                             STATE OF MICHIGAN

                             COURT OF APPEALS



CHELSIE BARKER, A Minor, by her Conservator                       UNPUBLISHED
HOWARD LINDEN,                                                    December 8, 2015

                Plaintiff-Appellee,

v                                                                 No. 321857
                                                                  Wayne Circuit Court
HUTZEL WOMEN’S HOSPITAL,                                          LC No. 07-729813-NH

                Defendant-Appellant,
and

DETROIT MEDICAL CENTER/WAYNE STATE
UNIVERSITY,1

                Defendant.


Before: SAWYER, P.J., and K. F. KELLY and HOOD, JJ.

PER CURIAM.

      Defendant, Hutzel Women’s Hospital, appeals by leave granted an order denying its
motion for setoff in this medical malpractice action brought by plaintiff, minor Chelsie Barker.
We reverse.

                      I. BASIC FACTS AND PROCEDURAL HISTORY2

       In December of 1998, Chantrienes Barker, who was 36-weeks pregnant, was housed in
the Wayne County Jail awaiting trial. On December 2, 1998, at 3:00 a.m., Barker experienced
some abdominal discomfort and notified jail staff. She was advised that she had a regularly
scheduled prenatal appointment later that morning. Barker agreed that she could wait until her
appointment. She fell back to sleep and was annoyed when jail staff woke her to get ready for


1
    DMC/Wayne State was dismissed before trial.
2
  The voluminous record in this case includes, at least until now, 23 lower court files and
thousands of pages of deposition and trial testimony. However, because the issue before us is
primarily a legal one, we will not provide a lengthy recitation of the facts and evidence.


                                              -1-
the appointment at defendant’s facility. Records from the appointment indicated that Barker’s
cervix was closed and she was sent back to the jail.

        Around dinnertime that same day, Barker did not feel well and notified jail personnel.
Barker was taken to the jail’s medical clinic where a physician noted that her cervix was now
open and diagnosed her with preterm labor. Barker was taken back to defendant’s facility at
9:30 p.m. where she was monitored for approximately two and a half hours. Records revealed
that, upon initial exam, Barker was dilated to two centimeters, which did not change in the time
she was there. Barker also experienced irregular contractions. Hospital personnel found the fetal
monitoring strip to be reassuring and determined that, because there was no cervical change and
no regular uterine contractions, Barker was not in active labor. She was sent back to jail at
approximately 11:30 p.m., with standard instructions to return to the hospital if her contractions
became more frequent, if her water broke, or if she began to bleed.

        Shortly after her return to the jail, Barker’s water broke and her labor pains intensified.
The emergency call buttons in the cells did not work and, when neither Barker nor her cellmate
could get the jail employees’ attention, the entire cellblock began screaming and banging on
toilets and cell bars on Barker’s behalf. Once summoned, jail personnel told Barker to clean
herself up and get dressed to go to the hospital. This, despite the fact that Barker’s cellmate
could observe the baby’s head crowning. Barker was pushed into a wheelchair and taken to the
hospital’s medical clinic.      Paramedics arrived shortly thereafter.        Within minutes, at
approximately 2:00 a.m. on December 3, 1998, plaintiff was delivered. Plaintiff was not
breathing. EMS transported Barker and plaintiff to defendant hospital. Plaintiff had no
respirations or heart rate when she arrived at the hospital. As a result of the distress and lack of
medical care during labor and delivery, plaintiff has mental retardation and cerebral palsy.

        Plaintiff filed a federal lawsuit against Wayne County and individual Wayne County
employees in January of 2006, alleging an infringement of constitutional rights under 42 USC §
1983 and 1988 (federal claim) and gross negligence (state claim). The federal district court
judge declined to exercise supplemental jurisdiction over plaintiff’s state claim, dismissing the
state claim without prejudice and retaining plaintiff’s federal claim. Havard ex rel Barker v Co
of Wayne, No. CIV. 06-10449, 2006 WL 305723, at *1 (ED Mich, 2006).

       Plaintiff filed a separate complaint in the circuit court against Wayne County and
individual Wayne County Jail personnel and nurses in 2006 (WCCC Docket No. 06-614793-
NO), alleging a single count: gross negligence, intentional, willful, reckless and wanton
misconduct. Plaintiff later filed the instant suit in Wayne Circuit Court alleging medical
malpractice against defendant and several individual healthcare providers.




