Johnnie F Shinholster v. Annapolis Hosp ( 2004 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 30, 2004
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123720
ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,
Defendant-Appellant,
and
DENNIS ADAMS, M.D. AND MARY ELLAN
FLAHERTY, M.D.,
Defendants.
_____________________________________
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123721
KATHERINE ADAMS, Personal Representative
Of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,
Defendants-Appellants,
and
ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,
Defendant.
_____________________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
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 plaintiff’s 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 damages cap of § 1483; and (3) whether, and to
what extent, MCL 600.6311 applies in a wrongful death
action. Regarding the first issue, the Court of Appeals
affirmed the trial court’s decision that MCL 600.6304(1)
did not permit the trier of fact to offset defendants’
fault on the basis of plaintiff’s alleged pre-treatment
2
negligence.1 On the basis of the clear and unambiguous
language of § 6304(1), we hold that a trier of fact is
permitted in “personal injury, property damage, [and]
wrongful death” tort actions, which necessarily include
medical malpractice actions, to consider a plaintiff’s pre-
treatment negligence in offsetting a defendant’s fault
where reasonable minds could differ with regard to whether
such negligence constituted “a proximate cause”—a
foreseeable, natural and probable consequence—of the
plaintiff's injury and damages. Further, on basis of the
evidence presented, we believe that reasonable minds could
find that plaintiff’s pre-treatment negligence in this
case—her failing to regularly take her prescribed blood
pressure medication during the year preceding her fatal
stroke—constituted a foreseeable, natural, and probable
consequence of her fatal stroke, and thus we remand this
case to the trial court for proceedings consistent with the
opinions of this Court.
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
1
255 Mich App 339, 352-354; 660 NW2d 361 (2003).
3
in Jenkins v Patel, 471 Mich ___, ___; ___ NW2d ___ (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 medical malpractice noneconomic damages cap of §
1483 applies where the injured person, at any time before
his death and as a result of a defendant’s negligent
conduct, fits within the ambit of MCL 600.1483(1)(a), (b),
or (c).
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
plaintiff’s 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. Shinholster, 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.
4
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)2 examined plaintiff on
April 7 and April 10, and defendant Dr. Mary Ellen Flaherty
(Flaherty) examined Shinholster on April 14. Shinholster’s
fourth visit on April 16 was precipitated by a massive
stroke, after which she entered a coma for several months
and died at the age of sixty-one. On behalf of his
deceased wife, Johnnie Shinholster filed suit against
Adams, Flaherty, and Annapolis Hospital, alleging that they
had negligently treated his wife on April 10 and April 14
by failing to recognize that she had been experiencing
transient ischemic attacks, or “mini-strokes” that often
precede a full-blown, serious stroke.
The jury found in plaintiff’s 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
2
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.
5
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
Legislature. Murphy v Michigan Bell Tel Co, 447 Mich 93,
98; 523 NW2d 310 (1994). “The words of a statute provide
6
‘the most reliable evidence of [the Legislature’s] intent .
. . .’” Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596
NW2d 119 (1999), quoting United States v Turkette, 452 US
576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). In
discerning legislative intent, a court must “give effect to
every word, phrase, and clause in a statute . . . .” State
Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142,
146; 644 NW2d 715 (2002). The Court must consider “both
the plain meaning of the critical word or phrase as well as
‘its placement and purpose in the statutory scheme.’” Sun
Valley, supra at 237, quoting Bailey v United States, 516
US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995). “The
statutory language must be read and understood in its
grammatical context, unless it is clear that something
different was intended.” Sun Valley, supra at 237. “If
the language of a statute is unambiguous, the Legislature
must have intended the meaning clearly expressed, and the
statute must be enforced as written.” Id. at 236.
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
7
plaintiff’s 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:
(a) The total amount of each plaintiff’s
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 (1)(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(1), 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
8
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]
On the basis of this statute, defendants contend that
the trial court erred in not allowing the jury to consider
Shinholster’s behavior as manifesting comparative
negligence when she failed to regularly take her prescribed
blood pressure medication for at least a year before her
first visit to the emergency room.
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(1)(b) is unambiguous and calls for the
trier of fact to assess by percentage “the total fault of
3
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 . . . .
9
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 plaintiff’s
injury and subsequent damage.4
With regard to what cause constitutes proximate cause,5
in Parks v Starks, 342 Mich 443, 448; 70 NW2d 805 (1955),
we quoted with approval the following from 38 Am Jur,
Negligence, § 55, p 703:
“The proximate cause of an injury is not
necessarily the immediate cause; not necessarily
the cause nearest in time, 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
plaintiff’s negligence constituted a proximate cause of her
4
Moreover, MCL 600.6304(6) expressly acknowledges that
a plaintiff may be determined “to have fault” in “a medical
malpractice claim . . . .”
5
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 plaintiff’s injury, and second,
that the plaintiff’s injury must have been a
natural and probable result of the negligent
conduct.
10
injury and subsequent damage,6 the trier of fact must be
allowed to consider such evidence in apportioning fault.7
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.8
6
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 “plaintiff’s injury”
rather than “plaintiff’s damage.” Post at 3-4. 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 plaintiff’s damages. Thus, we believe we
are correct when we state at pp 10-11 that § 6304 applies
where plaintiff’s pre-treatment negligence constituted a
proximate cause of her “injury and subsequent damage.”
7
In her opinion, Justice WEAVER criticizes the majority
because it “does not offer any analysis regarding why it is
appropriate to consider plaintiff’s pretreatment negligence
as a proximate cause of her death, but simply states that
it may be considered.” Post at 4. However, on pp 9-10, 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.
8
In her opinion, Justice WEAVER asserts that “all the
other state courts that have considered the question
whether a patient’s own pre-treatment negligence could be
considered a proximate cause of the patient’s damages for
purposes of comparative negligence have ultimately decided
that it should not.” Post at 4. We simply note the
(continued . . . .)
