_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Clifford W. Taylor 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 26, 2004 

MARGARET JENKINS, as Personal

Representative of the ESTATE OF

MATTIE HOWARD, DECEASED, 

Plaintiff-Appellee, 

v No. 123957 

JAYESH KUMAR PATEL, M.D., and

COMPREHENSIVE HEALTH SERVICES,

INC., a Michigan Corporation,

doing businsess as THE WELLNESS

PLAN, Jointly and Severally, 

Defendants-Appellants. 

BEFORE THE ENTIRE BENCH 

MARKMAN, J. 

We granted leave to appeal to consider whether the 

medical malpractice noneconomic damages cap, MCL 

600.1483(1), applies to a wrongful death action where the 

underlying claim is medical malpractice. The jury awarded 

plaintiff $10 million in noneconomic damages. The trial 

court denied defendants’ motion for remittitur or a new 

trial, concluding that the medical malpractice noneconomic 
damages cap does not apply to wrongful death actions. The 

Court of Appeals affirmed. Because we conclude that the 

medical malpractice noneconomic damages cap does apply to 

wrongful death actions where the underlying claim is 

medical malpractice, we reverse the judgment of the Court 

of Appeals and remand this case to the Court of Appeals for 

consideration of the constitutional issues raised by 

plaintiff that were not resolved by the Court of Appeals in 

light of its analysis of the statutory issue. 

I. FACTS AND PROCEDURAL HISTORY 

Plaintiff brought this wrongful death action against 

defendants, seeking to recover damages for the death of her 

mother that allegedly resulted from defendants’ medical 

malpractice. Plaintiff’s decedent began treating with 

defendant Dr. Jayesh Patel shortly after being hospitalized 

for a stroke. Plaintiff contends that Dr. Patel 

negligently managed the decedent’s renal disease and 

hypertension, which ultimately led to her death. Plaintiff 

sought damages for the loss of society and companionship 

sustained by the decedent’s seven children and seven 

siblings. The jury awarded plaintiff $10 million in 

noneconomic damages. 

Defendants filed a motion for remittitur or for a new 

trial, arguing that the medical malpractice noneconomic 

2
 
 

damages cap, MCL 600.1483(1), requires a reduction in the 

damage award, and, in the alternative, that the award is 

excessive. The trial court held that the medical 

malpractice noneconomic damages cap does not apply to 

wrongful death actions. The trial judge further held that, 

although the award is excessive, he could not determine an 

appropriate amount of damages because he was not personally 

present at the trial to hear the testimony of the witnesses 

and judge their credibility.1 Therefore, he let the jury’s 

$10 million verdict stand. In a published decision, the 

Court of Appeals affirmed the trial court’s decision that 

the medical malpractice noneconomic damages cap does not 

apply to wrongful death actions.2 The Court of Appeals, 

however, remanded the case to the trial court, holding that 

the trial court, having found the award to be excessive, 

must either set a remittitur amount or grant a new trial on 

damages only.3 One of the judges on the panel wrote a 

1

 The judge who presided over the jury trial was

subsequently appointed to a federal judicial position and

was no longer on the trial court at the time the motion for

remittitur or for a new trial was heard. 

2

 256 Mich App 112; 662 NW2d 453 (2003). 

3

 The Court of Appeals further instructed the trial

court that it could revisit its ruling concerning whether

the verdict was excessive if it acknowledged that its

(continued...) 

3
 
 

concurring opinion to emphasize her belief that the 

language of the wrongful death act precludes application of 

the medical malpractice noneconomic damages cap. We 

granted defendants’ application for leave to appeal.4 

II. STANDARD OF REVIEW 

Whether the medical malpractice noneconomic damages 

cap, MCL 600.1483(1), applies to a wrongful death action 

where the underlying claim is medical malpractice is an 

issue of statutory interpretation, which is a question of 

law that this Court reviews de novo. Morales v Auto-Owners 

Ins Co, (After Remand), 469 Mich 487, 490; 672 NW2d 849 

(2003). 

III. ANALYSIS 

MCL 600.1483, also referred to as the medical 

malpractice noneconomic damages cap, provides, in pertinent 

part: 

(1) In an action for damages alleging

medical malpractice by or against a person or

party, the total amount of damages for 

noneconomic loss recoverable by all plaintiffs,

resulting from the negligence of all defendants,

shall not exceed $280,000.00 unless, as the 

result of the negligence of 1 or more of the

defendants, 1 or more of the following exceptions 

(...continued)

previous ruling was "nondefinitive" in light of its concern

at the time that it had not been present at trial. 