                                                -2-
       In the federal case, the federal district court judge denied the Wayne County defendants’
motion for judgment on the pleadings.3 It noted:

               In the present case, the complaint alleges facts that could be construed to
       constitute deliberate indifference to Chelsie’s serious medical needs. The
       complaint alleges that the infant’s mother was in active labor, crying out for help,
       to the knowledge of the defendants, and was left by the defendants in her cell for
       two hours; that the paramedics did not arrive until the infant was being delivered
       and did not have the equipment to resuscitate the child when she was delivered;
       and that all of this resulted in severe injuries to the infant. These facts establish
       both the objective and subjective components of the test. Thus, the allegations
       establish a violation of a constitutional right.

                                                 ***

               Here, a reasonable person in the position of the defendants would have
       understood the risk that an infant born in the Wayne County Jail away from the
       attention of medical personnel would have serious medical needs, and should
       have anticipated those needs. For these reasons, the Court finds that the
       defendants are not entitled to qualified immunity at this stage of the proceedings.
       [Havard v Puntuer, 600 F Supp 2d 845, 859-860 (ED Mich 2009).]

In affirming the federal court’s ruling, the Sixth Circuit also noted:

               Despite their knowledge that Chantrienes Barker was at least seven
       months pregnant, that as of 3:00 a.m. on December 2 she was complaining of
       labor pains, that after 9:30 p.m. on December 2 she was dilated at 2 centimeters,
       and that at 1:30 a.m. on December 3 she was having contraction[s], and
       specifically told Defendants that the baby was “coming out,” and that the Wayne
       County Jail was wholly unequipped to handle the delivery of a baby, Defendants
       did not take her back to Hutzel Hospital but merely called EMS instead.
       Moreover, Defendants did nothing in the twenty-seven minutes it took for EMS to
       arrive. Rather than rushing Chantrienes back to the hospital, Defendants simply
       waited for another entity which was not equipped to handle childbirth (much less
       a child born cyanotic). The subjective component of deliberate indifference is
       satisfied.

                                                 ***

              In sum, we conclude that Chelsie stated a cognizable constitutional claim
       based on Defendants’ deliberate indifference to her serious medical needs.


3
  Defendants argued, inter alia, that Chelsie was a fetus and not a “person” within the meaning of
the Fourteenth Amendment, US Const Amend XIV, and that the jail personnel were entitled to
qualified immunity.


                                                 -3-
                                                ***

              This case presents a situation where the medical need was blatantly
       obvious and the medical risks were great. It takes very little foresight to anticipate
       that a baby will appear soon after labor begins. Holding that Defendants were
       required to respond to that medical need does not impose a duty on them beyond
       what the law already clearly establishes: prison officials cannot deliberately
       ignore the obvious and serious medical needs of those within—or imminently to
       be within—their custody. [Havard v Wayne Co, 436 Fed Appx 451, 455-456 (CA
       6 2011).]

        In December 2012, plaintiff and Wayne County settled the state and federal lawsuits for
$8 million. The settlement provides, in relevant part:

                                             ORDER

              NOW THEREFORE, IT IS HEREBY ORDERED that the settlement
       proposed by the parties, and provided to this Court is hereby approved.

              IT IS FURTHER ORDERED the settlement is against Defendant
       CHARTER COUNTY OF WAYNE (a/k/a THE COUNTY OF WAYNE,
       WAYNE COUNTY, THE WAYNE COUNTY COMMISSION and/or WAYNE
       COUNTY JAIL) only for an alleged Monell [v New York City Dep't of Social
       Services, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978)] violation and any
       other construed allegation(s) against the CHARTER COUNTY OF WAYNE
       (a/k/a THE COUNTY OF WAYNE, WAYNE COUNTY, THE WAYNE
       COUNTY COMMISSION and/or WAYNE COUNTY JAIL are dismissed as
       well.

              IT IS FURTHER ORDERED that the Plaintiff shall dismiss with
       prejudice the individual Defendants (Deputy Diane Christensen, Deputy John
       Primeau, Deputy K. Cline, Sergeant Arney, Nurse Dothard, Nurse Peoples, Nurse
       Simpson, and Christine Frazier, R.N.).

               IT IS FURTHER ORDERED the individual Defendants (Deputy Diane
       Christensen, Deputy John Primeau, Deputy K. Cline, Sergeant Arney, Nurse
       Dothard, Nurse Peoples, Nurse Simpson, and Christine Frazier, R.N.) and
       Defendant Wayne County will be dismissed with prejudice in the Wayne County
       Circuit case (Case No. 07-729813-NH) in exchange for a dismissal of the Appeal
       (Case No. 301222).

