                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2006-IA-00675-SCT

THE ESTATE OF STACEY KAY KLAUS BY ALTA
KLAUS, ADMINISTRATRIX AND ALTA KLAUS AS
P E R S O N A L R E P R E S E N T A T IV E O F T H E
W RONGFUL DEATH BENEFICIARIES OF
STACEY KAY KLAUS

v.

VICKSBURG HEALTHCARE, LLC d/b/a RIVER
REGION HEALTH SYSTEMS, RIVER REGION
MEDICAL CORPORATION, TRIAD HOSPITALS,
INC., STEPHANIE VANDERFORD, R.N., AND
EUGENE FERRIS, III, M.D.

DATE OF JUDGMENT:                           04/04/2006
TRIAL JUDGE:                                HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:                  WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                    JERRY CAMPBELL
ATTORNEYS FOR APPELLEES:                    KRISTOPHER ALAN GRAHAM
                                            STUART BRAGG HARMON
                                            R.E. PARKER, SR.
                                            CLIFFORD C. WHITNEY, III
NATURE OF THE CASE:                         CIVIL - WRONGFUL DEATH
DISPOSITION:                                AFFIRMED AND REMANDED - 11/29/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    In this interlocutory appeal, the Court is asked to address the legislatively-instituted

cap on non-economic damages found in Mississippi Code Annotated Section 11-1-60(2)(a)

(Supp. 2007) and its effect, vel non, on the wrongful-death statute, i.e., Mississippi Code

Annotated Section 11-7-13 (Rev. 2004).
                                           FACTS

¶2.    Stacey Kay Klaus (“Stacey”) died following surgery at River Region Hospital. On

July 18, 2005, Stacey’s mother, Alta, filed a medical malpractice complaint against the

Appellees in the Circuit Court of Warren County, Mississippi, as Administratrix of Stacey’s

estate and “as personal representative of the wrongful-death beneficiaries of [Stacey] . . . .”

Stacey’s wrongful-death beneficiaries (“Klauses”) are Alta; her father, Sylvain; and her half-

sister, Marian.

¶3.    Subsequently, the Klauses filed a “Motion for Declaratory Judgment” in the trial

court, stating:

       2. Under Miss. Code Ann. § 11-1-60, non-economic damages are limited to
       $500,000.00 for “the plaintiff.”

       3. This wrongful death claim actually has three plaintiffs being the mother,
       father and half-sister. Although by statute each plaintiff must share equally in
       any award, each plaintiff has a separate claim for damages incurred for the
       death of [Stacey] because each plaintiff has a different relationship with [her].

       4. The rights of each beneficiary plaintiff is affected by Miss. Code Ann. § 11-
       1-60. [The Klauses] pursuant to Rule 57 M.R.C.P. seeks a declaration from
       this Court, deciding whether each plaintiff’s non-economic damages are
       limited to $500,000.00 or the suit’s total non-economic damages are limited
       to $500,000.00.

(Emphasis added). Dr. Eugene Ferris filed his Response to that motion,1 arguing that “the

noneconomic damages of all of the wrongful death beneficiaries of [Stacey], in the aggregate,

are capped at the statutory maximum of $500,000 under Miss. Code Ann. § 11-1-60.”

Following hearing, the circuit court entered a “Declaratory Judgment” finding that “the

limitation on non-economic damages in 11-1-60(2)(a) to $500,000.00 applies to this cause

       1
           Subsequently joined by the other Appellees.

                                              2
of action regardless of the number of beneficiaries.” This Court granted the Klauses’ timely

petition for interlocutory appeal. See M.R.A.P. 5.

                                             ISSUE

¶4.    This Court will consider:

       (1) Does Mississippi Code Annotated Section 11-1-60(2)(a) limit non-
       economic damages to $500,000 for all wrongful death beneficiaries and the
       estate in an action for medical malpractice?

                                          ANALYSIS

¶5.    As this interlocutory appeal involves “a question of law and interpretation of a

statute[,] . . . the standard of review is de novo.” Miss. Dep’t of Transp. v. Allred, 928 So.

2d 152, 154 (Miss. 2006) (citing Cooper v. Crabb, 587 So. 2d 236, 239 (Miss. 1991)). This

Court has stated that:

       [i]n considering a statute passed by the legislature, . . . the first question a court
       should decide is whether the statute is ambiguous. If it is not ambiguous, the
       court should simply apply the statute according to its plain meaning and should
       not use principles of statutory construction. Whether the statute is ambiguous
       or not, the ultimate goal of this Court is to discern and give effect to the
       legislative intent.