11
Moreover, the Court of Appeals reliance on inferences
drawn from Podvin (the plaintiff’s negligence in causing a
car accident could not be cited as contributory negligence
for subsequent medical malpractice in treating car accident
injuries) is misplaced. This case is not relevant because
it was decided at a time when any contributory negligence
barred a plaintiff’s lawsuit. If it was ever relevant, it
stopped being so when this Court adopted pure comparative
negligence. Placek v Sterling Hts, 405 Mich 638, 701; 275
NW2d 511 (1979). Moreover, to the extent that the
inferences drawn from Podvin are inconsistent with MCL
600.6304, the statute must prevail.
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
(continued . . . .)
obvious, to wit, no other state was interpreting the
specific language of Michigan law, MCL 600.6304. 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
plaintiff's medical malpractice damages in accord with the
plaintiff's own negligence that "substantially contributed
to initially cause" the reason for which the plaintiff
sought medical treatment).
12
done more than that. Her failure to properly take her
medications may in fact have constituted a proximate cause
of her death.9
2. Limited Remand
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,10 it may well have supported the same
9
It is possible to hypothesize situations where a
plaintiff’s pre-treatment 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. But, if the surgeon merely set the broken leg
negligently, such an injury would constitute a natural and
foreseeable result of the plaintiff’s original negligence.
10
One of defendants’ experts, Dr. Bradford Walters,
testified as follows:
(continued . . . .)
13
(continued . . . .)
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.
(continued . . . .)
14
conclusion for a greater period. Accordingly, the trial
court clearly erred in precluding evidence made admissible
by § 6304, and this prevented defendants from receiving a
fair trial with regard to the apportionment of damages.
MCR 2.611(A)(1)(a). Because the jury in this case has
already determined that defendants breached their standard
of care, a determination that I note defendants have never
appealed,11 I would reverse the judgment of the Court of
(continued . . . .)
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
be alive?
A. I think there was a good chance that
she may have been.
11
While a remand for a determination of damages only
is generally disfavored by this Court, see Garrigan v
(continued . . . .)
15
Appeals and remand this case for calculation of damages
only, ordering that the jury be permitted to consider
Shinholster’s pre-treatment negligence in apportioning
fault concerning plaintiff’s damages.
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
8, 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
(continued . . . .)
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 plaintiff’s 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
plaintiff’s 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.
16
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 defendant’s breach—which evidence
was later held to be inadmissible—a remand for an entirely
new trial might well be required, because such evidence
would, in fact, implicate whether defendant had breached a
duty, and, therefore, whether plaintiff had satisfied the
prima facie elements of a tort action.
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
17
essential to a plaintiff’s prima facie case,” is incorrect.
Post at 8.
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 plaintiff’s injury.12 That is, we
12
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 7 n
2, I note that in the quoted portion of defendants’ brief,
defendants only contend that, had plaintiff’s pre-treatment
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 plaintiff’s
pre-treatment negligence been considered by the jury, it
would have determined that they were not a proximate cause
of plaintiff’s injury, but they contend only that, had the
jury been able to consider such negligence, the extent of
their own liability would have been reduced.
Further, I find the citations of MCL 600.2959 and M
Civ JI 11.01 unpersuasive in support of such position.
Post at 9-10. 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 plaintiff’s comparative fault, post at 11, such
evidence generally does not affect whether a defendant was
liable at all for a plaintiff’s 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
(continued . . . .)
18
are not considering whether plaintiff satisfied her initial
burden of proof relating to whether defendants were a
proximate cause of her injury and, thus, are liable.13
Certainly, defendants could have argued that, had the
jury been permitted to consider plaintiff’s 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 plaintiff’s injury.
However, defendants did not make such an argument.
Instead, they argued only that evidence of plaintiff’s own
negligence should be considered by the jury in order to
determine the extent to which defendants were liable for
plaintiff’s injury. (Defendants alleged: “Had the jury
been properly instructed [concerning plaintiff’s pre-
(continued . . . .)
an entirely new trial. Because defendants themselves,
unlike the concurrence/dissent, have never argued that,
“had the jury been permitted to consider plaintiff’s pre-
treatment negligence, it would not have found that
defendants breached their standard of care or that
defendants’ breach was a proximate cause of plaintiff’s
injury,” I continue to believe that a remand for damages
only is warranted under the circumstances of this case.
13
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 be offered
to the trial court.
19
treatment negligence], it is likely that the percentage of
her comparative fault would have been determined at a much
higher level”).14
14
I am concerned that, if this Court were to accept
Chief Justice CORRIGAN’S assertion that this case be 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 plaintiff’s 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
plaintiff’s injury and subsequent damages. The trial judge
has allowed the defendant to present evidence regarding the
plaintiff’s 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 liable.
However, the defendant wanted evidence admitted at trial of
one additional, albeit slight, instance of the plaintiff’s
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 liable rather than ten percent and,
thus, the defendant to have been eighty-eight percent
rather than ninety percent liable. If an appellate court
finds that the trial judge erred in ruling the additional
evidence of the plaintiff’s negligence 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 plaintiff’s percentage of
liability should be increased, and the defendant’s
percentage of liability decreased, accordingly. Nothing,
of course, would prohibit an appellate court from remanding
for an entirely new trial in subsequent cases if the facts
require.
20
B. Cap on Noneconomic Damages
For the reasons stated in Jenkins, supra at ___, 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.
MCL 600.1483 contains two caps on noneconomic damages
and 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:
(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(1)(a) and (b),
21
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 15-16. 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 “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 . . . .” Post at 15-16. Because
a trial court reduces damages pursuant to § 6304 only after
the jury has rendered its verdict, defendants and the Chief
Justice conclude that the present tense verbs in the statute
refer to that precise moment in time at which “the trial
court makes its post-verdict determination concerning
whether the cap requires adjustment of the verdict.” Post
at 15.15 While the trial court noted that the Legislature
15
Thus, for example, assume that a jury renders a
$500,000 verdict at 5 PM 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
(continued . . . .)