       In the state action, defendant had filed notices of nonparty fault, claiming that the actions
of the Wayne County defendants and the emergency medical technicians were the actual
proximate cause of plaintiff’s injuries. The individual defendants were dismissed from the
action. The case against defendant, only, went to trial before a jury in March 2014. Plaintiff
argued that defendant was negligent in failing to recognize that Barker was in active preterm
labor and in discharging Barker when she was nearing delivery. Plaintiff conceded that her

                                                -4-
injuries occurred as a result of a hypoxic-ischemic encephalopathy, meaning that plaintiff was
deprived of oxygen and blood flow during labor and delivery, and that the delivery occurred at
the jail. Nevertheless, plaintiff argued that defendant placed her in danger when it sent Barker
back to jail.

         The jury found in favor of plaintiff, apportioning fault as follows: 60 percent attributed
to defendant, 30 percent attributed to the jailhouse nurse who initially responded to Barker’s jail
cell, five percent attributed to the jail deputy who failed to summon help in a timely manner, and
five percent attributed to the jailhouse nurse who watched Barker in the jail’s medical clinic
while waiting for emergency personnel. As a result of that verdict, plaintiff submitted a
proposed judgment of over $6.1 million and also requested case evaluation sanctions.

        In response, defendant moved for a setoff, arguing that plaintiff asserted successive
negligent acts by the Wayne County defendants and the negligence produced a single, indivisible
injury. Defendant pointed out that the Wayne County defendants previously settled the action,
including the tort claims against the individual jail personnel in state court. Defendant argued
that plaintiff is entitled to only one recovery for the single injury. Therefore, defendant
contended that it was entitled to common law setoff because it was considered jointly and
severally liable for the injury under the law. Where plaintiff settled both her state tort claims, not
only her federal claims under Monell4 she is permitted only one recovery for a single, indivisible
injury.

        Plaintiff responded that she settled only her Monell violation with Wayne County.
Monell claims by their nature are not joint and several; each defendant must be personally
involved in the alleged unconstitutional activity. Plaintiff pointed out that Wayne County was
never a codefendant in the instant malpractice case in state court, and that the federal court case
did not involve medical malpractice. According to plaintiff, Wayne County was never jointly
liable for damages attributable to defendant Hutzel.

       At the April 24, 2014 hearing on defendant’s motion for a setoff, the trial court noted:

             We can have this great intellectual conversation for a long time. And
       somebody, and, I better bite my tongue, about where it’s going from here, but
       somebody else is going to decide this case I’m sure somewhere along the line.

              Look, I read the statute differently than you do. I think if a plaintiff is
       determined to be without fault, under subsection one or two, the liability of the
       defendant is joint and several, whether or not the defendant is a person, or
       whether or not the defendant is an entity under 5831. I read it to mean that under
       those circumstances, where the, where it’s entirely a medical malpractice case,



4
  In Monell, the United States Supreme Court held that municipalities are not wholly immune
from suit under 42 USC 1983 and that a local government unit may be liable when the execution
of its policy or custom inflicts the injury.


                                                 -5-
       and that there’s multiple defendants and they’re either entities or individuals, that
       there is a set off.

               In this case, we have someone outside the scope of medical malpractice
       and based on my, probably inartfully drafted hypothetical question here,[5] and
       given the concepts and the goal of not overpaying somebody, but I don’t think it’s
       necessary, it necessarily means that you should under pay them for a judgment
       and taking cap setoffs against another verdict, I think is, is, not contemplated in a
       verdict in the case of this nature.

               So for those reasons, I’m going to deny the motion to apply the set off in
       this case.

The trial court entered a judgment against defendant on May 1, 2014, along with a separate order
denying setoff.

        Defendant filed its emergency application for leave to appeal on May 20, 2014. Plaintiff
filed a motion to dismiss, arguing that defendant had not shown that it is entitled to interlocutory
appellate intervention. We granted defendant’s application for leave to appeal and denied
plaintiff’s motion to dismiss. Barker v Hutzel Women’s Hospital, unpublished order of the Court
of Appeals, entered July 22, 2014 (Docket No. 321857). We also granted plaintiff’s motion to
stay, which prevented the trial court from considering and deciding defendant’s motion for
judgment notwithstanding the verdict, plaintiff’s motion for additur, and plaintiff’s motion for
case evaluation sanctions. Barker v Hutzel Women’s Hospital, unpublished order of the Court of
Appeals, entered August 18, 2014 (Docket No. 321857) recon den Barker v Hutzel Women’s
Hospital, unpublished order of the Court of Appeals, entered August 27, 2014 (Docket No.
321857), lv den Linden v Hutzel Women’s Hospital, 497 Mich 871 (2014).