4

 469 Mich 958 (2003). 

4
 
apply as determined by the court pursuant to

section 6304, in which case damages for 

noneconomic loss shall not exceed $500,000.00: 

(a) The plaintiff is hemiplegic, paraplegic,

or quadriplegic resulting in a total permanent

functional loss of 1 or more limbs caused by 1 or

more of the following: 

(i) Injury to the brain. 

(ii) Injury to the spinal cord. 

(b) The plaintiff has permanently impaired

cognitive capacity rendering him or her incapable

of making independent, responsible life decisions

and permanently incapable of independently

performing the activities of normal, daily

living. 

(c) There has been permanent loss of or

damage to a reproductive organ resulting in the

inability to procreate. 

(2) In awarding damages in an action 

alleging medical malpractice, the trier of fact

shall itemize damages into damages for economic

loss and damages for noneconomic loss. 

(3) As used in this section, “noneconomic 

loss” means damages or loss due to pain,

suffering, inconvenience, physical impairment, 

physical disfigurement, or other noneconomic 

loss. 

The wrongful death act, MCL 600.2922, provides, in 

pertinent part: 

(1) Whenever the death of a person or 

injuries resulting in death shall be caused by 

wrongful act, neglect, or fault of another, and

the act, neglect, or fault is such as would, if

death had not ensured, have entitled the party

injured to maintain an action and recover 

damages, the person who or the corporation that

would have been liable, if death had not ensued, 

5
 
shall be liable to an action for damages,

notwithstanding the death of the person injured,

and although the death was caused under 

circumstances that constitute a felony. 

(2) Every action under this section shall be

brought by, and in the name of, the personal

representative of the estate of the deceased 

person . . . . 

 * * * 

(6) In every action under this section, the

court or jury may award damages as the court or

jury shall consider fair and equitable, under all

the circumstances including reasonable medical,

hospital, funeral, and burial expenses for which

the estate is liable; 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; and damages for the loss of financial

support and the loss of the society and 

companionship of the deceased. 

There is no common-law right to recover damages for a 

wrongfully caused death. Instead, the wrongful death act 

provides the exclusive remedy under which a plaintiff may 

seek damages for a wrongfully caused death. Courtney v 

Apple, 345 Mich 223, 228; 76 NW2d 80 (1956). That does not 

mean, however, that the wrongful death act is the only act 

that is applicable in a wrongful death action. For 

instance, the medical malpractice statute of limitations, 

MCL 600.5838a, applies to wrongful death actions where the 

underlying claim is medical malpractice because “in all 

actions brought under the wrongful death statute, the 

6
 
 

 

limitations period will be governed by the provision 

applicable to the liability theory of the underlying 

wrongful act.” Hawkins v Regional Medical Laboratories, 

PC, 415 Mich 420, 436; 329 NW2d 729 (1982); Waltz v Wyse, 

469 Mich 642; 677 NW2d 813 (2004). Additionally, actions 

brought under the wrongful death act “accrue as provided by 

the statutory provisions governing the underlying liability 

theory . . . .” Hawkins, supra at 437. Accordingly, when 

the underlying claim is medical malpractice, the medical 

malpractice accrual statute, MCL 600.5838a, applies to a 

wrongful death action. Further, this Court has recently 

applied the medical malpractice notice of intent 

requirement of MCL 600.2912b, the medical malpractice 

tolling provision of MCL 600.5856(d), the medical 

malpractice affidavit of merit requirement of MCL 

600.2912d, and the medical malpractice expert witness 

qualification requirements of MCL 600.2169(1)(a) to 

wrongful death actions. Waltz, supra; Grossman v Brown, 

470 Mich __; __ NW2d __ (2004); Halloran v Bhan, 470 Mich 

__; __ NW2d __ (2004).5 

5

 The dissent is correct that neither this Court nor 

the parties in these cases addressed whether these medical

malpractice provisions apply to wrongful death actions;

their application was just assumed. Post at 7-8. 

(continued...) 

7
 
 

Clearly, the wrongful death act is not the only act 

that is pertinent in a wrongful death action. “The mere 

fact that our legislative scheme requires that suits for 

tortious conduct resulting in death be filtered through the 

so-called ‘death act’, MCL 600.2922; MSA 27A.2922, does not 

change the character of such actions except to expand the 

elements of damage available.” Hawkins, supra at 436. 

