, the actual costs to be charged are the costs taxable in any civil action plus a reasonable attorney fee.
In determining a reasonable hourly rate, the trial court should consider relevant criteria, including “the professional standing and experience of the attorney; the skill, time and labor involved; the amount in question and the results achieved; the difficulty of the case; the expenses incurred; and the nature and length of the professional relationship with the client.” Temple v Kelel Distributing Co, Inc, 183 Mich App 326, 333; 454 NW2d 610 (1990). Reasonable fees are not equivalent to actual fees charged. Cleary v Turning Point, 203 Mich App 208, 212; 512 NW2d 9 (1993). Taxable costs can include fees incurred posttrial. Joerger v Gordon Food Service, Inc, 224 Mich App 167, 178-179; 568 NW2d 365 (1997).
In this case, the trial court properly exercised its discretion in determining that plaintiff was entitled to 77.3 hours of attorney fees at $150 an hour. The trial court‘s determination that $150 an hour was an appropriate rate was not unreasonable on its face, given the duration of the posttrial proceedings and the fact that plaintiff‘s counsel was an experienced trial attorney. Further, the court‘s decision to award 77.3 hours was not excessive when considering the number of posttrial motions requiring extensive briefing and hearings, and the fact that plaintiff originally sought more than 135 hours. The trial court‘s decision was neither grossly violative of fact and logic nor did it show a perversity of will, a defiance of judgment, or the exercise of passion or bias. Elia v Hazen, 242 Mich App 374, 377; 619 NW2d 1 (2000); Michigan Basic Property Ins Ass‘n v Hackert Furniture Distributing Co, Inc, 194 Mich App 230, 235; 486 NW2d 68 (1992).
III. PLAINTIFF‘S CROSS-APPEAL
A. HOURLY RATE
In a related issue, plaintiff argues on cross-appeal that the trial court abused its discretion by deciding to reduce the hourly rate for the attorney fees she was awarded pursuant to
The determination of a reasonable hourly rate for attorney fees to be awarded the prevailing party as a mediation sanction is within the trial court‘s discretion, Hackert, supra at 236, and we find no abuse of discretion in this case. Although the hourly rate was much lower than the rate sought by plaintiff, it was not so low as to be completely outside the range of hourly rates typically charged by attorneys with the level of experience of plaintiff‘s counsel. Further, it is clear that the trial court properly considered the fac
B. CONSTITUTIONALITY OF MCL 600.1483
Plaintiff also raises several issues pertaining to the constitutionality of
1. TRIAL BY JURY
Plaintiff first claims that the limitation on noneconomic damages in
The Michigan Constitution guarantees plaintiffs in civil suits the right to trial by jury.
Although our Court has not addressed whether
The reasoning in Phillips is equally applicable to the facts of this case and the requirements of
Rather, plaintiff appears to argue that
In sum, we hold that the noneconomic damages limitation of
2. EQUAL PROTECTION12
Plaintiff also argues that the provisions of
Both the United States and Michigan Constitutions guarantee equal protection of the law.
Plaintiff‘s argument that strict scrutiny should be applied to this statute is without merit. As was recently noted in Phillips, supra, the classification schemes created by various tort reform legislation are social or economic legislation subject to the rational basis test. Id. at 596-597; see also Heinz, supra at 300; Stevenson v Reese, 239 Mich App 513, 517; 609 NW2d 195 (2000). In addition, we reject plaintiff‘s argument that distinguishing between medical malpractice plaintiffs and other personal injury plaintiffs creates a suspect classification. In Stevenson, we rejected a similar argument that distinguishing between insured and uninsured motorists under Michigan‘s no-fault act created a suspect classification. Id. at 518. A class of personal injury plaintiffs cannot be compared to classes based on race, gender, or mental incapacity. Id.13 Therefore, the appropriate standard for analyzing plaintiff‘s equal protection claim is the rational basis test.
Under the rational basis test, legislation is presumed to be constitutional and will survive review if the classification scheme is rationally related to a legitimate governmental purpose. Phillips, supra; Vargo, supra. The burden of proof is on the person attacking the legislation to show that the classification is arbitrary. Yaldo v North Pointe Ins Co, 457 Mich 341, 349; 578 NW2d 274 (1998). “‘Rational-basis review does not test the wisdom, need or appropriateness of the legislation,‘” and the challenged statute is not invalid for lack of mathematical precision in its classification or because it results in some inequity. Phillips, supra at 597, quoting Crego, supra at 260.
