Jenkins v. Patel

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 26, 2004

MARGARET JENKINS, as Personal
Representative of the ESTATE OF
MATTIE HOWARD, DECEASED,

Plaintiff-Appellee,

v o. 123957
N

JAYESH KUMAR PATEL, M.D., and
COMPREHENSIVE HEALTH SERVICES,
INC., a Michigan Corporation,
doing businsess as THE WELLNESS
PLAN, Jointly and Severally,

Defendants-Appellants.

_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

We granted leave to appeal to consider whether the

medical malpractice noneconomic damages cap, MCL

600.1483(1), applies to a wrongful death action where the

underlying claim is medical malpractice. The jury awarded

plaintiff $10 million in noneconomic damages. The trial

court denied defendants’ motion for remittitur or a new

trial, concluding that the medical malpractice noneconomic
damages cap does not apply to wrongful death actions. The

Court of Appeals affirmed. Because we conclude that the

medical malpractice noneconomic damages cap does apply to

wrongful death actions where the underlying claim is

medical malpractice, we reverse the judgment of the Court

of Appeals and remand this case to the Court of Appeals for

consideration of the constitutional issues raised by

plaintiff that were not resolved by the Court of Appeals in

light of its analysis of the statutory issue.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff brought this wrongful death action against

defendants, seeking to recover damages for the death of her

mother that allegedly resulted from defendants’ medical

malpractice. Plaintiff’s decedent began treating with

defendant Dr. Jayesh Patel shortly after being hospitalized

for a stroke. Plaintiff contends that Dr. Patel

negligently managed the decedent’s renal disease and

hypertension, which ultimately led to her death. Plaintiff

sought damages for the loss of society and companionship

sustained by the decedent’s seven children and seven

siblings. The jury awarded plaintiff $10 million in

noneconomic damages.

Defendants filed a motion for remittitur or for a new

trial, arguing that the medical malpractice noneconomic

2

damages cap, MCL 600.1483(1), requires a reduction in the

damage award, and, in the alternative, that the award is

excessive. The trial court held that the medical

malpractice noneconomic damages cap does not apply to

wrongful death actions. The trial judge further held that,

although the award is excessive, he could not determine an

appropriate amount of damages because he was not personally

present at the trial to hear the testimony of the witnesses

and judge their credibility.1 Therefore, he let the jury’s

$10 million verdict stand. In a published decision, the

Court of Appeals affirmed the trial court’s decision that

the medical malpractice noneconomic damages cap does not

apply to wrongful death actions.2 The Court of Appeals,

however, remanded the case to the trial court, holding that

the trial court, having found the award to be excessive,

must either set a remittitur amount or grant a new trial on

damages only.3 One of the judges on the panel wrote a

1
The judge who presided over the jury trial was
subsequently appointed to a federal judicial position and
was no longer on the trial court at the time the motion for
remittitur or for a new trial was heard.
2
256 Mich App 112; 662 NW2d 453 (2003).
3
The Court of Appeals further instructed the trial
court that it could revisit its ruling concerning whether
the verdict was excessive if it acknowledged that its
(continued…)

3

concurring opinion to emphasize her belief that the

language of the wrongful death act precludes application of

the medical malpractice noneconomic damages cap. We

granted defendants’ application for leave to appeal.4

II. STANDARD OF REVIEW

Whether the medical malpractice noneconomic damages

cap, MCL 600.1483(1), applies to a wrongful death action

where the underlying claim is medical malpractice is an

issue of statutory interpretation, which is a question of

law that this Court reviews de novo. Morales v Auto-Owners

Ins Co, (After Remand), 469 Mich 487, 490; 672 NW2d 849

(2003).

III. ANALYSIS

MCL 600.1483, also referred to as the medical

malpractice noneconomic damages cap, provides, in pertinent

part:

(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

(…continued)

previous ruling was "nondefinitive" in light of its concern

at the time that it had not been present at trial.