That is, a wrongful death action grounded in medical 

malpractice is a medical malpractice action in which the 

plaintiff is allowed to collect damages related to the 

death of the decedent. 

The statute at issue here, MCL 600.1483, specifically 

provides that it applies to “an action for damages alleging 

medical malpractice . . . .”6 Plaintiff’s action is clearly 

(...continued) 

See also Anthony v Forgrave, 126 Mich App 489, 493;

337 NW2d 546 (1983), in which the Court of Appeals held

that “in a wrongful death action, venue is determined

through application of the venue statutes governing

personal injury actions; focus is on the cause of action

which underlies the wrongful death claim.” 

6

 The dissent contends that "the limitation on noneconomic damages does not always apply in an ‘action 

alleging medical malpractice,’” post at 7, as indicated by

MCL 600.6098(1), which provides, “If the limitation 

applies, the court shall set aside any amount of 

noneconomic damages in excess of the amount specified in

section 1483.” [Emphasis added.] We agree that the cap

does not always apply in an action alleging medical 

(continued...) 

8
 
 

an “action for damages alleging medical malpractice 

. . . .” Section 1483(1). This fact is undisputed. 

Although the Court of Appeals recognized that “§ 1483 

applies in an action for damages alleging medical 

malpractice, and that the case before us, with respect to 

the subject matter from which the negligence arose, is such 

an action,” Jenkins v Patel, 256 Mich App 112, 122; 662 

NW2d 453 (2003), it went on to conclude that “the 

Legislature did not intend [§ 1483’s noneconomic] damages 

cap to limit those damages in a wrongful-death, medicalmalpractice action.” Id. at 125-126. It reached this 

conclusion on the basis that § 1483(3)’s definition of 

“noneconomic loss” does not specifically include losses 

related to wrongful death, such as loss of society and 

companionship. 

Section 1483(3) defines “noneconomic loss” as “damages 

or loss due to pain, suffering, inconvenience, physical 

impairment, physical disfigurement, or other noneconomic 

loss.” The wrongful death act, MCL 600.2922(6), 

(...continued)

malpractice. Instead, the cap applies only in medical

malpractice actions in which the plaintiff is awarded an

amount of noneconomic damages that exceeds the pertinent

cap. The Legislature’s use of the word “if,” however, does

not, as the dissent contends, indicate that the cap never 

applies in a wrongful death action. 

9
 
specifically provides that “the loss of the society and 

companionship of the deceased” is an available remedy in a 

wrongful death action. The Court of Appeals concluded that 

the damages referred to in § 1483(3) “relate to damages 

sustained by an individual surviving plaintiff rather than 

damages sustained by next of kin in a wrongful-death action 

. . . .” Jenkins, supra at 124. Thus, the Court of 

Appeals concluded that § 1483 is not meant to limit damages 

that a next of kin would seek for his own suffering, such 

as loss of society and companionship. 

The Court of Appeal’s reasoning is flawed, in our 

judgment, because it fails to give meaning to all the words 

of the statute and “[c]ourts must give effect to every 

word, phrase, and clause in a statute and avoid an 

interpretation that would render any part of the statute 

surplusage or nugatory.” State Farm Fire & Cas Co v Old 

Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). 

If the definition of “noneconomic loss” in § 1483(3) does 

not encompass damages sought by a next of kin under the 

wrongful death act for his own suffering, as the Court of 

Appeals concluded, then such definition also would not 

encompass such damages when sought by a next of kin of a 

plaintiff who survived the medical malpractice. If that is 

so, then the Legislature’s specific directive that § 1483 

10
 
limits the total damages recoverable by “all plaintiffs” 

means nothing. However, this language has to mean 

something. In our judgment, the “all plaintiffs” language 

means that the plaintiff who most directly suffered from 

the medical malpractice is not necessarily the only 

plaintiff in a medical malpractice action. Rather, the 

“plaintiff’s” next of kin may also be plaintiffs in a 

medical malpractice action and they may seek damages for 

the losses that they have suffered as a result of the 

medical malpractice, such as the loss of society and 

companionship. Blackwell v Citizens Ins Co of America, 457 

Mich 662 , 664 n 1; 579 NW2d 889 (1998)(a plaintiff’s 

husband’s loss of consortium claim is derivative of the 

plaintiff’s medical malpractice claim). 

