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Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
aintiff in the instant case is "Estate of Betty Jean Shinholster," "by" the personal representative.
Section 2922(2) does not compel the conclusion that the "plaintiff" in a wrongful death action is the personal representative. Rather, § 2922(2) simply requires that the action be brought "by" and "in the name of" that representative. The true plaintiff remains the decedent's estate. Those who are entitled to share in the proceeds of a judgment obtained in the wrongful death action are enumerated in MCL 600.2922(3), and include relatives, a spouse's children, and devisees and beneficiaries. These persons can be relevant only because they all may be entitled to a portion of the decedent's estate. Unlike a living person, an estate does not have an "age"; therefore, § 6311 cannot apply to an estate. Because § 6311 does not apply to estates, it cannot be applied in wrongful death actions.
II. CONCLUSION
I agree with the majority that the clear and unambiguous language of MCL 600.6304(1) and MCL 600.2959 requires that a jury is permitted in all medical malpractice actions to consider a plaintiff's pretreatment negligence as comparative negligence to offset a defendant's fault, provided evidence has been admitted that would allow a reasonable person to conclude such negligence was "a proximate cause" of the plaintiff's injury. I do not agree, however, that a new trial should be limited to damages only; rather, I would reverse and remand for a new trial on all issues.
Further, although I agree that the non-economic damages cap of MCL 600.1483 applies to wrongful death actions alleging medical malpractice, I do not agree that the higher tier applies in such cases. Instead, I would hold that the lower cap of MCL 600.1483(1) applies.
Finally, I would hold that MCL 600.6311, which provides that the reduction to present value does not apply to "a plaintiff who is 60 years of age or older at the time of judgment," cannot apply in wrongful death cases, because in such cases the true "plaintiff" is the estate, which is not a person and does not have an "age."
Therefore, I would reverse the decision of the Court of Appeals and remand for a new trial.
Maura D. Corrigan, Clifford W. Taylor, Robert P. Young, Jr.
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the majority that MCL 600.6311 applies in this case and join that portion of the lead opinion in full. With respect to the applicability of the medical malpractice non-economic damages cap, I concur only in the result because I remain committed to my position in Jenkins v Patel, 471 Mich ___; ___ NW2d ___ (2004). And finally, I must respectfully dissent from the majority's decision allowing the trier of fact to consider plaintiff's alleged pretreatment negligence. I agree with the trial court and the Court of Appeals, as well as the Restatement and a majority of other jurisdictions, that it would be improper for the jury to consider plaintiff's pretreatment negligence. Thus, I would affirm the decision of the Court of Appeals.
Today, a plurality of this Court makes a mockery of tort law by holding that a jury can consider a plaintiff's pretreatment negligence to determine liability. Justice Markman's approach, allowing the jury to consider plaintiff's pretreatment negligence only when determining damages, is also contrary to general tort principles. While Justice Markman claims that allowing the jury to consider a plaintiff's pretreatment negligence in a medical malpractice action is consistent with prior law, ante at 5 n 3, a close reading of this Court's precedent shows that it does not support Justice Markman's argument. M
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