4
469 Mich 958 (2003).

4

 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
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.

The wrongful death act, MCL 600.2922, provides, in

pertinent part:

(1) Whenever the death of a person or
injuries resulting in death shall be caused by
wrongful act, neglect, or fault of another, and
the act, neglect, or fault is such as would, if
death had not ensured, have entitled the party
injured to maintain an action and recover
damages, the person who or the corporation that
would have been liable, if death had not ensued,

5

 shall be liable to an action for damages,
notwithstanding the death of the person injured,
and although the death was caused under
circumstances that constitute a felony.

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

* * *

(6) In every action under this section, the
court or jury may award damages as the court or
jury shall consider fair and equitable, under all
the circumstances including reasonable medical,
hospital, funeral, and burial expenses for which
the estate is liable; 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; and damages for the loss of financial
support and the loss of the society and
companionship of the deceased.

There is no common-law right to recover damages for a

wrongfully caused death. Instead, the wrongful death act

provides the exclusive remedy under which a plaintiff may

seek damages for a wrongfully caused death. Courtney v

Apple, 345 Mich 223, 228; 76 NW2d 80 (1956). That does not

mean, however, that the wrongful death act is the only act

that is applicable in a wrongful death action. For

instance, the medical malpractice statute of limitations,

MCL 600.5838a, applies to wrongful death actions where the

underlying claim is medical malpractice because “in all

actions brought under the wrongful death statute, the

6

limitations period will be governed by the provision

applicable to the liability theory of the underlying

wrongful act.” Hawkins v Regional Medical Laboratories,

PC, 415 Mich 420, 436; 329 NW2d 729 (1982); Waltz v Wyse,

469 Mich 642; 677 NW2d 813 (2004). Additionally, actions

brought under the wrongful death act “accrue as provided by

the statutory provisions governing the underlying liability

theory . . . .” Hawkins, supra at 437. Accordingly, when

the underlying claim is medical malpractice, the medical

malpractice accrual statute, MCL 600.5838a, applies to a

wrongful death action. Further, this Court has recently

applied the medical malpractice notice of intent

requirement of MCL 600.2912b, the medical malpractice

tolling provision of MCL 600.5856(d), the medical

malpractice affidavit of merit requirement of MCL

600.2912d, and the medical malpractice expert witness

qualification requirements of MCL 600.2169(1)(a) to

wrongful death actions. Waltz, supra; Grossman v Brown,

470 Mich __; __ NW2d __ (2004); Halloran v Bhan, 470 Mich

__; __ NW2d __ (2004).5

5
The dissent is correct that neither this Court nor
the parties in these cases addressed whether these medical
malpractice provisions apply to wrongful death actions;
their application was just assumed. Post at 7-8.
(continued…)

7

 Clearly, the wrongful death act is not the only act

that is pertinent in a wrongful death action. “The mere

fact that our legislative scheme requires that suits for

tortious conduct resulting in death be filtered through the

so-called ‘death act’, MCL 600.2922; MSA 27A.2922, does not

change the character of such actions except to expand the

elements of damage available.” Hawkins, supra at 436.

That is, a wrongful death action grounded in medical

malpractice is a medical malpractice action in which the

plaintiff is allowed to collect damages related to the

death of the decedent.

The statute at issue here, MCL 600.1483, specifically

provides that it applies to “an action for damages alleging

medical malpractice . . . .”6 Plaintiff’s action is clearly

(…continued)

See also Anthony v Forgrave, 126 Mich App 489, 493;
337 NW2d 546 (1983), in which the Court of Appeals held
that “in a wrongful death action, venue is determined
through application of the venue statutes governing
personal injury actions; focus is on the cause of action
which underlies the wrongful death claim.”
6
The dissent contends that "the limitation on non-
economic damages does not always apply in an ‘action
alleging medical malpractice,’” post at 7, as indicated by
MCL 600.6098(1), which provides, “If the limitation
applies, the court shall set aside any amount of
noneconomic damages in excess of the amount specified in
section 1483.” [Emphasis added.] We agree that the cap
does not always apply in an action alleging medical
(continued…)

8

an “action for damages alleging medical malpractice

. . . .” Section 1483(1). This fact is undisputed.