                                          II. ANALYSIS

        Defendant argues common-law setoff applies in this medical malpractice action where
joint and several liability exists for plaintiff’s single indivisible injury. Defendant maintains that
the successive actions of the Wayne County defendants produced plaintiff’s brain injury and that
all defendants are considered jointly and severally liable to plaintiff. Defendant states that,
absent a setoff, plaintiff will be compensated twice for her injury. We agree.

                                  A. STANDARD OF REVIEW



5
 The trial court had asked defense counsel this question: “A person injures their right leg. They
go to a hospital. The doctor cuts off the left leg. The doctor is an independent doctor. Who is
uninsured. The auto company has a 3 million-dollar policy. 2 million of it is for pain and
suffering. 1 million of it for economic damages. What’s your verdict? . . . Does the auto
company get the set off on the verdict?” Counsel answered affirmatively “because there’s a
medical malpractice claim in there.”


                                                 -6-
        “Whether the jury award in this case is subject to a setoff for the earlier settlement of a
codefendant is a purely legal question that is reviewed de novo by this Court. Questions of
statutory interpretation are also reviewed de novo.” Kaiser v Allen, 480 Mich 31, 35; 746 NW 2d
92 (2008) (internal citation omitted).

       When interpreting a statute, we follow the established rules of statutory
       construction, the foremost of which is to ascertain and give effect to the intent of
       the Legislature. We begin this analysis by examining the language of the statute
       itself, as this is the most reliable evidence of that intent. If the language of a
       statute is clear and unambiguous, we presume that the Legislature intended the
       meaning clearly expressed. Accordingly, the statute must be enforced as written
       and no further judicial construction is permitted. [Gardner v Dep’t of Treasury,
       498 Mich 1, 5-6; 869 NW2d 199 (2015) (internal footnotes omitted).]

   B. THE LAW ON JOINT AND SEVERAL LIABILITY IN MEDICAL MALPRACTICE
                               ACTIONS

       Prior to its amendment in 1995, MCL 600.2925d provided:

       When a release or a covenant not to sue or not to enforce a judgment is given in
       good faith to 1 or 2 or more persons liable in tort for the same injury or the same
       wrongful death:

       (a) It does not discharge any of the other tort-feasors from liability for the injury
       or wrongful death unless its terms so provide.

       (b) It reduces the claim against the other tort-feasors to the extent of any amount
       stipulated by the release or the covenant or to the extent of the amount of the
       consideration paid for it, whichever amount is the greater.

       (c) It discharges the tort-feasor to whom it is given from all liability for
       contribution to any other tort-feasor.

MCL 600.2925d(b) codified the common-law setoff rule. Velez v Tuma, 492 Mich 1, 11; 821
NW2d 432 (2012); Markley v Oak Health Care Investors of Coldwater, Inc, 255 Mich App 245,
255; 660 NW2d 344 (2003). However, the section was deleted as part of the 1995 tort reform
legislation “because the tort reform legislation, for the most part, abolished joint and several
liability in favor of allocation of fault or several liability.” Markley, 255 Mich App at 255.

        MCL 600.2956 now provides, in relevant part: “Except as provided in section 6304, in an
action based on tort or another legal theory seeking damages for personal injury, property
damage, or wrongful death, the liability of each defendant for damages is several only and is not
joint.” This change reflected the legislature’s desire to enact “substantive changes to the law of
torts by altering the balance of two competing principles: the principle that every person injured
by another person or persons has the right to be fully compensated for the harm, and the principle
that those who cause a particular harm should only be responsible for his or her share in
producing the harm.” Taylor v Michigan Petroleum Technologies, Inc, 307 Mich App 189, 196;


                                                -7-
859 NW2d 715 (2014). However, under MCL 600.6304(6), medical malpractice cases are an
exception:

       (6) If an action includes a medical malpractice claim against a person or entity
       described in section 5838a(1)[6], 1 of the following applies:

       (a) If the plaintiff is determined to be without fault under subsections (1) and (2),
       the liability of each defendant is joint and several, whether or not the defendant is
       a person or entity described in section 5838a(1). [MCL 600.6304(1)-(6) (internal
       footnotes omitted).]