Furthermore, § 1483(3)’s definition of “noneconomic 

loss” is not limited to “damages or loss due to pain, 

suffering, inconvenience, physical impairment, [and] 

physical disfigurement . . . .” Rather, § 1483(3) 

specifically includes within the definition of “noneconomic 

loss” all the things mentioned above and “other noneconomic 

loss.” Therefore, just because a noneconomic loss, such as 

loss of society, is not specifically listed under § 

1483(3), does not mean that it is not a covered noneconomic 

loss. Section 1483(2) directs the trier of fact to 

11
 
 

 

“itemize damages into damages for economic loss and damages 

for noneconomic loss.” Noneconomic damages are subject 

either to the $280,000 cap or the $500,000 cap, while 

economic damages are not subject to either of these caps.7 

Damages awarded in an action for medical malpractice can 

obviously only be economic or noneconomic. The damages 

awarded in this case for loss of society and companionship 

are clearly noneconomic damages. Rusinek v Schultz, Snyder 

& Steele Lumber Co, 411 Mich 502, 504-505; 309 NW2d 163 

(1981)(loss of consortium, which is defined as including 

loss of society and companionship, is a noneconomic loss). 

This fact is undisputed. Accordingly, we agree with 

defendants that § 1483’s definition of “noneconomic 

losses,” which includes “other noneconomic loss,” includes 

noneconomic losses not specifically listed, including those 

sought by plaintiff’s next of kin for their own pain and 

suffering. Otherwise, a plaintiff’s next of kin would not 

be able to recover for such things as loss of consortium, 

7

 Pursuant to MCL 600.1483(4), “[t]he state treasurer

shall adjust the limitation on damages for noneconomic loss

set forth in subsection (1) by an amount determined by the

state treasurer at the end of each calendar year to reflect

the cumulative annual percentage change in the consumer

price index.” The 2004 limitations are $366,000 and 

$653,500. See http://www.michigan.gov/documents/

nonecolimit101_3658_7.pdf. 

12
 
loss of society, and loss of companionship in a medical 

malpractice action, and, as discussed above, a medical 

malpractice plaintiff’s next of kin can most certainly 

recover such damages. See Blackwell, supra. 

Further support for our conclusion that the medical 

malpractice noneconomic damages cap applies to a wrongful 

death action where the underlying claim is medical 

malpractice can be found in the allocation of liability 

statute, MCL 600.6304. Section 1483(1) refers expressly to 

§ 6304, stating that if the court determines, pursuant to § 

6304, that one of the enumerated exceptions apply, then the 

$500,000 cap, rather than the $280,000 cap, is applicable. 

Section 6304 provides, in pertinent part: 

(1) In an action based on tort or another 

legal theory seeking damages for personal injury,

property damage, or wrongful death . . . the 

court, unless otherwise agreed by all parties to

the action, shall instruct the jury to answer

special interrogatories or, if there is no jury,

shall make findings indicating both of the 

following: 

(a) The total amount of each plaintiff’s

damages. 

(b) The percentage of the total fault of all

persons that contributed to the death or injury

. . . . 

* * * 

(3) The court shall determine the award of 

damages to each plaintiff in accordance with the

findings under subsection (1), subject to any 

13
 
reduction under subsection (5) . . . and shall

enter judgment against each party, including a

third-party defendant . . . . 

* * * 

(5) In an action alleging medical 

malpractice, the court shall reduce an award of

damages in excess of 1 of the limitations set

forth in section 1483 to the amount of the 

appropriate limitation set forth in section 1483.

The jury shall not be advised by the court or by

counsel for either party of the limitations set

forth in section 1483 or any other provision of

section 1483. [Emphasis added.] 

Section 6304(1), requiring the jury to allocate fault among 

all persons, expressly applies to wrongful death actions, 

because it explicitly states, “In an action based on . . . 

wrongful death . . . .” Section 6304(3) then requires the 

court to reduce the plaintiff’s award in all subject 

actions, including wrongful death actions, according to the 

jury’s allocation of fault and subject to any reduction 

required under subsection 5. As noted above, subsection 5 

is the subsection requiring the court to apply the 

noneconomic damages cap of § 1483. Thus, subsection 3 of § 

6304 incorporates the noneconomic damages cap of § 1483 

into wrongful death actions by ensuring that in any action 

subject to § 6304, expressly including wrongful death 

actions, the court will reduce the plaintiff’s verdict both 

on the basis of the allocation of fault and on the basis of 

14
 
 