Although the Court of Appeals recognized that Ҥ 1483

applies in an action for damages alleging medical

malpractice, and that the case before us, with respect to

the subject matter from which the negligence arose, is such

an action,” Jenkins v Patel, 256 Mich App 112, 122; 662

NW2d 453 (2003), it went on to conclude that “the

Legislature did not intend [§ 1483’s noneconomic] damages

cap to limit those damages in a wrongful-death, medical-

malpractice action.” Id. at 125-126. It reached this

conclusion on the basis that § 1483(3)’s definition of

“noneconomic loss” does not specifically include losses

related to wrongful death, such as loss of society and

companionship.

Section 1483(3) defines “noneconomic loss” as “damages

or loss due to pain, suffering, inconvenience, physical

impairment, physical disfigurement, or other noneconomic

loss.” The wrongful death act, MCL 600.2922(6),

(…continued)
malpractice. Instead, the cap applies only in medical
malpractice actions in which the plaintiff is awarded an
amount of noneconomic damages that exceeds the pertinent
cap. The Legislature’s use of the word “if,” however, does
not, as the dissent contends, indicate that the cap never
applies in a wrongful death action.

9

specifically provides that “the loss of the society and

companionship of the deceased” is an available remedy in a

wrongful death action. The Court of Appeals concluded that

the damages referred to in § 1483(3) “relate to damages

sustained by an individual surviving plaintiff rather than

damages sustained by next of kin in a wrongful-death action

. . . .” Jenkins, supra at 124. Thus, the Court of

Appeals concluded that § 1483 is not meant to limit damages

that a next of kin would seek for his own suffering, such

as loss of society and companionship.

The Court of Appeal’s reasoning is flawed, in our

judgment, because it fails to give meaning to all the words

of the statute and “[c]ourts must give effect to every

word, phrase, and clause in a statute and avoid an

interpretation that would render any part of the statute

surplusage or nugatory.” State Farm Fire & Cas Co v Old

Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002).

If the definition of “noneconomic loss” in § 1483(3) does

not encompass damages sought by a next of kin under the

wrongful death act for his own suffering, as the Court of

Appeals concluded, then such definition also would not

encompass such damages when sought by a next of kin of a

plaintiff who survived the medical malpractice. If that is

so, then the Legislature’s specific directive that § 1483

10

limits the total damages recoverable by “all plaintiffs”

means nothing. However, this language has to mean

something. In our judgment, the “all plaintiffs” language

means that the plaintiff who most directly suffered from

the medical malpractice is not necessarily the only

plaintiff in a medical malpractice action. Rather, the

“plaintiff’s” next of kin may also be plaintiffs in a

medical malpractice action and they may seek damages for

the losses that they have suffered as a result of the

medical malpractice, such as the loss of society and

companionship. Blackwell v Citizens Ins Co of America, 457

Mich 662 , 664 n 1; 579 NW2d 889 (1998)(a plaintiff’s

husband’s loss of consortium claim is derivative of the

plaintiff’s medical malpractice claim).

Furthermore, § 1483(3)’s definition of “noneconomic

loss” is not limited to “damages or loss due to pain,

suffering, inconvenience, physical impairment, [and]

physical disfigurement . . . .” Rather, § 1483(3)

specifically includes within the definition of “noneconomic

loss” all the things mentioned above and “other noneconomic

loss.” Therefore, just because a noneconomic loss, such as

loss of society, is not specifically listed under §

1483(3), does not mean that it is not a covered noneconomic

loss. Section 1483(2) directs the trier of fact to

11

“itemize damages into damages for economic loss and damages

for noneconomic loss.” Noneconomic damages are subject

either to the $280,000 cap or the $500,000 cap, while

economic damages are not subject to either of these caps.7

Damages awarded in an action for medical malpractice can

obviously only be economic or noneconomic. The damages

awarded in this case for loss of society and companionship

are clearly noneconomic damages. Rusinek v Schultz, Snyder

& Steele Lumber Co, 411 Mich 502, 504-505; 309 NW2d 163

(1981)(loss of consortium, which is defined as including

loss of society and companionship, is a noneconomic loss).