        Case law explains how common-law setoff has been affected by tort reform. In Markley
v Oak Health Care Investors of Coldwater (Oak Health), the plaintiff’s decedent was
misdiagnosed at Community Health Center, resulting in a large bowel resection and leg
amputation. She was later released to go home, but was ultimately moved to a nursing home run
by Oak Health. A nurse practitioner at Oak Health caused the decedent to go into respiratory
distress and she died. Markley, 255 Mich App at 247-248. The plaintiff sued Community
Health for wrongful death and ultimately settled. However, before the settlement was reached,
the plaintiff also sued Oak Health for wrongful death. Oak Health failed to answer and the
plaintiff was granted partial summary disposition. The only issue before the jury was the amount
of the plaintiff’s damages. Id. at 248. The trial court declined Oak Health’s request for a setoff,
finding that the common-law right to a setoff had been abrogated by the 1995 tort reform. Id. at
249.

        In reversing the trial court, our Court in Markley expressly held that the common-law rule
of setoff survived the 1995 tort reform legislation in situations where joint and several liability
applied. Id. at 256-257. We explained:

                Under the current statutory scheme, MCL 600.2956 abolished joint
       liability in most circumstances. However, joint and several liability still exists in
       medical malpractice cases where the plaintiff is without fault, such as the present
       case.

              Under established principles of joint and several liability, where the
       negligence of two or more persons produces a single, indivisible injury, the


6
  MCL 600.5838a(1) provides: “For purposes of this act, a claim based on the medical
malpractice of a person or entity who is or who holds himself or herself out to be a licensed
health care professional, licensed health facility or agency, or an employee or agent of a licensed
health facility or agency who is engaging in or otherwise assisting in medical care and treatment,
whether or not the licensed health care professional, licensed health facility or agency, or their
employee or agent is engaged in the practice of the health profession in a sole proprietorship,
partnership, professional corporation, or other business entity, accrues at the time of the act or
omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff
discovers or otherwise has knowledge of the claim.”


                                                -8-
       tortfeasors are jointly and severally liable despite there being no common duty,
       common design, or concert of action. Here, with regard to wrongful death,
       Community and [Oak Health], through successive negligent acts, produced a
       single, indivisible injury, i.e., the death of plaintiff’s decedent. Although plaintiff
       filed separate lawsuits, Community and defendants are in theory jointly and
       severally liable for wrongful death, and we shall treat them as such, otherwise a
       plaintiff in a similar situation could avoid the effect of our ruling today by simply
       suing joint tortfeasors in separate actions. We shall effectively treat defendants as
       if they had been sued jointly with Community by plaintiff in a single action. [Id.
       at 251-52 (internal citations and footnote omitted).]

The result is that plaintiff would have the right to recover the full amount from Oak Health, even
if it meant that Oak Health had to pay more than its fair share. Id. at 253.

        In finding that the common-law rule of setoff remained intact, the Markley Court
affirmed the principle that a plaintiff is entitled to only one recovery for a single injury, even
when there is joint and several liability and even when a defendant is forced to pay more than its
fair share. Id. at 250-251.

       [W]e conclude that the Legislature did not intend to allow recovery greater than
       the actual loss in joint and several liability cases when it deleted the relevant
       portion of § 2925d, but instead intended that common-law principles limiting a
       recovery to the actual loss would remain intact.

                Here, a jury determined that plaintiff was entitled to $300,000 in total
       damages for wrongful death; however, plaintiff already received $220,000 for
       wrongful death. Without reduction of the jury verdict, plaintiff receives $520,000
       in compensation for a $300,000 harm. If we were to allow such a recovery, we
       would defeat the principle underlying common-law setoff, that being that a
       plaintiff can have but one recovery for an injury. We find that the principle of one
       recovery and the common-law rule of setoff, in the context of joint and several
       liability cases, continue to be the law in Michigan. [Id. at 257 (internal footnote
       omitted).]

        Our Supreme Court affirmed Markley in Velez v Tuma. In Velez, the plaintiff sued two
hospitals and other healthcare providers, alleging that their combined medical malpractice
resulted in the amputation of her leg. The hospitals settled and the complaint was dismissed
without prejudice. The plaintiff then filed a separate suit against one of the doctors and the
matter went to jury, resulting in a significant verdict in the plaintiff’s favor. The trial court
declined the defendant’s request to apply the noneconomic damages cap to the jury’s verdict and
then subtract the codefendants’ settlement as setoff from the final judgment; instead, it applied
the setoff to the jury’s uncapped award. Velez, 492 Mich at 6-7.

