**_______________________________** Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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. F**  **ACTS AND P**  **ROCEDURAL H**  **ISTORY 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. S**  **TANDARD OF R**  **EVIEW 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. A**  **NALYSIS 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 non**  **** **economic 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, medical**  **** **malpractice 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 conc**  **lusion 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 two**   ** tiered 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 awardi ng 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. C**  **ONCLUSION 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 act**  **1 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 dea**  **th 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 ind ication 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.**

**5 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**

**6 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 medical**   ** malpractice 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**  Solomon 3 **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 act 5**  **applies to medical practice actions 6**  **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**

**10**