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Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
t 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 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 post-verdict 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 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 (" he plaintiff is hemiplegic"; " he plaintiff has permanently impaired cognitive capacity"), clearly requiring that the enumerated conditions currently exist. Here, at the time of the post-verdict 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 add
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