22
used the present tense words “is . . . hemiplegic,” it also
observed that the Legislature did not specify at which time
plaintiff must have sustained that condition for the higher
cap to apply. The trial court disagreed with defendants’
construction of the statute and ruled:
[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:
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
(continued . . . .)
of § 1483. However, later that evening, the injured party
dies. The next morning at 9 AM, 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.
23
reference for determining whether the injured
person fits within MCL 600.1483(1)(a), (b), or
(c) is any time 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 . . . .” 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
24
reproductive organ,” the higher damages cap tier applies.16
Not only is this understanding of § 1483, and specifically
its use of the present tense of verbs, consistent with this
Court’s decision in Michalski v Bar-Levav, 463 Mich 723,
732-733; 625 NW2d 754 (2001)(construing provisions of the
16
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 14, 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 two-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.
25
Handicappers Civil Rights Act, MCL 37.1101, which are also
written in the present tense, yet holding that the
“present” tense refers to events existing during the
pendency of the plaintiff’s employment, when her cause of
action arose), but it also avoids the arguably incongruous
results about which the trial court and Court of Appeals
were concerned.17
Second, we believe that the text of the wrongful death
act, MCL 600.2922(1), (2), and (6), provides additional
support for our understanding of § 1483. These provisions
state that “the personal representative of the estate of
the deceased person” be able to “maintain an action and
recover damages [against] the person who or the corporation
that would have been liable, if death had not ensued
. . . .” Subsection 2922(6) expressly permits the
deceased’s estate to recover “reasonable compensation for
17
We note that defendants’ and the Chief Justice's
positions, taken to their inevitable conclusions, might
just as well require that, if the injured party is deceased
at the time of judgment, the higher cap tier would always
apply. This is because: (1) a deceased person always “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”; and (2)
if the injured person is deceased, “[t]here has [always]
been permanent loss of or damage to a reproductive organ
resulting in the inability to procreate.”
26
the pain and suffering, while conscious, undergone by the
deceased person during the period intervening between the
time of the injury and death . . . .” Accordingly, while
we agree with the Chief Justice that the Legislature is
free to make “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 [§ 1483],” post at 14-15, we see
no indication in the statute that the Legislature, in fact,
made such a decision; rather, we believe that the
Legislature made a quite contrary policy decision in §
2922(1), (2), and (6) by permitting a decedent’s estate to
recover everything that the decedent would have been able
to recover had she lived.
Third, we believe that the interplay between the
wrongful death act, particularly § 2922(6), and § 1483
provides additional textual support for our understanding
of § 1483. Subsection 2922(6) states that in a wrongful
death action “the court or jury 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.) Section 1483 provides that
27
pain and suffering resulting from certain enumerated
injuries are compensable at a higher rate. Thus, the
Legislature has apparently determined that “reasonable
compensation” for such pain and suffering may sometimes be
in excess of $280,000. However, by concluding that, no
matter what type of injuries resulted in a decedent’s
death, survivors in a wrongful death action may never
recover under § 1483’s higher cap if the decedent is dead
at the time of judgment, defendants and the Chief Justice
effectively preclude the awarding of “reasonable
compensation” under § 2922(6) for the conscious pain and
suffering undergone by at least some decedents before their
death, where such pain and suffering resulted from one of
the enumerated injuries in § 1483. That is, we believe
that defendants and the Chief Justice overlook the express
directive of § 2922(6) that the jury may award “reasonable
compensation” for a decedent’s conscious pain and
suffering—compensation which, in the Legislature’s
estimation, may sometimes be in excess of $280,000 if
conscious pain and suffering results from an injury
enumerated in § 1483.
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
28
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 Legislature
intended that an exception, if it is applicable, apply at
the time [of judgment],” post at 10, we note that the Chief
Justice fails to ensure that her own interpretation of §
1483 is consistent with the Legislature’s use of the verb
tense “has been” in § 1483(1)(c). This use of the past
tense of the verb indicates an intention by the Legislature
that an injured party need not always be alive at the time
of judgment for the higher cap to apply, but rather only
have suffered, at some point in the past as the result of a
defendant’s negligent conduct, the type of injury
enumerated in § 1483(1)(c).
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.
29
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(1)(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 deliberations, or at the
time at which the jury renders its verdict.18 Defendants
18
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
(continued . . . .)
30
and the Chief Justice assert that the Legislature showed an
intent to set the temporal framework at the time of
judgment by stating that the higher tier exception applies
“as determined by the court pursuant to section 6304 . . .
.” However, in our judgment, references in § 1483 to §
6304 serve merely to clarify under which statute the court
is authorized and required to reduce the damages award
consistent with § 1483. We do not read into this reference
a legislative intent to bar a plaintiff, whose decedent has
suffered while still alive and has suffered “as the result
of the negligence of 1 or more of the defendants, 1 or more
of the following [injuries],” from recovering pursuant to
the higher tier merely because the plaintiff’s decedent was
unfortunate enough to die before the post-verdict damages
determination. Rather, on the basis of the statutory
language previously discussed, we believe that the better
interpretation of the statute is that, as long as a
plaintiff suffers, while still living and as a result of a
defendant’s negligent conduct, one of the enumerated
conditions set forth in § 1483, the statute’s higher
damages cap applies.
(continued . . . .)
should be incentivized in the perverse expectation that a
plaintiff may not survive trial and judgment.
