Young v. Nandi

• Decision Date: 12 June 2007
• Docket Number: Docket No. 266261.
• Citation: 740 N.W.2d 508,276 Mich. App. 67
• Court: Court of Appeal of Michigan — District of US
• Parties: Daniel A. YOUNG, as Personal Representative of the Estate of Patricia J. Young, deceased, Plaintiff-Appellee, v. Partha Shanker NANDI, M.D., Sante Bologna, M.D., and Center for Digestive Health, an assumed name for Troy Gastroenterology, P.C., Defendants-Appellants, and William Beaumont Hospital-Troy, Defendant.

740 N.W.2d 508

276 Mich. App. 67

Daniel A. YOUNG, as Personal Representative of the Estate of Patricia J. Young, deceased, Plaintiff-Appellee, v. Partha Shanker NANDI, M.D., Sante Bologna, M.D., and Center for Digestive Health, an assumed name for Troy Gastroenterology, P.C., Defendants-Appellants, and William Beaumont Hospital-Troy, Defendant.

Docket No. 266261.

Court of Appeals of Michigan.

Submitted May 8, 2007, at Detroit.

Decided June 12, 2007, at 9:10 a.m.

Released for Publication October 11, 2007.

Mark Granzotto, P.C. (by Mark Granzotto), and Marietta S. Robinson, Royal Oak, Lake Orion, for the plaintiff.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by Noreen L. Slank and Regina T. Delmastro), and Plunkett & Cooney, P.C. (by Mary Massaron Ross), Southfield, Detroit, for the defendants.

Before: MARK J. CAVANAGH, P.J., and JANSEN and BORRELLO, JJ.

PER CURIAM.

This case arises from the death of Patricia Young, who the jury concluded died as a consequence of the failures of Dr. Partha Shanker Nandi and Dr. Sante Bologna, of the Center for Digestive Health, an assumed name for Troy Gastroenterology, P.C., to properly diagnose and treat her intestinal ischemia. This conclusion is not challenged on appeal; rather, the issues on appeal relate to (1) the awards of noneconomic damages and attorney fees, (2) whether plaintiff's counsel's conduct denied defendants a fair trial, and (3) whether Apsey v. Mem. Hosp. (On Reconsideration), 266 Mich.App. 666, 702 N.W.2d 870 (2005), rev'd 477 Mich. 120, 730 N.W.2d 695 (2007), should have been given retroactive application. Only one of these issues warrants appellate relief in this appeal as of right.

First, defendants argue on appeal that the lower noneconomic damages cap provided by MCL 600.1483(1) applies in all wrongful death actions. We disagree and reject defendants' arguments in support of their position as untenable, unfair, and unintended by the Legislature, as did our Supreme Court in Shinholster v. Annapolis Hosp., 471 Mich. 540, 685 N.W.2d 275 (2004), when faced with the same argument.

Whether the higher medical malpractice noneconomic damages cap, MCL 600.1483(1), can apply to cases brought under the wrongful death act, MCL 600.2922, presents an issue of statutory construction, i.e., a question of law, that is reviewed de novo. Jenkins v. Patel, 471 Mich. 158, 162, 684 N.W.2d 346 (2004).

It is uncontested that MCL 600.1483, which imposes noneconomic damages caps, applies to wrongful death actions premised on medical malpractice claims. See Jenkins, supra at 173, 684 N.W.2d 346. But, there are two caps—one limiting damages to $280,000 and one limiting damages to $500,000. The higher limit cap only applies if certain injuries resulted from the negligence. Defendants claim that those injuries—permanent functional loss of at least one limb because of brain or spinal cord injury, or permanent impaired cognitive capacity—could not happen in a wrongful death case for three reasons. First, the injuries could never happen because an "estate" is the "plaintiff" and it cannot suffer "injuries." Second, the statute uses present tense language and, thus, requires that the injured party continue to suffer those injuries, i.e., be alive, at the time of judgment. And, third, the Legislature eliminated "death" as a cap exception when it amended § 1483.

But, defendants are stretching the limits of reason with these purported justifications for prohibiting the application of the higher cap in wrongful death actions. Our Supreme Court, albeit through several opinions, rejected all of these same or similar arguments in Shinholster, supra, and held that the higher cap may apply in medical malpractice cases. Justice MARKMAN authored the lead opinion that held that the higher cap applied in that case and, with regard to this issue, Justice WEAVER, in a separate opinion, joined the reasoning and the result of the lead opinion. See Shinholster, supra at 559-568, 685 N.W.2d 275. Justices CAVANAGH and KELLY, in a separate opinion, concurred in result only with the lead opinion with regard to this issue, in keeping with their dissenting opinion in Jenkins, supra at 180, 684 N.W.2d 346, where they opined that the Legislature did not intend for any damages cap to be applied in wrongful death cases. Chief Justice CORRIGAN, joined by Justices TAYLOR and YOUNG, in a separate opinion, dissented with regard to this issue and would have held that the higher tiered damages cap could not apply in wrongful death actions because death is not one of the enumerated exceptions to the application of the lower cap. Shinholster, supra at 582-583, 589-594, 685 N.W.2d 275.