This fact is undisputed. Accordingly, we agree with

defendants that § 1483’s definition of “noneconomic

losses,” which includes “other noneconomic loss,” includes

noneconomic losses not specifically listed, including those

sought by plaintiff’s next of kin for their own pain and

suffering. Otherwise, a plaintiff’s next of kin would not

be able to recover for such things as loss of consortium,

7
Pursuant to MCL 600.1483(4), “[t]he 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.” The 2004 limitations are $366,000 and
$653,500. See http://www.michigan.gov/documents/
nonecolimit101_3658_7.pdf.

12

loss of society, and loss of companionship in a medical

malpractice action, and, as discussed above, a medical

malpractice plaintiff’s next of kin can most certainly

recover such damages. See Blackwell, supra.

Further support for our conclusion that the medical

malpractice noneconomic damages cap applies to a wrongful

death action where the underlying claim is medical

malpractice can be found in the allocation of liability

statute, MCL 600.6304. Section 1483(1) refers expressly to

§ 6304, stating that if the court determines, pursuant to §

6304, that one of the enumerated exceptions apply, then the

$500,000 cap, rather than the $280,000 cap, is applicable.

Section 6304 provides, in pertinent part:

(1) In an action based on tort or another
legal theory seeking damages for personal injury,
property damage, or wrongful death . . . the
court, unless otherwise agreed by all parties to
the action, 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
. . . .

* * *

(3) The court shall determine the award of
damages to each plaintiff in accordance with the
findings under subsection (1), subject to any

13

 reduction under subsection (5) . . . and shall
enter judgment against each party, including a
third-party defendant . . . .

* * *

(5) In an action alleging medical
malpractice, the court shall reduce an award of
damages in excess of 1 of the limitations set
forth in section 1483 to the amount of the
appropriate limitation set forth in section 1483.
The jury shall not be advised by the court or by
counsel for either party of the limitations set
forth in section 1483 or any other provision of
section 1483. [Emphasis added.]

Section 6304(1), requiring the jury to allocate fault among

all persons, expressly applies to wrongful death actions,

because it explicitly states, “In an action based on . . .

wrongful death . . . .” Section 6304(3) then requires the

court to reduce the plaintiff’s award in all subject

actions, including wrongful death actions, according to the

jury’s allocation of fault and subject to any reduction

required under subsection 5. As noted above, subsection 5

is the subsection requiring the court to apply the

noneconomic damages cap of § 1483. Thus, subsection 3 of §

6304 incorporates the noneconomic damages cap of § 1483

into wrongful death actions by ensuring that in any action

subject to § 6304, expressly including wrongful death

actions, the court will reduce the plaintiff’s verdict both

on the basis of the allocation of fault and on the basis of

14

§ 1483—the noneconomic damages cap for medical malpractice

cases.8

Plaintiff argues that the wrongful death act expressly

precludes application of the medical malpractice

noneconomic damages cap to wrongful death actions. As

noted above, MCL 600.2922(6) provides, in pertinent part:

In every action under this section, the
court or jury may award damages as the court or
jury shall consider fair and equitable, under all
the circumstances including reasonable medical,
hospital, funeral, and burial expenses for which
the estate is liable; 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; and damages for the loss of financial

8
The 1986 version of § 1483 provided, in pertinent
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.

The 1986 version of § 1483 capped noneconomic damages at
$225,000 unless one of seven exceptions, including death,
applied. Section 1483 was amended in 1993 to adopt a two-
tiered cap system. Under this two-tiered cap system, the
lower cap applies unless one of three exceptions, not
including death, applies. While the 1986 version of § 1483
specifically provided that the noneconcomic damages cap
does not apply to wrongful death actions, the current
version does not specifically provide that the cap does not
apply to wrongful death actions.