31
Because plaintiff in this case presented evidence from
which it could be rationally concluded that, “as the result
of the negligence of 1 or more of the defendants,” it could
have been said at some time before her death that she “is
hemiplegic, paraplegic, or quadriplegic [as a result of]
[i]njury to the brain,” or “has permanently impaired
cognitive capacity,” we agree with the determination made
by the lower courts that the higher damages cap of § 1483
applies under the circumstances of this case.
C. MCL 600.6311
While MCL 600.6306(1)(c), (d), and (e) provide that
all future damages awarded to a plaintiff be reduced to
gross present value,19 MCL 600.6311 creates an exception to
19
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.
(continued . . . .)
32
this general rule by stating, “Sections 6306(1)(c), (d),
and (e) . . . do not apply to a plaintiff who is 60 years
of age or older at the time of judgment.” Thus, only when
a plaintiff is younger than sixty years of age at the time
of judgment, must the trial court reduce the plaintiff’s
future damages to present cash value.
Plaintiff asserts that, for purposes of § 6311, the
term “plaintiff” in a wrongful death action is either the
personal representative or the decedent, based on the age
that the decedent would have been had she been alive at the
time of judgment. On the other hand, defendants and the
Chief Justice contend that § 6311 is a limited exception
that does not apply to a wrongful death action because the
“plaintiff” in such an action is the estate, which cannot
have an age. Post at 20.
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(1)(c), (d), and (e) do not apply. Although the Court
(continued . . . .)
(e) All future noneconomic damages reduced
to gross present cash value.
33
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 plaintiff’s
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 evaluated. 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
34
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 to the
percentage of plaintiff’s fault.” As described by the
Court of Appeals, these “reference[s] to ‘plaintiff’ [are]
not . . . reference[s] to a personal representative [or an
estate] in a wrongful death case, because [neither] would
35
. . . be the one evaluated for comparative negligence;
instead, the decedent would be so evaluated.” Shinholster,
supra at 357.20 We agree with the trial court and hold
that, for purposes of § 6311, the term “plaintiff” refers
to the decedent, Mrs. Shinholster.
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,21 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.
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
20
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.
21
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, but rather,
reasonably, for purposes of § 6311, retains her age.
36
consider the conduct of all parties whose conduct has
constituted a proximate cause of plaintiff's damages, and
because, on the basis of the evidence presented by
defendants, reasonable minds could find that plaintiff’s
pre-treatment negligence here constituted “a proximate
cause”—a foreseeable, natural and probable consequence—of
her fatal stroke, we remand this case to the trial court
for proceedings consistent with the opinions of this Court.
Further, based on our decision in Jenkins, where we held
that the medical malpractice noneconomic damages cap of §
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 cap
of § 1483 applies when the injured person, at any time
while still living and as a result of a defendant’s
negligent conduct, fits within the ambit of § 1483 (1)(a),
(b), or (c). Finally, because the term “plaintiff,” as
used in § 6311, refers, for purposes of a wrongful death
action, to the decedent, and because Mrs. Shinholster, 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 the trial court cannot reduce any
future damages award to plaintiff to their present value.
Stephen J. Markman
37
CORRIGAN, C.J., and TAYLOR and YOUNG, JJ.
We join in section III(A) and with the determination
in section III(B) that the medical malpractice cap of §
1483 applies to a wrongful death action based on an
underlying claim of medical malpractice.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
CAVANAGH and KELLY, JJ.
We join in section III(C) and concur in the result
only with regard to section III(B).
Michael F. Cavanagh
Marilyn Kelly
WEAVER, J.
I join in sections III(B) and III(C).
Elizabeth A. Weaver
38
S T A T E O F M I C H I G A N
SUPREME COURT
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123720
ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,
Defendant-Appellant,
and
DENNIS ADAMS, M.D. AND MARY ELLAN
FLAHERTY, M.D.,
Defendants.
_____________________________________
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123721
KATHERINE ADAMS, Personal Representative
Of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,
Defendants-Appellants,
and
ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,
Defendant.
_____________________________________
MARKMAN, J. (concurring).
Although I agree fully with the majority analysis, I
write separately to elaborate on my views concerning §
II(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.1 In
1
I believe that the distinctions plaintiff, the trial
court, the Court of Appeals, and other courts have
attempted to draw between “pre-treatment” 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 plaintiff’s 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, plaintiff’s alleged negligence would be
considered “post-treatment” negligence, and, thus,
admissible under both the lower courts’ and plaintiff’s
interpretation of § 6304. However, because defendants had
not treated plaintiff in the past, plaintiff’s alleged
negligence would be considered “pre-treatment” negligence,
and, thus, inadmissible under both the lower courts’ and
plaintiff’s interpretation of § 6304. Accordingly,
defendants would be held more at fault because the trier of
(continued . . . .)
2
the context of medical malpractice, it has long been held
that negligent medical treatment of an injury is
foreseeable and is ordinarily not a superseding cause that
cuts off the causal contribution of the act that caused the
injury. In People v Townsend, 214 Mich 267; 183 NW 177(1921), the defendant was driving drunk when he ran off the
road and hit a tree, severely lacerating a passenger’s
legs. Although the passenger was immediately taken to the
hospital, her lacerations became infected because of
medical malpractice committed by the hospital’s doctors,
and she died twelve days later from blood poisoning. As a
result of this death, the defendant was charged with and
convicted of involuntary manslaughter. The defendant
appealed his conviction, contending that his passenger’s
death was a natural and probable result, not of the
defendant’s drunk driving, but rather of the doctors’
negligence. This Court disagreed and stated:
(continued . . . .)
fact would not be permitted to consider plaintiff’s “pre-
treatment” negligence in apportioning fault in relation to
determining plaintiff’s damages. Because I see no basis in
treating defendants any differently than Dr. Vicencio, I
cannot agree with the lower courts’ and plaintiff's
interpretation of § 6304. Plaintiff’s alleged negligence
should be considered regardless of whether defendants had
treated plaintiff in the past.
3
“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.