 

§ 1483—the noneconomic damages cap for medical malpractice 

cases.8 

Plaintiff argues that the wrongful death act expressly 

precludes application of the medical malpractice 

noneconomic damages cap to wrongful death actions. As 

noted above, MCL 600.2922(6) provides, in pertinent part: 

In every action under this section, the 

court or jury may award damages as the court or

jury shall consider fair and equitable, under all

the circumstances including reasonable medical,

hospital, funeral, and burial expenses for which

the estate is liable; 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; and damages for the loss of financial 

8

 The 1986 version of § 1483 provided, in pertinent

part: 

(1) In an action for damages alleging 

medical malpractice against a person or party

specified in section 5838a, damages for 

noneconomic loss which exceeds $225,000.00 shall

not be awarded unless 1 or more of the following

circumstances exist: 

(a) There has been a death. 

The 1986 version of § 1483 capped noneconomic damages at

$225,000 unless one of seven exceptions, including death,

applied. Section 1483 was amended in 1993 to adopt a twotiered cap system. Under this two-tiered cap system, the

lower cap applies unless one of three exceptions, not

including death, applies. While the 1986 version of § 1483

specifically provided that the noneconcomic damages cap

does not apply to wrongful death actions, the current

version does not specifically provide that the cap does not

apply to wrongful death actions. 

15
 
 

 

support and the loss of the society and 

companionship of the deceased. 

Plaintiff argues that this provision governs damages in 

wrongful death claims, in such a manner that other 

provisions are rendered inapplicable. However, this Court 

has held that other statutory and common-law limitations on 

the amount of damages apply to wrongful death actions. For 

instance, comparative negligence principles and the 

collateral source setoff rule, MCL 600.6303(1), apply to 

wrongful death actions. Solomon v Shuell, 435 Mich 104; 

457 NW2d 669 (1990); Rogers v Detroit, 457 Mich 125; 579 

NW2d 840 (1998), overruled on other grounds by Robinson v 

Detroit, 462 Mich 439; 613 NW2d 307 (2000).9 

Contrary to plaintiff’s contention, § 1483 and § 

2922(6) are not incompatible. Notwithstanding § 1483, in 

accordance with § 2922(6), “[i]n every action under” the 

wrongful death act, “the court or jury may award damages as 

the court or jury shall consider fair and equitable,” 

including “reasonable compensation for the pain and 

suffering, while conscious, undergone by the deceased 

person during the period intervening between the time of 

9

 The dissent is correct that neither this Court nor 

the parties in these cases addressed whether these 

limitations apply to wrongful death actions; their 

application was just assumed. Post at 8. 

16
 
 

the injury and death; and damages for the loss of financial 

support and the loss of the society and companionship of 

the deceased.” Only after the court or jury has, in its 

discretion, awarded damages as it considers fair and 

equitable does the court, pursuant to § 6304(5), apply the 

noneconomic damages cap of § 1483. This is made explicitly 

clear in § 6098(1), which states: 

A judge presiding over an action alleging

medical malpractice shall review each verdict to

determine if the limitation on noneconomic 

damages provided for in section 1483 applies. If 

the limitation applies, the court shall set aside

any amount of noneconomic damages in excess of 

the amount specified in section 1483. 

Section 6304(5) similarly provides: 

In an action alleging medical malpractice,

the court shall reduce an award of damages in

excess of 1 of the limitations set forth in 

section 1483 to the amount of the appropriate

limitation set forth in section 1483. The jury

shall not be advised by the court or by counsel

for either party of the limitations set forth in

section 1483 or any other provision of section

1483. 

Although § 1483 reduces the damages awarded by the trier of 

fact, it does nothing to impinge upon the trier of fact’s 

ability to determine an amount that is “fair and 

equitable.” That is, § 1483 does not diminish the ability 

of the trier of fact to render a fair and equitable award 

of damages; it merely limits the plaintiff’s ability to 

recover the full amount awarded in cases where the cause of 

17
 
action is based upon medical malpractice and the amount 

exceeds the cap. See Phillips v Mirac, Inc, 470 Mich 415; 

__ NW2d __ (2004). 

As the Court of Appeals in Zdrojewski v Murphy, 254 

Mich App 50, 76; 657 NW2d 721 (2002), quoting Phillips v 

Mirac, Inc, 251 Mich App 586, 594; 651 NW2d 437 (2002), 

aff’d 470 Mich 415; __ NW2d _(2004), explained when it held 

that the noneconomic damages cap does not violate a 

plaintiff’s right to a jury trial, the noneconomic damages 

cap “‘does not impinge on a jury’s right to . . . 

determine[e] . . . the amount of damages . . . incurred.’” 

