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Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
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 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 non-economic 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 non-economic 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 non-economic 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.]
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 the court. I would, therefore, take this opportunity to clarify tha
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