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
4
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.”).2
Where evidence exists in a medical malpractice action that
a doctor’s negligence was not the sole proximate cause of
the plaintiff’s injury, the trier of fact must be permitted
to consider other proximate causes for such injury,
including the plaintiff’s own pre-treatment negligence.3
2
“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).
3
In permitting the trier of fact in a medical
malpractice case to consider a plaintiff’s 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 in
accordance with such determination); Hardy v Monsanto
Enviro-Chem Systems, Inc, 414 Mich 29, 40; 323 NW2d 270
(continued . . . .)
5
II. COMPARATIVE NEGLIGENCE
In holding that in a medical malpractice action, the
trier of fact should not be permitted to consider a
plaintiff’s 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 plaintiff’s 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).4
(continued . . . .)
(1982) (holding that “it would be ‘anomalous’ to hold a
defendant liable for damages in excess of the amount
causally related to his negligence”); Placek v Sterling
Hts, 405 Mich 638, 661; 275 NW2d 511 (1979) (holding that
“‘[t]he doctrine of pure comparative negligence does not
allow one at fault to recover for one’s own fault, because
damages are reduced in proportion to the contribution of
that person’s negligence, whatever that portion is.’”
(Citation omitted.)
4
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 liable for negligent
(continued . . . .)
6
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 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 plaintiff’s pre-treatment
negligence in apportioning fault, “many health-care
professionals [would] escape liability for negligently
treating ill patients,” the Court of Appeals apparently
(continued . . . .)
treatment.” This is simply a misstatement of the doctrine
of comparative negligence.
7
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 distribut[ing] responsibility
according to fault of the respective parties.’” (Citation
omitted.) The fact that a doctor negligently undertook to
treat an existing condition may be an important, and in
many cases the overriding, factor in the trier of fact’s
apportionment of fault in determining damages.5 There is no
5
“[A]pplying the principles of comparative fault to a
medical malpractice action, a physician is liable only for
that portion of the plaintiff’s 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
(continued . . . .)
8
reason to believe that a reasonable trier of fact will not
accord that circumstance as much weight and consideration
as it deserves in the particular case. However, there may
sometimes be additional factors that will also be relevant
in the apportionment of fault in determining damages,
including evidence that the plaintiff’s own conduct was
either negligent, grossly negligent, or even intentional.6
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 plaintiff’s negligence
constituted a proximate cause of her injury and subsequent
damages, the trier of fact must be allowed to consider such
(continued . . . .)
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 plaintiff’s medical malpractice damages in accord with
the plaintiff’s own negligence which “substantially
contributed to initially cause” the reason for which the
plaintiff sought medical treatment).
6
“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.
9
evidence when appointing fault.” Ante at 10-11. However,
the majority opinion does not elaborate regarding what type
of evidence may satisfy this standard. In my judgment,
only where the defendant presents sufficient relevant
evidence, which generally will be based on substantiated
scientific or other documented, reliable, and verifiable
findings, that a reasonable person could have foreseen that
his injury and subsequent damages were the “natural and
probable consequence” of his own conduct, will § 6304
require that the trier of fact determine whether such
conduct “contributed” to the plaintiff’s injury and
subsequent damages, thereby offsetting to some degree the
defendant's exclusive liability.7
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 plaintiff’s “pre-
7
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 plaintiff’s injury and
damages were a genuinely foreseeable, natural, and probable
consequence of the plaintiff's alleged negligence.
10
treatment” 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 pre-treatment or
post-treatment negligence, if such negligence was “a
proximate cause” of the plaintiff's injury and subsequent
damages.8
Concern has been expressed at argument that, if a
plaintiff’s pre-treatment conduct may be considered under §
6304, this will enable a negligent doctor to avoid, at
least in part, liability for his malpractice. For example,
assume that a plaintiff, whose doctor has negligently
failed to diagnosis her impending heart attack, files a
medical malpractice action against the doctor on the basis
8
“‘The pre-treatment health habits of a patient’ . . .
‘are germane to the issue of proximate cause . . . .’”
Bryant v Calantone, 286 NJ Super 362, 368; 669 A2d 286
(1996)(citations omitted). “This does not mean, however,
that the patient’s poor health is irrelevant to the
analysis of a claim for reparation. While the doctor may
well take the patient as she found her, she cannot reverse
the frames to make it appear that she was presented with a
robust vascular condition; likewise, the physician cannot
be expected to provide a guarantee against a cardiovascular
incident. All that the law expects is that she not
mistreat such a patient so as to become a proximate
contributing cause to the ultimate vascular injury.”
Ostrowski v Azzara, 111 NJ 429, 445; 545 A2d 148 (1988).
11
of such negligence. At trial, the defendant attempts to
offset a portion of his fault by introducing evidence that
the plaintiff herself was a proximate cause of her heart
attack because she had eaten a bag of potato chips daily
for the past twenty years. In my judgment, the plaintiff’s
injuries and subsequent damages in such a circumstance
would be far “too insignificantly related to” and “too
remotely affected” by such conduct, and thus wholly
inadequate to establish “a proximate cause” relationship
between the plaintiff's conduct and her injury and damages.
See Davis v Thornton, 384 Mich 138, 145; 180 NW2d 11
(1970). It is simply not a foreseeable, natural, or
probable consequence that such conduct will result in a
heart attack. The instant case is clearly distinguishable
because plaintiff here failed to regularly take medication
that was prescribed by her doctor in order precisely to
prevent the specific fatal injury that she suffered. That
is, there is a far closer and more direct connection
between plaintiff’s negligent conduct and her injury, and
thus I believe that such conduct may reasonably be
considered by a trier of fact as “a proximate cause” of her
injury and subsequent damages.
