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Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
ed.) 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 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 post-verdict 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.
(e) All future non-economic 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 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 " 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 pl
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