15

 support and the loss of the society and
companionship of the deceased.

Plaintiff argues that this provision governs damages in

wrongful death claims, in such a manner that other

provisions are rendered inapplicable. However, this Court

has held that other statutory and common-law limitations on

the amount of damages apply to wrongful death actions. For

instance, comparative negligence principles and the

collateral source setoff rule, MCL 600.6303(1), apply to

wrongful death actions. Solomon v Shuell, 435 Mich 104;

457 NW2d 669 (1990); Rogers v Detroit, 457 Mich 125; 579

NW2d 840 (1998), overruled on other grounds by Robinson v

Detroit, 462 Mich 439; 613 NW2d 307 (2000).9

Contrary to plaintiff’s contention, § 1483 and §

2922(6) are not incompatible. Notwithstanding § 1483, in

accordance with § 2922(6), “[i]n every action under” the

wrongful death act, “the court or jury may award damages as

the court or jury shall consider fair and equitable,”

including “reasonable compensation for the pain and

suffering, while conscious, undergone by the deceased

person during the period intervening between the time of

9
The dissent is correct that neither this Court nor
the parties in these cases addressed whether these
limitations apply to wrongful death actions; their
application was just assumed. Post at 8.

16

the injury and death; and damages for the loss of financial

support and the loss of the society and companionship of

the deceased.” Only after the court or jury has, in its

discretion, awarded damages as it considers fair and

equitable does the court, pursuant to § 6304(5), apply the

noneconomic damages cap of § 1483. This is made explicitly

clear in § 6098(1), which states:

A judge presiding over an action alleging
medical malpractice shall review each verdict to
determine if the limitation on noneconomic
damages provided for in section 1483 applies. If
the limitation applies, the court shall set aside
any amount of noneconomic damages in excess of
the amount specified in section 1483.

Section 6304(5) similarly provides:

In an action alleging medical malpractice,
the court shall reduce an award of damages in
excess of 1 of the limitations set forth in
section 1483 to the amount of the appropriate
limitation set forth in section 1483. The jury
shall not be advised by the court or by counsel
for either party of the limitations set forth in
section 1483 or any other provision of section
1483.

Although § 1483 reduces the damages awarded by the trier of

fact, it does nothing to impinge upon the trier of fact’s

ability to determine an amount that is “fair and

equitable.” That is, § 1483 does not diminish the ability

of the trier of fact to render a fair and equitable award

of damages; it merely limits the plaintiff’s ability to

recover the full amount awarded in cases where the cause of

17

action is based upon medical malpractice and the amount

exceeds the cap. See Phillips v Mirac, Inc, 470 Mich 415;

__ NW2d __ (2004).

As the Court of Appeals in Zdrojewski v Murphy, 254

Mich App 50, 76; 657 NW2d 721 (2002), quoting Phillips v

Mirac, Inc, 251 Mich App 586, 594; 651 NW2d 437 (2002),

aff’d 470 Mich 415; __ NW2d _(2004), explained when it held

that the noneconomic damages cap does not violate a

plaintiff’s right to a jury trial, the noneconomic damages

cap “‘does not impinge on a jury’s right to . . .

determine[e] . . . the amount of damages . . . incurred.’”

Instead, it “‘only limits the legal consequences of the

jury’s finding.’” That is, “‘[o]nce the jury has reached

its verdict, the trial judge merely enters a judgment on

the verdict that is consistent with the law.’” Id. at 76-

77. “Plaintiff was able to try this case in front of a

jury that rendered a verdict awarding plaintiff damages.