In summary, in a medical malpractice action in
determining whether the plaintiff’s own negligence has been
12
“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 plaintiff’s
specific injury and damages were a genuinely foreseeable,
natural, and probable consequence of her negligence. In
cases such as this, in which a plaintiff’s 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 plaintiff’s 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 plaintiff's lifestyle, exercise habits, or
diet.
13
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. Under § 6304, the principle is the
same where evidence exists that the negligence of
Shinholster herself was a proximate cause of her fatal
stroke and subsequent damages. Further, because the jury
in this case has already determined that defendants
breached their standard of care, a determination that I
note defendants have not appealed, I would reverse the
judgment of the Court of Appeals and remand this case for
calculation of damages only.
Stephen J. Markman
14
S T A T E O F M I C H I G A N
SUPREME COURT
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123720
ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,
Defendant-Appellant,
and
DENNIS ADAMS, M.D. AND MARY ELLEN
FLAHERTY, M.D.,
Defendants.
_____________________________________
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123721
KATHERINE ADAMS, Personal Representative
Of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,
Defendants-Appellants,
and
ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,
Defendant.
_____________________________________
CORRIGAN, C.J. (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 plaintiff’s
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 plaintiff’s
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 600.1483(1) provides
2
that the lower cap applies unless one of the enumerated
exceptions applies. Death is not an enumerated exception.
This Court is not free to question the Legislature’s policy
choices; rather, the statutory language must be applied as
written.
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
3
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,1 it surely would have
1
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 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
(continued . . . .)
4
supported the same conclusion for a greater period-the
previous year. Accordingly, the trial court clearly erred
in precluding evidence made admissible by MCL 600.6304 and
this prevented defendants from receiving a fair trial.2 MCR
(continued . . . .)
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.
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
be alive?
A. I think there was a good chance that
she may have been.
2
I further note that, although Justice MARKMAN argues,
ante at 16 and n 11, that defendants have not argued that a
(continued . . . .)
5
(continued . . . .)
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 “presented
expert testimony supporting their claim that [the
decedent’s] persistent failure or refusal to comply with []
clearly communicated medical advice was a proximate cause
of [the decedent’s] death. The trial court’s instruction,
however, prevented the Jury from considering this
negligence on [the decedent’s] part as a cause of her
injury.”
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
plaintiff's 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. . . .
(continued . . . .)
6
2.611(A)(1)(a). New trials limited only to damage issues
are disfavored. See Burns v Detroit, 468 Mich 881; 658
NW2d 468 (2003); Garrigan v LaSalle Coca-Cola Bottling Co,
373 Mich 485, 489; 185 NW2d 97 (1964).
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) injury; (3) proximate
cause—a definitive legally recognized linkage between the
(continued . . . .)
* * *
Based on the evidence that was presented,
and further evidence that could have been
presented, it can only be concluded that a jury
could have found that the decedent was negligent
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.
7
breach and the injury; and (4) damages. Cox v Flint Bd of
Hosp Managers, 467 Mich 1, 10; 651 NW2d 356 (2002). Simply
proving that there was a breach of the standard of care,
without more, does not prove liability. A breach of the
standard of care is only relevant if the trier of fact
determines that that breach is a proximate cause of the
plaintiff’s injury. It is entirely possible for a
defendant to admit negligence and still argue there is no
liability because the negligence was not the proximate
cause of the injury. Here, defendants were precluded from
offering evidence that any breach of the standard of care
was not the proximate cause of the decedent’s injury, given
her pretreatment negligence. Had the evidence been
presented, the jury could reasonably have concluded that
even if defendants had breached the standard of care, they
still were not liable because any breach was not a
proximate cause of the decedent’s injuries. Therefore, a
new trial on all issues, including liability, is necessary.
Limiting the new trial to damages only ignores the
important fact that proximate cause is essential to a
plaintiff’s prima facie case, and improperly conflates two
separate and necessary elements of liability: of a breach
8
of a standard of care and a showing that that breach was a
proximate cause of the injury.3
In fact, under our statutory scheme, the issues of
liability and damages, as they relate to comparative
negligence, are inextricably linked. MCL 600.2959
provides:
3
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
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 be 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.]
9
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 plaintiff’s
negligence that contributed as a proximate cause
to [his/her] [injury/property damage.]
This is known as comparative negligence.
(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 plaintiff’s 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
10
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
____; ___ NW2d ___ (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:
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
11
$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]
4
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.
(continued . . . .)
12
As an initial matter, MCL 600.1483(1) requires the
trial court to determine whether one of the statutory
exceptions, and thereby the higher cap, applies. Here,
however, the jury was improperly instructed to return a
special verdict that required answers to the following
questions: “Did [the decedent] suffer hemiplegia,
paraplegia, or quadriplegia resulting in a total or
permanent functional loss of one or more limbs caused by
injury to the brain?” and “Did [the decedent] suffer
permanently impaired cognitive capacity rendering her
incapable of making independent, responsible life decisions
and permanently incapable of independently performing the
activities of normal, daily living?” The jury answered
“yes” to both questions, and the trial court determined
that the higher, $500,000 cap was therefore applicable.
These questions should not have been submitted to the
jury because the applicability of § 1483 is a question for
(continued . . . .)
(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.]
13
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
not included in the statute. Had the Legislature wished to
include negligence causing death as an exception, it could
have done so.
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
14
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
requires adjustment of the verdict. First, § 1483(1)
imposes the $280,000 cap unless “1 or more of the . . .
exceptions apply as determined by the court pursuant to
section 6304 . . . .” Section 6304(5), in turn, directs
15
the trial court to “reduce an award of damages” as required
by the limitations set forth in § 1483(1). This language
supports the conclusion that the exception must be
applicable at the time the verdict is adjusted by the trial
court. Second, the language of subsections 1(a) and (b) of
the cap statute, § 1483, is in the present tense (“[t]he
plaintiff is hemiplegic”; “[t]he plaintiff has permanently
impaired cognitive capacity”), clearly requiring that the
enumerated conditions currently exist. Here, at the time
of the postverdict decision regarding the amount
recoverable, the decedent would not have been described as
someone who was paraplegic or someone who had a permanently
impaired cognitive capacity; rather, the decedent would
have only been described as deceased.
