Jenkins v. Patel , 263 Mich. App. 508 ( 2004 )

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688 N.W.2d 543 (2004) 263 Mich. App. 508
Margaret JENKINS, Personal Representative of the Estate of Mattie Howard, Deceased, Plaintiff-Appellee,
v.
Jayesh Kumar PATEL and Comprehensive Health Services, d/b/a The Wellness Plan, Defendants-Appellants.
Docket No. 233116.
Court of Appeals of Michigan.
Submitted August 25, 2004, at Lansing. Decided September 7, 2004, at 9:00 a.m. Released for Publication October 28, 2004.
Ira B. Saperstein, P.C. (by Ira B. Saperstein), Southfield, for the plaintiff.

Grier and Copeland (by Dora A. Brantley) and Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman), Detroit, for Jayesh K. Patel and Comprehensive Health Services.

Before: COOPER, P.J., and MURPHY and KIRSTEN FRANK KELLY, JJ.

ON REMAND

MURPHY, J.

This appeal, involving the medical-malpractice cap on noneconomic damages found in M.C.L. § 600.1483 (damages cap), is before us on remand from the Michigan Supreme Court "for consideration of the constitutional issues raised by plaintiff, which were not resolved by the Court of Appeals in light of its analysis of the statutory issue." Jenkins v. Patel, 471 Mich. 158, 174, 684 N.W.2d 346 (2004). The Supreme Court reversed our earlier opinion, holding, contrary to our conclusion, that the damages cap does apply to wrongful *544 death actions where the underlying claim is medical malpractice. Defendants' arguments regarding the alleged excessiveness of the $ 10 million verdict are no longer pertinent in light of the Supreme Court's ruling applying the damages cap. Id. at 174, 684 N.W.2d 346. Therefore, the only issues to resolve concern plaintiff's arguments that M.C.L. § 600.1483 is unconstitutional because it violates the right to a jury trial, Const. 1963, art. 1, § 14; the separation of powers doctrine, Const. 1963, art. 3, § 2; and equal protection guarantees, U.S. Const., Am. XIV and Const. 1963, art. 1, § 2.

Pursuant to the majority opinion in Zdrojewski v. Murphy, 254 Mich.App. 50, 657 N.W.2d 721 (2002), and the reasoning of a majority of our current Supreme Court in Phillips v. Mirac, Inc., 470 Mich. 415, 685 N.W.2d 174 (2004), we are compelled to conclude that all of plaintiff's constitutional arguments fail.^[1] Accordingly, we remand to the trial court for entry of judgment consistent with the Supreme Court's holding and our holding today.

Reversed and remanded. We do not retain jurisdiction.

COOPER, P.J., concurred.

KIRSTEN FRANK KELLY, J.

I concur in the result only.

NOTES

[1] We note that a separate panel of this Court in Wiley v. Henry Ford Cottage Hosp., 257 Mich.App. 488, 668 N.W.2d 402 (2003), indicated its belief that M.C.L. § 600.1483 unconstitutionally infringed on the right to jury trial; however, it concluded that Zdrojewski required it to find the damages cap constitutional. Having created a conflict under MCR 7.215(J), the bench was polled and a special panel to resolve the conflict was declined. 257 Mich.App. 801, 668 N.W.2d 641 (2003). The Michigan Supreme Court thereafter denied leave to appeal. 469 Mich. 1012, 678 N.W.2d 439 (2004). Further examination of the issues by this Court is therefore not warranted.