City of Natchez v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992) (citations omitted).

¶6.    Mississippi Code Annotated Section 11-1-60(2)(a) provides that:

       [i]n any cause of action filed on or after September 1, 2004, for injury based
       on malpractice or breach of standard of care against a provider of health care,
       including institutions for the aged or infirm, in the event the trier of fact finds
       the defendant liable, they shall not award the plaintiff more than Five Hundred
       Thousand Dollars ($500,000.00) for noneconomic damages.

Miss. Code Ann. § 11-1-60(2)(a) (Supp. 2007) (emphasis added). In pertinent part, the

wrongful-death statute authorizes that:



                                                 3
       [t]he action for such damages may be brought in the name of the personal
       representative of the deceased person . . . for the benefit of all persons entitled
       under the law to recover, . . . or by the parent for the death of a child, . . . or by
       a sister for the death of a sister, . . . or all parties interested may join in the suit,
       and there shall be but one (1) suit for the same death which shall ensue for the
       benefit of all parties concerned, but the determination of such suit shall not
       bar another action unless it be decided on the merits. Except as otherwise
       provided in Section 11-1-69, in such action the party or parties suing shall
       recover such damages allowable by law as the jury may determine to be just,
       taking into consideration all the damages of every kind to the decedent and all
       damages of every kind to any and all parties interested in the suit.

Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added).

¶7.    The Klauses argue that these two statutes, read together, create an ambiguity.

Specifically, they maintain that the “shall not award the plaintiff more than Five Hundred

Thousand ($500,000.00) for noneconomic damages” language of Mississippi Code

Annotated Section 11-1-60(2)(a) is incongruent with the fact that, under the wrongful-death

statute of Mississippi Code Annotated Section 11-7-13, multiple plaintiffs may have standing

to file suit. The Appellees respond that “[w]rongful death actions are, inherently, derivative”

and, therefore, “any defense which would have been available against the deceased, is

available against the wrongful death beneficiaries.” See Lee v. Thompson, 859 So. 2d 981,

987 (Miss. 2003). Therefore, the Appellees argue that “the plain language of § 11-1-60

establishes that the cap applies to the total amount of recoverable damages and that it is not

multiplied by the number of parties involved.” Furthermore, the Appellees assert that

following this Court’s decision in Allred, Mississippi Code Annotated Section 11-1-60,

“when read in pari materia with §§ 1-3-1 and 1-3-33, applies regardless of the number of

plaintiffs.”

¶8.    In Allred, this Court addressed the question of:

                                                  4
       when multiple governmental defendants have been sued in “single occurrence”
       jurisdictions, such as Mississippi, does the limitation of liability [in Mississippi
       Code Annotated Section 11-46-15(1)(a)2 ] provide for one maximum dollar
       amount of liability for a single tortious act, regardless of the number of
       governmental entities sued, or does the maximum dollar amount of liability
       apply separately to each governmental entity defendant?

Allred, 928 So. 2d at 154. In response to Allred’s argument that the $50,000 limit in

Mississippi Code Annotated Section 11-46-15(1) is to be applied per person, see id. at 153,

this Court found:

       Miss. Code Ann. Section 1-3-1, states, “this chapter is applicable to every
       statute unless its general object, or the context of the language construed, or
       other provisions of law indicate that a different meaning or application was
       intended from that required by this chapter.” Specifically pertinent in this case
       is Miss. Code Ann. Section 1-3-33 which states, “words used in the singular
       number only, either as descriptive of persons or things, shall extend to and
       embrace the plural number; and words used in the plural number shall extend
       to and embrace the singular number, except where a contrary intention is
       manifest.”

       The common maxim is that statutes in pari materia are to be construed
       together. When a statute is in pari materia with a later one, it is simply part
       of its context to be considered by the Court in deciding whether the meaning
       of a provision in the later statute is plain. See Rupert Cross, Statutory
       Interpretation 128 (1976). Applying Miss. Code Ann. Section 1-3-33 to an
       analysis of the Mississippi Tort Claims Act, it is abundantly clear that the Act
       fails to manifestly express a contrary intention, as required by Miss. Code Ann.