        Like the Markley Court, the Velez Court concluded that tort reform did not do away with
the common law setoff rule. Id. at 16. It explained that, in general, “[b]ecause a system of
several liability already incorporates the fault of all tortfeasors in establishing every individual
tortfeasor’s proportion of fault, there is no danger that the plaintiff will be overcompensated for

                                                -9-
the injury by the failure to set off the amount of another tortfeasor’s settlement.” Id. at 12. By
specifically retaining joint and several liability in the context of medical malpractice claims, the
legislature clearly intended to retain the common law setoff rule. Id. at 13. The Court explained:

               Inherent in the meaning of joint and several liability is the concept that a
       plaintiff’s recovery is limited to one compensation for the single injury. Because
       in some instances a jointly and severally liable tortfeasor settles before trial, the
       common-law setoff rule is necessary to ensure that the plaintiff does not recover
       more than a single recovery for the single injury. The common-law setoff rule
       entitles the remaining tortfeasors, who are still liable for the entire injury, to set
       off the amount of the cotortfeasor’s settlement from any verdict rendered against
       them. By reiterating that liability in most medical malpractice cases is joint and
       several, the Legislature thus retained the common-law setoff rule. When
       understood in this way, the purpose of the Legislature’s repeal of the statutory
       setoff was not to abrogate the common-law setoff rule, but to acknowledge that a
       setoff does not apply in actions that involve several liability only. [Id. at 13-14
       (internal footnotes omitted).]

        The Velez Court further stressed the need to restrict a plaintiff’s ultimate recovery to
comply with what the law permitted. Therefore, any setoff must be applied to ensure “that the
plaintiff does not recover an amount more than that which the Legislature has fixed by statute.”
Id. at 20. To that end, a trial court must “first apply to the jury’s verdict the noneconomic
damages cap, as well as any other statutorily required adjustments, before reducing the award by
the amount of the codefendant’s settlement.” Id. at 23. The Court concluded that “[b]ecause
plaintiff has already received partial compensation for that injury, application of the common-
law setoff rule requires that codefendants’ settlement be subtracted from the final judgment so
that plaintiff does not receive more than a single recovery for her single injury.” Id.

        In Greer v Advantage Health, 305 Mich App 192; 852 NW2d 198, app gtd 497 Mich 920
(2014), the “[p]laintiffs asserted joint and several claims of negligence against all defendants
attending Elizabeth Greer during the delivery of Makenzie, which resulted in injury to both
Elizabeth (ruptured uterus) and Makenzie (hypoxic brain injury, respiratory depression,
metabolic acidosis, permanent brain damage, and blindness). Before trial, defendant St. Mary’s
Hospital settled all plaintiffs’ claims, including those of Elizabeth’s husband, Kenneth Greer, for
$600,000. The settlement did not differentiate between plaintiffs’ claims for damages that
included the personal injuries of Elizabeth and Makenzie and Kenneth’s claims for Makenzie’s
medical expenses and loss of consortium.” Greer, 305 Mich App at 196 (internal footnote
omitted). The jury found no cause of action as to Elizabeth’s and Kenneth’s claims, but awarded
substantial damages for Makenzie. The defendants moved for a setoff of the entire amount that
St. Mary’s had paid in the previous settlement. The trial court declined to setoff the full amount
because the settlement was for all three plaintiffs and, therefore, it would have been unfair to
Makenzie to offset the full amount. Id. at 196-198.

        The Court in Greer concluded that, in keeping with Velez, the trial court should have
applied the full setoff amount “because the $600,000 St. Mary’s Hospital paid to all plaintiffs to
settle all plaintiffs’ claims arising out of the alleged malpractice of the codefendants attending to
the birth of Makenzie must reduce pro tanto the amount of the jury verdict, after any statutory

                                                -10-
reductions against the jointly liable defendants regarding all plaintiffs’ identical malpractice
claims. Id. at 200 (internal citation omitted). And, “[b]y assigning 1/3 of the St. Mary’s
settlement to each plaintiff’s claims, the trial court failed to fully apply the principle of setoff that
for one injury there may be a single recovery.” Id. at 203. The Court explained:

                Plaintiffs brought their complaint against all defendants alleging a single
        count of malpractice concerning a single discrete incident, the birth of Makenzie.
        Because any liability of defendants was joint and several, plaintiffs were free to
        settle with some defendants and proceed to trial against other defendants. But for
        a single injury, plaintiffs could have only one recovery. Plaintiffs might have been
        able, with St. Mary’s agreement, to apportion the settlement among plaintiffs’
        separate claims. Plaintiffs here did not do so. Plaintiffs collectively settled all
        their claims against a jointly liable tortfeasor arising out of a single instance of
        malpractice involving Makenzie’s birth for a single undifferentiated lump sum of
        $600,000. After trial against the nonsettling defendants on all the same claims, a
        jury determined the value of all plaintiffs’ claims. To ensure that plaintiffs are
        fully but not overly compensated for all their claims, the entire St. Mary’s
        settlement must be offset against the amount the jury determined represented
        plaintiffs’ collective damages. When there is a recovery “for an injury identical in
        nature, time and place, that recovery must be deducted from [the plaintiffs’] other
        award.” Great Northern Packaging, Inc v Gen Tire & Rubber Co, 154 Mich App
        777, 781, 399 NW2d 408 (1986).