For the same reasons stated in Jenkins, supra at ___,
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
16
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 damages
cap, and because the statutory syntax suggests that the
plaintiff must currently fall into one of the enumerated
exceptions at the time of the postverdict recovery
determination, I believe that the lower tier damages cap
applies in wrongful death actions alleging medical
malpractice.
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.
17
(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).
MCL 600.6311, however, provides an exception to the
requirement in MCL 600.6306 of a reduction to present
value:
Sections 6306(1)(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
18
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 Medical
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 by, and in the name of, the personal
representative of the estate of the deceased person.”
Indeed, the named plaintiff in the instant case is “Estate
of Betty Jean Shinholster,” “by” the personal
representative.
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
19
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 plaintiff’s 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 plaintiff’s 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
20
alleging medical malpractice, I do not agree that the
higher tier applies in such cases. Instead, I would hold
that the lower cap of MCL 600.1483(1) applies.
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.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
21
S T A T E O F M I C H I G A N
SUPREME COURT
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123720
ANNAPOLIS HOSPITAL, assumed name for,
OAKWOOD UNITED HOSPITALS, INC.,
Defendant-Appellant,
and
DENNIS ADAMS, M.D. AND MARY ELLEN
FLAHERTY, M.D.,
Defendants.
_______________________________
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123721
KATHERINE ADAMS, Personal Representative
of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,
Defendants-Appellants,
and
ANNAPOLIS HOSPITAL, assumed name for,
OAKWOOD UNITED HOSPITALS, INC.,
Defendant.
_______________________________
CAVANAGH, J. (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 ___; ___ NW2d ___ (2004). And finally, I
must respectfully dissent from the majority’s decision
allowing the trier of fact to consider plaintiff’s 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 plaintiff’s 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 plaintiff’s
pretreatment negligence to determine liability. Justice
Markman’s approach, allowing the jury to consider
plaintiff’s pretreatment negligence only when determining
damages, is also contrary to general tort principles.
While Justice Markman claims that allowing the jury to
consider a plaintiff’s pretreatment negligence in a medical
2
malpractice action is consistent with prior law, ante at 5
n 3, a close reading of this Court’s precedent shows that
it does not support Justice Markman’s argument. Make no
mistake, allowing a jury to consider a plaintiff’s
pretreatment negligence in a medical malpractice action is
a sweeping new decision, with no basis in this Court’s
prior rulings.
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 plaintiff’s 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
plaintiff’s 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
3
proximate cause of the plaintiff’s 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 plaintiff’s injury, its attention would be more properly
focused on the plaintiff’s damage.
The plaintiff’s 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. In this case, the damage plaintiff
claims is the difference between the life of a woman who
suffered a mini-stroke that was properly treated and a dead
woman. The majority potentially eliminates all doctors’
liability for all negligent behavior by mischaracterizing
the damage. It is absurd to assert that plaintiff’s
pretreatment behavior can be considered the proximate cause
of the damage inflicted by the doctor’s malpractice.
“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,
4
provides that the jury in a medical malpractice action
cannot consider the plaintiff’s 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 plaintiff’s 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 plaintiff’s
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, 306-307 (Iowa, 2002);
Harding v Deiss, 300 Mont 312, 318; 3 P3d 1286 (2000);
Smith v Kennedy, 2000 US Dist LEXIS 9897, 11-12 (D Kan,
2000); Harvey v Mid-Coast Hosp, 36 F Supp 2d 32, 37-38 (D
Me, 1999); Durphy v Kaiser Foundation Health Plan of Mid-
Atlantic States, Inc, 698 A2d 459, 465-467 (DC App, 1997);
Fritts v McKinne, 934 P2d 371, 374 (Okla Civ App, 1996);
5
Spence v Aspen Skiing Co, 820 F Supp 542, 544 (D Colo,
1993); Van Vacter v Hierholzer, 865 SW2d 355, 359 (Mo App,
1993); Martin v Reed, 200 Ga App 775, 777; 409 SE2d 874
(1991); Jensen v Archbishop Bergan Mercy Hosp, 236 Neb 1,
15; 459 NW2d 178 (1990); Cowan v Doering, 215 NJ Super 484,
495; 522 A2d 444 (1987); Owens v Stokoe, 115 Ill 2d 177,
183; 503 NE2d 251 (1986).
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
plaintiff’s original negligence.” Ante at 3 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 Markman’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 plaintiff’s negligence in breaking her leg
be a proximate cause of the damage.
6
Because the majority mischaracterizes the damage and
allows the jury to consider plaintiff’s pretreatment
negligence, I must respectfully dissent. I refuse to take
part in the judicial determination of what is and is not
socially acceptable behavior. Smokers, couch potatoes, and
fast food connoisseurs pick your doctors carefully because
after today, no matter how negligent a doctor is in
treating you, the jury will be able to consider your poor
health habits when deciding whether to hold the doctor
liable. I would affirm the holding of the trial court and
the Court of Appeals.
Michael F. Cavanagh
Marilyn Kelly
7
S T A T E O F M I C H I G A N
SUPREME COURT
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123720
ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,
Defendant-Appellant,
and
DENNIS ADAMS, M.D. AND MARY ELLEN
FLAHERTY, M.D.,
Defendants.
_____________________________________
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123721
KATHERINE ADAMS, Personal Representative
Of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,
Defendants-Appellants,
and
ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,
Defendant.
_____________________________________
WEAVER, J. (concurring in part and dissenting in part).