Plurality opinions in which no majority of the participating justices agree with respect to the reasoning for the holding are not generally considered authoritative interruptions that are binding under the doctrine of stare decisis. See Negri v. Slotkin, 397 Mich. 105, 109, 244 N.W.2d 98 (1976). However, in Shinholster four justices of the Supreme Court rejected the proposition that the higher tiered damages cap could not apply in wrongful death actions—which is precisely defendants' argument. As this Court reasoned in People v. Scarborough, 189 Mich.App. 341, 344, 471 N.W.2d 567 (1991), when a similar situation arose, it would be a waste of judicial resources to disregard the Shinholster lead opinion entirely and thus we turn to it for persuasive guidance.

With regard to defendants' first claim, that the "plaintiff" in a wrongful death case for purposes of MCL 600.1483(1) is the estate, not the decedent, the lead opinion in Shinholster, with Justices CAVANAGH, WEAVER, and KELLY, in separate opinions, joining with regard to this issue, considered a very similar argument and rejected it. There the Court interpreted the term "plaintiff" in MCL 600.6311, a statute that provides an exception to the rule that future damages be reduced to gross present value if the "plaintiff" is at least 60 years old at the time of judgment. Shinholster, supra at 568-569, 685 N.W.2d 275. The Court compared other provisions of the Reversed Judicature Act, particularly the comparative fault provision of MCL 600.6306(3) (which provides for the reduction of a judgment "by an amount equal to the percentage of plaintiff's fault") and MCL 600.6305(2) (which, in the event of death, provides for "the calculation of future damages . . . based on the losses during the period of time the plaintiff would have lived but for the injury"). Shinholster, supra at 570-571, 685 N.W.2d 275. Holding that the term "plaintiff" must be considered in context, and not in a vacuum, the Court concluded that the "plaintiff" for purposes of § 6311 was the decedent, not the estate, in that wrongful death case. Id.

A similar analysis applies here. MCL 600.1483(1) specifically references the application of § 6304, the statute that requires the determination of "[t]he percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff...." MCL 600.6304(1)(b). As the lead opinion in Shinholster noted, that determination of fault results in a reduction of the total judgment under MCL 600.6306(3). Thus, the "plaintiff" to which § 6304 and § 6306(3) refer must be the decedent in the wrongful death case because neither a personal representative nor an estate would be evaluated for comparative negligence purposes in a wrongful death case. See Shinholster, supra at 570-571, 685 N.W.2d 275. It naturally follows then that the "plaintiff" to which § 1483 refers is also the decedent. In other words, considered in context, it is the decedent who is considered with respect to whether the "plaintiff" suffered a permanent functional loss of a limb as a result of brain or spinal cord injury or permanently impaired cognitive capacity. See MCL 600.1483(1). In the same way, it is the decedent who is considered in determining whether the "plaintiff" was comparatively negligent with respect to his or her fatal injuries for which a reduction of damages would be appropriate. The decedent is not considered the "plaintiff" only for comparative fault purposes. Therefore, this argument—that an estate is the only "plaintiff" in a wrongful death case—is rejected.

Defendants also claim that the use of the present tense in the statute, i.e., "[t]he plaintiff has permanently impaired cognitive capacity," means that the impairment must continue to exist at the time of judgment to warrant application of the higher cap. Again, the Shinholster lead opinion is persuasive on this issue. The lead opinion stated that the use of the present tense meant that "[a]s long as, at some point after the defendant's alleged negligence occurred and before the decedent's death, it could be said that, `as a result of the negligence of 1 or more of the defendants'" the plaintiff suffered one of the qualifying injuries, the higher damages cap tier applies. Shinholster, supra at 562, 685 N.W.2d 275. It was also noted that this interpretation of the present tense text was consistent with the Court's conclusion in Michalski v. Bar-Levav, 463 Mich. 723, 732-733, 625 N.W.2d 754 (2001), that the present-tense words used in the Handicappers Civil Rights Act, MCL 37.1101, referred to events existing during the pendency of the plaintiff's employment—the period at issue in that case. Shinholster, supra at 563, 685 N.W.2d 275.

The lead opinion in Shinholster also rejected the "present tense" argument on three more grounds, including, first, that the wrongful death act, MCL 600.2922(6), provided at that time that the deceased's estate may recover "reasonable compensation for the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death. . . ." Shinholster, supra at 564, 685 N.W.2d 275. Thus, the Legislature intended that the estate recover everything that the decedent would have been able to recover had he or she li...