The statute at issue here is rationally related to a legitimate governmental purpose. The 1993 legislation that created the current finite limitation scheme was prompted by the Legislature‘s concern over the effect of medical liability on the availability and affordability of health care in the state. See House Legislative Analysis, SB 270 and HB 4033, 4403, and 4404, April 20, 1993, pp 1-2. The purpose of the damages limitation was to control increases in health care costs by reducing the liability of medical care providers, thereby reducing malpractice insurance premiums, a large component of health care costs.
3. SEPARATION OF POWERS
In her final argument, plaintiff claims that
The separation of powers doctrine of the Michigan Constitution is derived from a provision in article 3 stating that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”
Because the Legislature may change the substantive law without infringing the Supreme Court‘s rulemaking authority,
In this case, it is apparent that the statutes in question reflect legislative policy considerations other than court practice and procedure. As stated above, these statutes are intended to address perceived crises in the health care system. The purpose of the statutes is to control health care costs by reducing medical malpractice liability. Because the statutes are substantive in nature, rather than procedural, they do not infringe the Supreme Court‘s rulemaking authority.
We affirm.
GAGE, J., concurred.
FITZGERALD, P.J. (dissenting.) I respectfully dissent because I believe the damages cap in
In Phillips v Mirac, Inc, 251 Mich App 586, 591-594; 651 NW2d 437 (2002), a panel of this Court analyzed
In his dissenting opinion in Phillips, Judge METER found the damages cap in
The fatal flaw with this argument is that the existence of a particular cause of action, at least in many instances, is not mandated by the constitution. Many causes of action are creatures of the Legislature, and therefore the Legislature is free to abolish these causes of action. The right to a jury trial, on the other hand, is indeed mandated by the constitution, as discussed earlier. Accordingly, the Legislatureis not free to abrogate this right. In other words, while the Legislature may take away what it has given, it may not take away what the constitution has given. [Id. at 600 (emphasis in original).]2
In addressing the Phillips majority‘s statement that “the damages cap . . . in no way removes from the jury the determination of facts and of the amount of damages that the injured plaintiff incurred,” Judge METER opined:
Once again, this logic is fatally flawed. Indeed, in a case such as the instant one, having the jury “determin[e] [the] facts and . . . the amount of damages that the injured plaintiff incurred” but then arbitrarily reducing this amount to a prescribed statutory number renders the jury‘s function purely illusory. [Id. at 601.]
In distinguishing the doctrine of remittitur, Judge METER explained that
this type of diminution, unlike one that occurs as a result of a statutory damages cap, does not render the jury‘s role illusory. Indeed, in cases of remittitur, a court may lower the jury‘s determination of damages as a matter of law only after determining that the award is unsupported by the evidence introduced at trial. See Szymanski v Brown, 221 Mich App 423, 431; 562 NW2d 212 (1997). By contrast, a statutory damages cap mandates a reduction solely because of legislative fiat, notwithstanding that a much greater amount of damages may be supported by the evidenceintroduced at trial. [Phillips, supra at 602 (emphasis in original).]
Thus, Judge METER concluded that
the statute at issue required the trial court to arbitrarily reduce the amount of damages awarded by the jury without any determination regarding whether the award was supported by the evidence at trial. The necessary component of judicial discretion was eviscerated, and the constitutional right to trial by jury was violated. [Id. at 603.]
I agree with Judge METER‘S reasoning and find that it applies equally to the statutory provision at issue in this case. For the reasons stated by Judge METER in his dissent in Phillips, I would hold that the damages cap in
Notes
If you find that the defendant had control over the [body of the plaintiff/instrumentality which caused the plaintiff‘s injury], and that the plaintiff‘s injury is of a kind which does not ordinarily occur without someone‘s negligence, then you may infer that the defendant was negligent.
However, you should weigh all of the evidence in this case in determining whether the defendant was negligent and whether that negligence was a proximate cause of plaintiff‘s injury. [Emphasis in original.]
(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.
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(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.
. . .
It is undisputed in this case that none of the exceptions of subsections 1(a)-(c) apply to plaintiff and that the pertinent limitation in this case, as adjusted according to subsection 4, was $320,600.
[u]nless the lessor, or his or her agent, was negligent in the leasing of the motor vehicle, the lessor‘s liability under this subsection is limited to $20,000.00 because of bodily injury to or death of 1 person in any 1 accident and $40,000.00 because of bodily injury to or death of 2 or more persons in any 1 accident.
In an action alleging medical malpractice, the court shall reduce an award of damages in excess of 1 of the limitations set forth in section 1483 to the amount of the appropriate limitation set forth in section 1483. The jury shall not be advised by the court or by counsel for either party of the limitations set forth in section 1483 or any other provision of section 6304.