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Estate of Betty Jean Shinholster v. Annapolis Hospital7/30/2004
hat plaintiff's pretreatment negligence may be considered a proximate cause of plaintiff's damages for purposes of comparative negligence, the majority abandons the long-standing principle of tort law that the defendant takes the plaintiff as he finds her. See 2 Restatement Torts, 2d,§ 461, p 502; Rawlings v. Clyde Plank & Macadamized Rd Co, 158 Mich 143, 146; 122 NW 504 (1909). As recently as 2000 this Court, including the majority, recognized and applied this principle of law. Wilkinson v. Lee, 463 Mich 388, 396; 617 NW2d 305 (2000). The patient's conduct before seeking medical treatment is merely a factor the physician should consider in treating the patient. Harding, supra at 318. Rather than retreating from such a long-established principle, I would affirm the Court of Appeals on this issue.
II.
I join in full § III(B) of the lead opinion, recognizing that the medical malpractice non-economic damages cap of MCL 600.1483 applies to a wrongful death action based on an underlying claim of medical malpractice and concluding that the higher cap of MCL 600.1483 applies when the injured person, at any time while still living and as a result of a defendant's negligent conduct, fits with the ambit of MCL 600.1483(1).
III.
I also join in full § III(C) of the lead opinion, concluding that because the term "plaintiff," as used in MCL 600.6311, refers, for purposes of a wrongful death action, to the decedent, and because Mrs. Shinholster, the decedent, was sixty-one years old at her death and at the time of judgment, the damages awarded to plaintiff should not be reduced to their present value.
IV.
Because I would hold that the plaintiff's pretreatment negligence in this medical malpractice action did not fall within MCL 600.6304's definition of "fault," and therefore could not be considered for the purposes of comparative negligence, I would affirm the Court of Appeals on all counts.
Elizabeth A. Weaver, KELLY, J.
I concur with respect to sections I, III, and IV.
Marilyn Kelly
KELLY, J. (concurring in part and dissenting in part).
I fully agree with Justice Cavanagh's opinion. In addition, I join sections I, III, and IV of Justice Weaver's opinion.
Marilyn Kelly
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