Because MCL 600.6304(5) prohibits the trial court from

informing the jury of the noneconomic damages limitation of

MCL 600.1483, the jury rendered its damages award on the

basis of the facts of the case, unaware of the limitation

of the statute.” Id. at 77. Accordingly, the noneconomic

damages cap does not violate a plaintiff’s statutory right

18

to have the court or jury “award damages as the court or

jury shall consider fair and equitable.” Section 2922(6).

IV. CONCLUSION

We conclude that the medical malpractice noneconomic

damages cap does apply to wrongful death actions where the

underlying claim is medical malpractice.10 Accordingly, we

reverse the judgment of the Court of Appeals and remand

this case to the Court of Appeals 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.11

Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.

10
Because no allegation has been made that plaintiff
was hemiplegic, paraplegic, quadriplegic, or had
permanently impaired cognitive capacity, or that there had
been permanent loss of or damage to a reproductive organ
because of defendants’ medical malpractice, we conclude
that the lower cap applies. Cf. Shinholster v Annapolis
Hosp, 471 Mich __; __ NW2d __ (2004).
11
Because we conclude that the medical malpractice
noneconomic damages cap applies to actions filed under the
wrongful death action where the underlying claim is medical
malpractice, and because defendants have not argued that an
award so capped is excessive, noneconomic damages in this
case must be reduced in accordance with § 1483, consistent
with this opinion.

19

 S T A T E O F M I C H I G A N

SUPREME COURT

MARGARET JENKINS, as personal
representative of the Estate
of Mattie Howard, deceased,

Plaintiff-Appellee,

v No. 123957

JAYESH KUMAR PATEL, M.D., and
COMPREHENSIVE HEALTH SERVICES,
INC., a Michigan Corporation,
d/b/a THE WELLNESS PLAN,
jointly and severally,

Defendants-Appellants.
_______________________________

KELLY, J. (dissenting).

I disagree with the majority's conclusion that the

medical malpractice noneconomic damages cap applies to

wrongful death actions. The Court of Appeals analysis and

decision concerning this issue were correct and should be

affirmed.

Statutory Interpretation

This Court has often repeated the proper approach to

interpreting statutes. We recently stated:

"The paramount rule of statutory
interpretation is that we are to effect the
intent of the Legislature. Tryc v Michigan
Veterans' Facility, 451 Mich 129, 135; 545 NW2d
642 (1996). To do so, we begin with the statute's
 language. If the statute’s language is clear and
unambiguous, we assume that the Legislature
intended its plain meaning and we enforce the
statute as written. People v Stone, 463 Mich
558, 562; 621 NW2d 702 (2001). In reviewing the
statute's language, every word should be given
meaning, and we should avoid a construction that
would render any part of the statute surplusage
or nugatory. Altman v Meridian Twp, 439 Mich 623,
635; 487 NW2d 155 (1992)." [Omelenchuk v City of
Warren, 466 Mich 524, 528; 647 NW2d 493 (2002),
quoting Wickens v Oakwood Healthcare Sys, 465
Mich 53, 60; 631 NW2d 686 (2001).]
The Wrongful Death Act

The wrongful death act1 is the exclusive remedy in

wrongful death cases. Courtney v Apple, 345 Mich 223, 228;

76 NW2d 80 (1956). The Court of Appeals correctly reasoned

that the medical malpractice noneconomic damages cap found

in MCL 600.1483 does not apply to actions brought under the

act. Jenkins v Patel, 256 Mich App 112; 662 NW2d 453

(2003). Furthermore, the Court of Appeals concurring

opinion of Judge Kelly underscores that a plain language

reading of the act precludes the application of the MCL

600.1483 cap.

The wrongful death act was passed to ensure the

preservation of claims that, at common law, would have

terminated with the death of the victim or the tortfeasor.

Hawkins v Regional Medical Laboratories, PC, 415 Mich 420,

1
MCL 600.2922.

2

428-429; 329 NW2d 729 (1982). To ensure the survival of a

claim, a wrongful death claim must be filed in conformity

with the provisions of the act.

