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Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
Okla Civ App, 1996); Spence v Aspen Skiing Co, 820 F Supp 542, 544 (D Colo, 1993); Van Vacter v Hierholzer, 865 SW2d 355, 359 (Mo App, 1993); Martin v Reed, 200 Ga App 775, 777; 409 SE2d 874 (1991); Jensen v Archbishop Bergan Mercy Hosp, 236 Neb 1, 15; 459 NW2d 178 (1990); Cowan v Doering, 215 NJ Super 484, 495; 522 A2d 444 (1987); Owens v. Stokoe, 115 Ill 2d 177, 183; 503 NE2d 251 (1986).
Justice Markman attempts to make a distinction between a distinct subsequent injury and an injury that would be part of the "natural and foreseeable result of the plaintiff's original negligence." Ante at 3 n 9. This distinction, however, is a distinction without a difference when examining the proper damage in a medical malpractice action. Because a tortfeasor must take a plaintiff as he finds her, the plaintiff in Justice Markman's examples would be taken as a plaintiff with a broken leg. Without the negligence of the doctor, a plaintiff with a broken leg could expect full recovery. Regardless of whether the doctor's negligence results in death or in a poorly set leg, the damage in the case is the difference between the expected full recovery and the actual result. In neither example, can the plaintiff's negligence in breaking her leg be a proximate cause of the damage.
Because the majority mischaracterizes the damage and allows the jury to consider plaintiff's pretreatment negligence, I must respectfully dissent. I refuse to take part in the judicial determination of what is and is not socially acceptable behavior. Smokers, couch potatoes, and fast food connoisseurs pick your doctors carefully because after today, no matter how negligent a doctor is in treating you, the jury will be able to consider your poor health habits when deciding whether to hold the doctor liable. I would affirm the holding of the trial court and the Court of Appeals.
Michael F. Cavanagh, Marilyn Kelly.
WEAVER, J. (concurring in part and dissenting in part).
I.
I dissent from the majority's holding that pursuant to MCL 600.6304, plaintiff's pretreatment negligence may be considered by the jury in assessing comparative negligence because it may have been a proximate cause of plaintiff's death. Ante at 2-3. I agree with Justice Cavanagh's concurring and dissenting opinion that it would be improper for the jury to consider plaintiff's pretreatment negligence to determine comparative negligence, ante at 2, and I would affirm the Court of Appeals decision on this point.
To determine the comparative negligence of the parties, MCL 600.6304 provides that the trier of fact in a tort action shall determine the percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff. MCL 600.6304(8) defines "fault" as "an act, an omission, conduct . . . that is a proximate cause of damage sustained by a party." (Emphasis added.)
As Justice Cavanagh explains, the proper focus of the statute is on the plaintiff's damage, not the plaintiff's injury, and " he plaintiff's damage in a medical malpractice action is determined by the difference between the decedent's hypothetical life without the negligence of the doctor and the actual result." Ante at 4.
Further, I would hold that the plaintiff's pretreatment negligence did not fall within MCL 600.6304's definition of "fault" for the purposes of comparative negligence. While plaintiff's pretreatment negligence caused the need for care or treatment that led to the alleged medical malpractice, the plaintiff's pretreatment negligence was not a proximate cause of plaintiff's damages.
Proximate cause, or legal cause, as it is also known, involves examining
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