I
I dissent from the majority’s holding that pursuant to
MCL 600.6304, plaintiff’s pretreatment negligence may be
considered by the jury in assessing comparative negligence
because it may have been a proximate cause of plaintiff’s
death. Ante at 2-3.1 I agree with Justice Cavanagh’s
concurring and dissenting opinion that it would be improper
for the jury to consider plaintiff’s pretreatment
negligence to determine comparative negligence, ante at 2,
and I would affirm the Court of Appeals decision on this
point.
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
injury, including each plaintiff. MCL 600.6304(8) defines
1
The plaintiff’s negligence after seeking treatment is
not at issue in this case; the parties agree that a
plaintiff’s negligence after seeking treatment may be
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 plaintiff’s
conduct before seeking treatment.
2
“fault” as “an act, an omission, conduct . . . that is a
proximate cause of damage sustained by a party.” (Emphasis
added.)
As Justice Cavanagh explains, the proper focus of the
statute is on the plaintiff’s damage, not the plaintiff’s
injury, and “[t]he plaintiff’s 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 4.2
Further, I would hold that the plaintiff’s
pretreatment negligence did not fall within MCL 600.6304’s
definition of “fault” for the purposes of comparative
negligence. While plaintiff’s pretreatment negligence
caused the need for care or treatment that led to the
alleged medical malpractice, the plaintiff’s pretreatment
negligence was not a proximate cause of plaintiff’s
damages.
2
It should be noted that plaintiff’s pretreatment
conduct and general health will be considered when the jury
determines the amount of plaintiff’s 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 plaintiff’s expert opined.
3
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 actor’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 plaintiff’s negligence
must be a proximate cause of the plaintiff’s damages. The
majority does not offer any analysis regarding why it is
appropriate to consider plaintiff’s pretreatment negligence
as a proximate cause of her death, but simply states that
it may be considered.
4
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.3
Owens v Stokoe, 115 Ill 2d 177, 183; 503 NE2d 251 (1987)
(dental patient’s failure to obtain second option, prior
poor oral hygiene, and alleged refusal to permit X-ray to
be taken of his teeth were insufficient to raise issue of
contributory negligence because parasthesia was proximately
caused by damage to the left interior alveolar nerve during
surgery and conduct of patient did not prevent surgeon from
properly performing surgery); Eiss v Lillis, 233 Va 545,
553-554; 357 SE2d 539 (1987) (the plaintiff’s negligently
taking aspirin along with heart medicine before the
physician’s alleged negligence was not a proximate cause of
3
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.
5
the plaintiff’s death); Jensen v Archbishop Bergan Mercy
Hosp, 236 Neb 1, 15-16; 459 NW2d 178 (1990) (although the
plaintiff’s failure to lose weight may have been causally
related to his injury, his conduct regarding his weight
problem merely furnished an occasion or condition for the
medical care that was the basis of the medical malpractice
action, and it was improper to instruct the jury to
consider whether the plaintiff had been contributorily
negligent); Harding v Deiss, 300 Mont 312, 318; 3 P3d 1286
(2000) (the plaintiff’s negligence in riding a horse when
she had asthma and was allergic to horses could not be
compared to physician’s failure to immediately intubate her
upon her arrival at the hospital); DeMoss v Hamilton, 644
NW2d 302, 307 (Iowa, 2002) (the plaintiff’s failure to stop
smoking, have regular follow-up examinations, lose weight,
and begin an exercise program after a heart attack provided
the occasion for medical treatment, but was irrelevant to
the question of defendant’s medical negligence). See also
Harvey v Mid-Coast Hosp, 36 F Supp 2d 32, 37-38 (D Me,
1999), Spence v Aspen Skiing Co, 820 F Supp 542, 544 (D
Colo, 1993), Van Vacter v Hierholzer, 865 SW2d 355, 359 (Mo
6
App, 1993), and Nelson v McCreary, 694 A2d 897 (DC App,
1997).4
In holding that plaintiff’s pretreatment negligence
may be considered a proximate cause of plaintiff’s damages
for purposes of comparative negligence, the majority
abandons the long-standing principle of tort law that the
defendant takes the plaintiff as he finds her. See 2
Restatement Torts, 2d,§ 461, p 502; Rawlings v Clyde Plank
& Macadamized Rd Co, 158 Mich 143, 146; 122 NW 504 (1909).
As recently as 2000 this Court, including the majority,
recognized and applied this principle of law. Wilkinson v
Lee, 463 Mich 388, 396; 617 NW2d 305 (2000). The patient’s
conduct before seeking medical treatment is merely a factor
the physician should consider in treating the patient.
Harding, supra at 318. Rather than retreating from such a
long-established principle, I would affirm the Court of
Appeals on this issue.
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
4
But see, contra, Wyatt v United States, 939 F Supp
1402 (ED Mo, 1996).
7
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).5
5
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:
(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
(continued . . . .)
8
III
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.6
IV
Because I would hold that the plaintiff’s pretreatment
negligence in this medical malpractice action did not fall
(continued . . . .)
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.
6
MCL 600.6311 provides: “Sections 6306(1)(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.”
9
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.
Elizabeth A. Weaver
KELLY, J.
I concur with respect to sections I, III, and IV.
Marilyn Kelly
10
S T A T E O F M I C H I G A N
SUPREME COURT
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123720
ANNAPOLIS HOSPITAL, assumed name for,
OAKWOOD UNITED HOSPITALS, INC.,
Defendant-Appellant,
and
DENNIS ADAMS, M.D. AND MARY ELLEN
FLAHERTY, M.D.,
Defendants.
_______________________________
ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,
Plaintiff-Appellee,
v No. 123721
KATHERINE ADAMS, Personal Representative
of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,
Defendants-Appellants,
and
ANNAPOLIS HOSPITAL, assumed name for,
OAKWOOD UNITED HOSPITALS, INC.,
Defendant.
_______________________________
KELLY, J. (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.
Marilyn Kelly
2