An injured plaintiff may file suit under other

statutory provisions. However, if he dies in the course of

litigation, to recover damages for the death, his estate

must file a claim under the wrongful death act. MCL

600.2921. The act contains no cap on the damages available.

See MCL 600.2922. It was not amended by tort reform

legislation.2

In this case, the decedent's estate sought damages for

losses sustained by the decedent's seven children and seven

siblings. A malpractice action brought on behalf of the

decedent had she been alive would not have survived her.

Plaintiff had no alternative but to file suit under the

wrongful death act.

The act contains the substance, procedures, and the

measure of damages in an action brought against one who has

caused the death of another.

2
The most recent amendment to the wrongful death act
occurred in 2000. This amendment made modifications to the
statute in conformity with the Estates and Protected
Individuals Code. MCL 700.1101 et seq. Before that, the
statute was amended in 1985. It was not amended in 1995,
when tort reform legislation was passed.

3

 MCL 600.2922(6) provides:

In every action under this section, the
court or jury may award damages as the court or
jury shall consider fair and equitable, under all
the circumstances including reasonable medical,
hospital, funeral, and burial expenses for which
the estate is liable; 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; and damages for the loss of financial
support and the loss of the society and
companionship of the deceased.
Indisputably, plaintiff's action is governed by the

specific provisions of the act. I agree with the Court of

Appeals majority that

standing alone, the [wrongful death act]
mandates recovery in any amount, limited only by
the requirement that the amount be fair and
equitable, for noneconomic losses, including
those for loss of society and companionship.
Without taking into consideration the damages cap
. . . the [act] clearly and unambiguously governs
a medical-malpractice action involving death and
the accompanying request for damages. This was
clearly the Legislature's intent in enacting the
[act]. Tort-reform legislation, which included
the damages cap, did not result in any amendment
of the [act]. [Jenkins, supra at 119-120.]
In short, the only limitation intended by the

Legislature on noneconomic damages under the wrongful death

act is that the amount be fair and equitable.

The Medical Malpractice Noneconomic

Damages Cap Statute

I agree with Court of Appeals Judge Kelly that the

wrongful death act and the medical malpractice damages cap

4

statute need not be read in pari materia. The statutes

serve different purposes. The medical malpractice damages

cap serves to limit liability in a medical malpractice

action. As stated above, the wrongful death act provides

for the survival of an action once the victim dies. It

allows the estate to recover damages for the value to the

estate of the life of the deceased. While the Legislature

could have made the medical malpractice damages cap

expressly applicable to wrongful death actions, it chose

not to do so.

The wrongful death act specifically provides for

damages in actions filed in accordance with its provisions.

See MCL 600.2922(6). Just as this Court should not expand

the remedies available under the act, it should not narrow

them, absent an explicit indication that the Legislature

intended it.

If the Legislature wanted the medical malpractice

damages cap statute to apply in wrongful death actions,

some indication of that intention would be present in the

language of the wrongful death act. Furthermore, although

the Legislature was aware of the exclusive damages

provision in the wrongful death act, it made no reference

to a limitation on damages in the medical malpractice

noneconomic damages cap statute.

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 The Legislature is presumed to have knowledge of

existing laws. It is assumed to have measured the effect

of new laws on all existing laws. Walen v Dep't of

Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). It is

presumed to know that the wrongful death act provides

specifically and exclusively for damages in wrongful death

claims.

Therefore, it is significant that the Legislature

declined the opportunity to list death as an injury subject

to the damages cap in either the wrongful death act or the

medical malpractice noneconomic damages cap statute. The

inference is strong that the damages cap does not apply in

wrongful death cases arising from underlying medical

malpractice claims.