Instead, it “‘only limits the legal consequences of the 

jury’s finding.’” That is, “‘[o]nce the jury has reached 

its verdict, the trial judge merely enters a judgment on 

the verdict that is consistent with the law.’” Id. at 76-

77. “Plaintiff was able to try this case in front of a 

jury that rendered a verdict awarding plaintiff damages. 

Because MCL 600.6304(5) prohibits the trial court from 

informing the jury of the noneconomic damages limitation of 

MCL 600.1483, the jury rendered its damages award on the 

basis of the facts of the case, unaware of the limitation 

of the statute.” Id. at 77. Accordingly, the noneconomic 

damages cap does not violate a plaintiff’s statutory right 

18
 
 

to have the court or jury “award damages as the court or 

jury shall consider fair and equitable.” Section 2922(6). 

IV. CONCLUSION 

We conclude that the medical malpractice noneconomic 

damages cap does apply to wrongful death actions where the 

underlying claim is medical malpractice.10 Accordingly, we 

reverse the judgment of the Court of Appeals and remand 

this case to the Court of Appeals for consideration of the 

constitutional issues raised by plaintiff, which were not 

resolved by the Court of Appeals in light of its analysis 

of the statutory issue.11 

Stephen J. Markman

Maura D. Corrigan

Elizabeth A. Weaver 

Clifford W. Taylor

Robert P. Young, Jr. 

10 Because no allegation has been made that plaintiff

was hemiplegic, paraplegic, quadriplegic, or had 

permanently impaired cognitive capacity, or that there had

been permanent loss of or damage to a reproductive organ

because of defendants’ medical malpractice, we conclude

that the lower cap applies. Cf. Shinholster v Annapolis

Hosp, 471 Mich __; __ NW2d __ (2004). 

11 Because we conclude that the medical malpractice

noneconomic damages cap applies to actions filed under the

wrongful death action where the underlying claim is medical

malpractice, and because defendants have not argued that an

award so capped is excessive, noneconomic damages in this

case must be reduced in accordance with § 1483, consistent

with this opinion. 

19
 
_______________________________ 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

MARGARET JENKINS, as personal

representative of the Estate

of Mattie Howard, deceased, 

Plaintiff-Appellee, 

No. 123957 

JAYESH KUMAR PATEL, M.D., and

COMPREHENSIVE HEALTH SERVICES,

INC., a Michigan Corporation,

d/b/a THE WELLNESS PLAN,

jointly and severally, 

Defendants-Appellants. 

KELLY, J. (dissenting). 

I disagree with the majority's conclusion that the 

medical malpractice noneconomic damages cap applies to 

wrongful death actions. The Court of Appeals analysis and 

decision concerning this issue were correct and should be 

affirmed. 

Statutory Interpretation 

This Court has often repeated the proper approach to 

interpreting statutes. We recently stated: 

"The paramount rule of statutory

interpretation is that we are to effect the 

intent of the Legislature. Tryc v Michigan

Veterans' Facility, 451 Mich 129, 135; 545 NW2d

642 (1996). To do so, we begin with the statute's 
 

language. If the statute’s language is clear and

unambiguous, we assume that the Legislature

intended its plain meaning and we enforce the

statute as written. People v Stone, 463 Mich

558, 562; 621 NW2d 702 (2001). In reviewing the

statute's language, every word should be given

meaning, and we should avoid a construction that

would render any part of the statute surplusage

or nugatory. Altman v Meridian Twp, 439 Mich 623,

635; 487 NW2d 155 (1992)." [Omelenchuk v City of 

Warren, 466 Mich 524, 528; 647 NW2d 493 (2002),

quoting Wickens v Oakwood Healthcare Sys, 465

Mich 53, 60; 631 NW2d 686 (2001).]

The Wrongful Death Act 

The wrongful death act1

 is the exclusive remedy in 

wrongful death cases. Courtney v Apple, 345 Mich 223, 228; 

76 NW2d 80 (1956). The Court of Appeals correctly reasoned 

that the medical malpractice noneconomic damages cap found 

in MCL 600.1483 does not apply to actions brought under the 

act. Jenkins v Patel, 256 Mich App 112; 662 NW2d 453 

(2003). Furthermore, the Court of Appeals concurring 

opinion of Judge Kelly underscores that a plain language 

reading of the act precludes the application of the MCL 

600.1483 cap. 