                This reasoning is reinforced by our Supreme Court’s decision in Velez,
        which noted that “[t]he term ‘joint and several’ liability, as used in MCL
        600.6304(6)(a), is a technical legal term.” It means when multiple tortfeasors
        cause “ ‘a single or indivisible injury, the injured party [may] either sue all
        tortfeasors jointly or he [may] sue any individual tortfeasor severally, and each
        individual tortfeasor [is] liable for the entire judgment....’ ” Id. (citation omitted;
        alterations in original; emphasis added). In the context of the Court’s discussion
        of the interplay between common-law setoff and statutory limitations on damages
        in medical malpractices cases, it is clear that the “single or indivisible injury”
        referred to is the allegation of malpractice. The damages flowing from the single
        injury—the malpractice—may be economic or noneconomic, past or future.
        “Inherent in the meaning of joint and several liability is the concept that a
        plaintiff’s recovery is limited to one compensation for the single injury.” Velez,
        492 Mich at 13. Because in this case Makenzie had already received partial
        compensation for her malpractice injury, “application of the common-law setoff
        rule requires that codefendants’ settlement be subtracted from the final judgment
        so that [she] does not receive more than a single recovery for her single injury.”
        Id. at 23. [Greer, 305 Mich App at 203-04 (some internal citations omitted).]

        But what about a situation where the multiple tortfeasors are not all medical agencies or
practitioners? At issue in Bell v Ren-Pharm, 269 Mich App 464; 713 NW2d 285 (2006) was
“whether the joint and several liability of a defendant under the tort reform statute, MCL
600.6304(6)(a), extends to damages attributable to the fault of a named nonparty.” Bell, 269
Mich App at 465. In that case, the plaintiff was burned after his grandmother applied an

                                                  -11-
ointment supplied by the defendants. The plaintiff sued defendants, but not the grandmother.
Defendants named the grandmother as a nonparty at fault. A jury ultimately determined that the
defendants were 20 percent at fault and the grandmother was 80 percent at fault. In spite of the
defendants’ arguments to the contrary, the trial court concluded that the defendants were jointly
and severally liability for the damages attributable to the grandmother’s fault. Id. at 465-466.

        This Court affirmed and rejected each of the parties’ arguments:

                Defendants argue that, because this phrase [“the liability of each defendant
        is joint and several”] only mentions “each defendant,” its plain meaning is that
        defendants are jointly and severally liable only for damages arising from the fault
        of other defendants, not at-fault nonparties. Defendants argue that, had the
        Legislature wanted the liability to extend to such nonparties, the statute would
        have been drafted to say “the liability of each defendant and nonparty is joint and
        several.” To the contrary, plaintiffs argue that the statute clearly makes each
        defendant jointly and severally liable for all damages, including those attributable
        to the fault of a nonparty. We conclude that both of these arguments are wrong;
        the statute is simply silent on the question presented. [Id. at 467.]

The Bell Court then went on to consider “general principles of joint and several liability”
because where “the tort reform act is silent on the question presented, it is logical to assume that
the Legislature intended the question would be resolved using generally applicable principles of
joint and several liability, as long as those principles do not conflict with current statutes.” Id. at
468-469.

         The Court quoted Restatement Torts, 3d, Apportionment of Liability, §A18,p 160: “‘If
the independent tortious conduct of two or more persons is a legal cause of an indivisible injury,
each person is jointly and severally liable for the recoverable damages caused by the tortious
conduct.’” Bell, 269 Mich App at 469. It noted that the definition did not limit application of
joint and several liability to just the “parties” in an action. As a consequence to joint and several
liability, the burden of seeking contribution from other responsible persons is on the defendants,
not the plaintiff. “In other words, a defendant is liable for ‘all damages,’ even those arising from
the fault of ‘other potentially responsible persons,’ and even if they have not been named as
parties in a tort action.” Id. at 469-470. This is in keeping with the recognized purpose of the
joint and several liability rule – “to place the burden of injustice, if injustice is inevitable, on the
wrongdoer instead of on the innocent plaintiff.” Id. at 471. And “while there may be some
injustice in holding an at-fault defendant jointly and severally liable for damages attributable to
some other person’s fault, it would be more unjust to leave an innocent plaintiff with only a
partial recovery of damages if the other person cannot be effectively pursued.” Id. at 471-472.
Therefore, the “underlying purpose of joint and several liability extends even to damages caused
by the fault of a person not a party to an action.” Id. at 472.