Other Legislation

The Legislature has specifically addressed death in

other legislation. In the products liability cap act, MCL

600.2946a,

a statute analogous to the damages cap, the
Legislature not only specifically addressed
death, but identified death as one of the two
injuries that results in the second-tier cap:

"In an action for product liability,
the total amount of damages for noneconomic loss
shall not exceed $280,000.00, unless the defect
in the product caused either the person's death
or permanent loss of a vital bodily function, in
which case the total amount of damages for

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 noneconomic loss shall not exceed $500,000.00."
[MCL 600.2946a(1).]
Thus, while the Legislature was clearly
aware that death is a possible injury in medical-
malpractice claims just as in products-liability
claims, it chose not to identify it as an injury
subject to the damages cap. [Jenkins, supra at
135-136 (Kelly, J., concurring).]

MCL 600.6098(1) lends support to the plaintiff's

argument. The language of this section requires a judge

presiding over an action alleging medical malpractice to

determine

if the limitation of noneconomic damages
provided for in section 1483 applies. If the
limitation applies, the court shall set aside any
amount of noneconomic damages in excess of the
amount specified in section 1483.
The Legislature's use of the word "if" in MCL

600.6098(1) suggests that the limitation on noneconomic

damages does not always apply in an "action alleging

medical malpractice." This language supports the conclusion

that the medical malpractice damages cap does not apply in

wrongful death actions.

The majority claims that this section means that the

cap is applicable only where the amount of a damage award

exceeds the damages cap. It believes that the limitation

does not apply if the jury award is less than the damages

cap amount. I disagree. The cap is applicable even in that

case. When it has not been necessary to reduce the award,

the cap is unapplied, not inapplicable.

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 The majority references cases in which, it says, this

Court has applied other statutes to the wrongful death act.

Ante at 7. See Halloran v Bhan 470 Mich ___; ___ NW2d ___

(2004); Grossman v Brown, 470 Mich ___; ___ NW2d ___

(2004). This is accurate; however, the issue was not

raised in those cases. The issue in Halloran and Grossman

was not whether the statutes mentioned were properly

applied to claims made under the wrongful death act. The

parties in those cases raised questions involving medical

malpractice expert witness's qualifications to testify. The

parties did not question whether the statutes in question

applied to the wrongful death act.

Likewise, contrary to the majority's characterization

of Solomon3 and Rogers,4 this Court did not hold "that other

statutory and common-law limitations on the amount of

damages apply to wrongful death actions." Ante at 15-16.

Again, those cases involved different issues. Rogers

involved questions of governmental immunity, attorney

misconduct, and various evidentiary claims. The only

reference to wrongful death is in the factual background of

the case. Solomon involved whether certain evidence was

3
Solomon v Shuell, 435 Mich 104; 457 NW2d 669 (1990).
4
Rogers v Detroit, 457 Mich 125; 579 NW2d 840 (1998).

8

admissible under an exception to the hearsay rule. It also

involved the application of the rescue doctrine. Again,

reference to the wrongful death nature of the case is

mentioned only in the factual background. While the Court

assumed the application of these statutes, that is a far

cry from deciding an issue raised by the parties.

Furthermore, whether the savings provision in the

wrongful death act5 applies to medical practice actions6 has

little bearing on whether the Legislature intended that the

damages cap statute applies. The wrongful death act

specifically references the relevant statute of limitations

provision of the underlying claim. MCL 600.5852; Waltz v

Wyse, 469 Mich 642, 658-659; 677 NW2d 813 (2004) (Cavanagh,

J., dissenting).

Conclusion

The Legislature made no mention in the wrongful death

act to there being a cap on damages available under it. No

other act, including MCL 600.1483, makes the medical

malpractice damages cap applicable to wrongful death

actions. I conclude that the Legislature did not intend

5
MCL 600.5852.

6
See Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004).

9

that the medical malpractice damages cap should be applied

to wrongful death actions.

Therefore, the Court of Appeals analysis and decision

regarding this issue should be affirmed.

Marilyn Kelly
Michael F. Cavanagh

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