The wrongful death act was passed to ensure the 

preservation of claims that, at common law, would have 

terminated with the death of the victim or the tortfeasor. 

Hawkins v Regional Medical Laboratories, PC, 415 Mich 420, 

1

 MCL 600.2922. 

2
 
 

428-429; 329 NW2d 729 (1982). To ensure the survival of a 

claim, a wrongful death claim must be filed in conformity 

with the provisions of the act. 

An injured plaintiff may file suit under other 

statutory provisions. However, if he dies in the course of 

litigation, to recover damages for the death, his estate 

must file a claim under the wrongful death act. MCL 

600.2921. The act contains no cap on the damages available. 

See MCL 600.2922. It was not amended by tort reform 

legislation.2 

In this case, the decedent's estate sought damages for 

losses sustained by the decedent's seven children and seven 

siblings. A malpractice action brought on behalf of the 

decedent had she been alive would not have survived her. 

Plaintiff had no alternative but to file suit under the 

wrongful death act. 

The act contains the substance, procedures, and the 

measure of damages in an action brought against one who has 

caused the death of another. 

2

 The most recent amendment to the wrongful death act

occurred in 2000. This amendment made modifications to the 

statute in conformity with the Estates and Protected 

Individuals Code. MCL 700.1101 et seq. Before that, the

statute was amended in 1985. It was not amended in 1995,

when tort reform legislation was passed. 

3
 
MCL 600.2922(6) provides: 

In every action under this section, the

court or jury may award damages as the court or

jury shall consider fair and equitable, under all

the circumstances including reasonable medical,

hospital, funeral, and burial expenses for which

the estate is liable; 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; and damages for the loss of financial

support and the loss of the society and 

companionship of the deceased.

Indisputably, plaintiff's action is governed by the 

specific provisions of the act. I agree with the Court of 

Appeals majority that 

standing alone, the [wrongful death act]

mandates recovery in any amount, limited only by

the requirement that the amount be fair and 

equitable, for noneconomic losses, including

those for loss of society and companionship.

Without taking into consideration the damages cap

. . . the [act] clearly and unambiguously governs

a medical-malpractice action involving death and

the accompanying request for damages. This was

clearly the Legislature's intent in enacting the

[act]. Tort-reform legislation, which included 

the damages cap, did not result in any amendment

of the [act]. [Jenkins, supra at 119-120.]

In short, the only limitation intended by the 

Legislature on noneconomic damages under the wrongful death 

act is that the amount be fair and equitable. 

The Medical Malpractice Noneconomic 

Damages Cap Statute 

I agree with Court of Appeals Judge Kelly that the 

wrongful death act and the medical malpractice damages cap 

4
 
statute need not be read in pari materia. The statutes 

serve different purposes. The medical malpractice damages 

cap serves to limit liability in a medical malpractice 

action. As stated above, the wrongful death act provides 

for the survival of an action once the victim dies. It 

allows the estate to recover damages for the value to the 

estate of the life of the deceased. While the Legislature 

could have made the medical malpractice damages cap 

expressly applicable to wrongful death actions, it chose 

not to do so. 

The wrongful death act specifically provides for 

damages in actions filed in accordance with its provisions. 

See MCL 600.2922(6). Just as this Court should not expand 

the remedies available under the act, it should not narrow 

them, absent an explicit indication that the Legislature 

intended it. 

If the Legislature wanted the medical malpractice 

damages cap statute to apply in wrongful death actions, 

some indication of that intention would be present in the 

language of the wrongful death act. Furthermore, although 

the Legislature was aware of the exclusive damages 

provision in the wrongful death act, it made no reference 

to a limitation on damages in the medical malpractice 

noneconomic damages cap statute. 

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The Legislature is presumed to have knowledge of 

existing laws. It is assumed to have measured the effect 

of new laws on all existing laws. Walen v Dep't of 

Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). It is 

presumed to know that the wrongful death act provides 

specifically and exclusively for damages in wrongful death 

claims. 

Therefore, it is significant that the Legislature 

declined the opportunity to list death as an injury subject 

to the damages cap in either the wrongful death act or the 

medical malpractice noneconomic damages cap statute. The 

inference is strong that the damages cap does not apply in 

wrongful death cases arising from underlying medical 

malpractice claims. 