                                 C. APPLICATION OF THE LAW

        The common-law rule of setoff applies where there is joint and several liability, wherein
each party is liable for the entire judgment and plaintiff has suffered a single, indivisible injury.
Plaintiff writes that “in order for joint and several liability to exist, plaintiff must have the ability

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to pursue each liable party for the entire obligation, regardless of the apportionment of fault
among the defendants. Here, plaintiff never had the right to pursue Defendant Hospital for
Wayne County’s constitutionally tortious conduct and, reciprocally, Wayne County could never
pursue Defendant Hospital for contribution or indemnity.” This argument erroneously focuses
on whether Hutzel could have been jointly and severally liable for the Wayne County
defendants’ alleged § 1983 violations where the sole inquiry under MCL 600.6304(6) is whether
the action includes a medical malpractice claim and whether plaintiff is without fault. If the
answer is affirmative as to both, then joint and several liability applies. “The action” at issue
here is plaintiff’s medical malpractice claims against Hutzel. “The action” is not referring to
plaintiff’s previous claims against the Wayne County defendants in federal court. Therefore, it is
irrelevant that Wayne County was never joined in plaintiff’s medical malpractice claim against
Hutzel.

        Moreover, plaintiff mistakenly focuses on the particular causes of action in the federal
and state courts by arguing that “a violation of a constitutional right is fundamentally different
than an ordinary tort.” True, plaintiff’s federal action involved a § 1983 constitutional claim that
her civil rights were violated while her state claim sounded entirely in medical malpractice, but
the focus for determining whether joint and several liability applies is not on the causes of action
or the potential range of damages for each; instead, the focus is on the injury for which plaintiff
seeks compensation. “The common-law setoff rule is based on the principle that a plaintiff is
only entitled to one full recovery for the same injury. An injured party has the right to pursue
multiple tortfeasors jointly and severally and recover separate judgments; however, a single
injury can lead to only a single compensation.” Kaiser, 480 Mich at 39. “Generally, under
Michigan law, only one recovery is allowed for an injury. To determine whether a double
recovery has occurred, this Court must ascertain what injury is sought to be compensated. Thus,
where a recovery is obtained for any injury identical with another in nature, time, and place, that
recovery must be deducted from the plaintiff’s other award.” Grace v Grace, 253 Mich App
357, 368-69; 655 NW2d 595 (2002). Markley instructs that successive negligent acts that are not
necessarily temporal may nevertheless produce a single, indivisible injury. It further instructs
that a plaintiff is only entitled to one recovery for such an injury and that a court will overlook
procedural gamesmanship by considering multiple tortfeasors to have been jointly sued in a
single action.

        Here, defendant’s alleged professional malpractice coupled with the Wayne County
violation of plaintiff’s constitutional rights resulted in one indivisible injury – plaintiff’s
hypoxic-ischemic traumatic brain damage. The jury concluded that plaintiff was entitled to past
economic damages, future economic damages for lost earning capacity and medical care, and
future non-economic damages and the trial court entered a judgment in plaintiff’s favor in the
amount of $6,119,775. This amount reflects the jury’s determination that plaintiff was entitled to
compensation for her traumatic brain injury. Because plaintiff is entitled to only one recovery




                                               -13-
for a single injury and she previously received over $8 million dollars in the settlement with
other tortfeasors, defendant is entitled to a setoff of the entire amount.7

        Reversed and remanded for further proceedings not inconsistent with this opinion. We
do not retain jurisdiction.

                                                              /s/ David H. Sawyer
                                                              /s/ Kirsten Frank Kelly




7
  The parties each spent a great deal of energy arguing whether the settlement included only
plaintiff’s Monell claims against Wayne County. We find no reason to specifically discuss the
terms of the settlement, especially in light of the fact that case law clearly provides that joint and
several liability applies even in situations where there is a nonparty tortfeasor. See Bell, 269
Mich App 464. Thus, even if the settlement included only plaintiff’s Monell claims against
Wayne County and not its individual employees, it has no bearing on the issue of joint and
several liability.


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