As the first appellate-level resolution of an issue that has been brewing since 1993, the Court of Appeals has ruled that the caps on non-economic damages in medical malpractice cases are inapplicable when claims under the Wrongful Death Act are made.
The panel consisted of Judges William Murphy, Kirsten Kelly, and Jessica Cooper -- a recognizably liberal grouping.
The medical malpractice tort reform statutes passed in 1986 had imposed a cap on non-economic damages except those recoverable for certain categories of serious injuries, including death, injury to a reproductive organ, or loss of a "vital body function". In 1993, the statute was amended to adopt a two-tiered cap, with the higher level recoverable only for total loss of at least one limb caused by brain or spinal cord injury, permanently impaired cognitive capacity with serious life limitations, or damage to reproductive organ resulting in inability to procreate. The statute no longer mentioned death.
In 1995, the Legislature adopted caps on product liability claims, and used a formulation similar to that used in the 1986 medical malpractice statute, including a reference to death claims as justifying a higher cap.
Since 1993, then, the courts have had to deal with this conundrum: are death cases subject to the lower cap, to the higher cap, or to no cap at all? The most careful analysis would suggest that they are subject to the lower cap. The statutory scheme provides for the lower cap to apply to all cases, except those that meet the definition applying to the higher cap. The omission of death as a basis for the higher cap on damages when it was included in the previous formulation pretty strongly suggests the conclusion that the legislature intended that they not come under the higher cap. The 1986 statute did include death, and then in 1993 death cases were removed as a category of damages justifying the higher cap, as were a number of other very serious types of damages. There does not seem to be much room for an argument that death claims were inadvertently overlooked.
One formulation of an argument that has been advanced by plaintiffs in favor of the applicability of the higher cap deserves mention for its brashness: A dead person is, by definition, someone with a "permanently impaired cognitive capacity".
The primary basis of the Court's ruling was its claim that the tort reform statutes had not intended to disturb the measure of damages provided under the Wrongful Death Act, and it asserted that the statute's definition of "non-economic loss" implicitly excluded the damages claimed in wrongful death cases:
However, there is express language contained in §1483 that indicates that it does not apply in wrongful death actions. Noneconomic loss is defined in the statute as meaning “damages or loss due to pain, suffering, inconvenience, physical impairment, physical disfigurement, or other noneconomic loss.” MCL 600.1483(3). Although the definition references “other noneconomic loss,” it does not specifically touch on loss of society and companionship, which are unmistakenly terms associated with a wrongful death action.
This disingenuous decision demonstrates a disregard of the fact that the 1986 statute expressly covered death cases, a fact which effectively disproves the court's claimed perception of a legislative intent to keep "hands off" the damages permitted in wrongful death cases. This fact, and its decision to read out of the statute the reference to "other noneconomic loss", suggest that the entire issue will be a viable one when it reaches the Michigan Supreme Court.
Jenkins v Patel, M.D., et al. [PDF link]
Note that another panel of the Court of Appeals ruled in a case earlier this year that the higher cap would apply to a death claim arising from a serious neurologic injury to a patient who was in a coma and thus had suffered a "permanently impaired cognitive capacity with serious life limitations" during her lifetime. Shinholster v Annapolis Hospital [PDF link]
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