Other Legislation 

The Legislature has specifically addressed death in 

other legislation. In the products liability cap act, MCL 

600.2946a, 

a statute analogous to the damages cap, the 

Legislature not only specifically addressed 

death, but identified death as one of the two

injuries that results in the second-tier cap: 

"In an action for product liability,

the total amount of damages for noneconomic loss

shall not exceed $280,000.00, unless the defect

in the product caused either the person's death

or permanent loss of a vital bodily function, in

which case the total amount of damages for 

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noneconomic loss shall not exceed $500,000.00."

[MCL 600.2946a(1).]

Thus, while the Legislature was clearly

aware that death is a possible injury in medicalmalpractice claims just as in products-liability

claims, it chose not to identify it as an injury

subject to the damages cap. [Jenkins, supra at 

135-136 (Kelly, J., concurring).] 

MCL 600.6098(1) lends support to the plaintiff's 

argument. The language of this section requires a judge 

presiding over an action alleging medical malpractice to 

determine 

if the limitation of noneconomic damages

provided for in section 1483 applies. If the

limitation applies, the court shall set aside any

amount of noneconomic damages in excess of the 

amount specified in section 1483.

The Legislature's use of the word "if" in MCL 

600.6098(1) suggests that the limitation on noneconomic 

damages does not always apply in an "action alleging 

medical malpractice." This language supports the conclusion 

that the medical malpractice damages cap does not apply in 

wrongful death actions. 

The majority claims that this section means that the 

cap is applicable only where the amount of a damage award 

exceeds the damages cap. It believes that the limitation 

does not apply if the jury award is less than the damages 

cap amount. I disagree. The cap is applicable even in that 

case. When it has not been necessary to reduce the award, 

the cap is unapplied, not inapplicable. 

7
 
 

The majority references cases in which, it says, this 

Court has applied other statutes to the wrongful death act. 

Ante at 7. See Halloran v Bhan 470 Mich ___; ___ NW2d ___ 

(2004); Grossman v Brown, 470 Mich ___; ___ NW2d ___ 

(2004). This is accurate; however, the issue was not 

raised in those cases. The issue in Halloran and Grossman 

was not whether the statutes mentioned were properly 

applied to claims made under the wrongful death act. The 

parties in those cases raised questions involving medical 

malpractice expert witness's qualifications to testify. The 

parties did not question whether the statutes in question 

applied to the wrongful death act. 

Likewise, contrary to the majority's characterization 

of Solomon3 and Rogers,4 this Court did not hold "that other 

statutory and common-law limitations on the amount of 

damages apply to wrongful death actions." Ante at 15-16. 

Again, those cases involved different issues. Rogers 

involved questions of governmental immunity, attorney 

misconduct, and various evidentiary claims. The only 

reference to wrongful death is in the factual background of 

the case. Solomon involved whether certain evidence was 

3 Solomon v Shuell, 435 Mich 104; 457 NW2d 669 (1990). 

4 Rogers v Detroit, 457 Mich 125; 579 NW2d 840 (1998). 

8
 
 

admissible under an exception to the hearsay rule. It also 

involved the application of the rescue doctrine. Again, 

reference to the wrongful death nature of the case is 

mentioned only in the factual background. While the Court 

assumed the application of these statutes, that is a far 

cry from deciding an issue raised by the parties. 

Furthermore, whether the savings provision in the 

wrongful death act5 applies to medical practice actions6 has 

little bearing on whether the Legislature intended that the 

damages cap statute applies. The wrongful death act 

specifically references the relevant statute of limitations 

provision of the underlying claim. MCL 600.5852; Waltz v 

Wyse, 469 Mich 642, 658-659; 677 NW2d 813 (2004) (Cavanagh, 

J., dissenting). 

Conclusion 

The Legislature made no mention in the wrongful death 

act to there being a cap on damages available under it. No 

other act, including MCL 600.1483, makes the medical 

malpractice damages cap applicable to wrongful death 

actions. I conclude that the Legislature did not intend 

5

 MCL 600.5852. 

6

 See Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). 

9
 
that the medical malpractice damages cap should be applied 

to wrongful death actions. 

Therefore, the Court of Appeals analysis and decision 

regarding this issue should be affirmed. 

Marilyn Kelly

Michael F. Cavanagh 

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