       2
           Mississippi Code Annotated Section 11-46-15(1)(a) states, in pertinent part, that:

       (1) In any claim or suit for damages against a governmental entity or its
       employee brought under the provisions of this chapter, the liability shall not
       exceed the following for all claims arising out of a single occurrence for all
       damages permitted under this chapter:

       (a) For claims or causes of action arising from acts or omissions occurring on
       or after July 1, 1993, the sum of Fifty Thousand Dollars ($50,000.00).

Miss. Code Ann. § 11-46-15(1)(a) (Rev. 2002) (emphasis added).

                                                5
       Section 1-3-33. The Legislature had the opportunity to declare that the statute
       at issue was to be read only in the singular, but did not. Additionally, the
       Legislature did not manifestly express a contrary intention not to include
       plural language in its Declaration of Legislative Intent. Miss. Code Ann. § 11-
       46-3. The Legislature had the opportunity to manifest an intent that the statute
       should be read only in the singular; however, it is clear the Legislature did not
       do so. There being no ambiguity, the Court is bound to simply apply the
       statutes according to their plain meaning.

Allred, 928 So. 2d at 155-56 (emphasis added). Therefore, this Court concluded that

Mississippi Code Annotated Section 11-46-15(1) “shall be interpreted by using singular or

plural language.” Id. at 156 (emphasis added).

¶9.    The learned circuit judge did not have the benefit of Allred when he entered

“Declaratory Judgment” in favor of the Appellees. Nonetheless, he correctly observed that

the Klauses’ “argument that the use of the singular form of ‘plaintiff’ in § 11-1-60 MCA

would apply to each beneficiary, individually, is not persuasive . . . .” Just as in Allred,

“[t]he Legislature had the opportunity to declare that the statute at issue was to be read only

in the singular, but did not. Additionally, the Legislature did not manifestly express a

contrary intention not to include plural language in its Declaration of Legislative Intent.” Id.

Accordingly, the statute is to be applied according to its plain meaning and “the plaintiff” in

Mississippi Code Annotated Section 11-1-60(2)(a) “shall be interpreted by using the singular

or plural language” when considered in pari materia with Mississippi Code Annotated

Section 1-3-33 (Rev. 2005).

¶10.   While acknowledging the rectitude of the majority view, stating it “is consistent with

the legislative purpose behind Section 11-1-60” (Dissenting Opinion at ¶21), the dissent then

mulls over the potential unintended consequences of the legislative act and concludes that



                                               6
these potential unjust results were “not fully taken into consideration by the Legislature.”

(Dissenting Opinion at ¶23).      If perchance the Legislature should subscribe to these

assumptions, it may amend Mississippi Code Annotated Section 11-1-60 and expressly

manifest a contrary intention to the plain language of Mississippi Code Annotated Section

1-3-33. See Miss. Ethics Comm’n v. Grisham, 957 So. 2d 997, 1003 (Miss. 2007) (“[t]he

power to change this result lies with the legislature to amend the statute.”). However, the

dissent’s suggestion that this Court should redress the perceived legislative error by judicial

fiat requires an act of judicial activism. To properly preserve the separation of powers

mandated by the Mississippi Constitution, see Miss. Const. art. I, §§ 1-2, this Court should

act with restraint. See Grisham, 957 So. 2d at 1003 (“[t]he privilege to amend a statute, not

constitutionally infirm, does not rest with this Court.”).

                                      CONCLUSION

¶11.   By enacting Mississippi Code Annotated Section 11-1-60(2)(a), the Legislature

expressly instituted a cap on noneconomic damages recoverable by “the plaintiff.”

Mississippi Code Annotated Section 1-3-33 provides that words written in the singular are

to be read in the plural. In light of Mississippi Code Annotated Section 1-3-33 and this

Court’s decision in Allred, the cap on noneconomic damages applies to plaintiff or plaintiffs.

Therefore, the cap on noneconomic damages in Mississippi Code Annotated Section 11-1-

60(2)(a) applies to all plaintiffs who bring a wrongful-death action pursuant to Mississippi

Code Annotated Section 11-7-13. Accordingly, the judgment of the Circuit Court of Warren

County is affirmed, and this case is remanded to that court for further proceedings consistent

with this opinion.

                                              7
¶12.   AFFIRMED AND REMANDED.

     SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON, AND
LAMAR, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, J.


       DIAZ, PRESIDING JUSTICE, DISSENTING:

¶13.   “In considering a statute passed by the legislature . . . the first question a court should

decide is whether the statute is ambiguous.” City of Natchez, Miss. v. Sullivan, 612 So. 2d

1087, 1089 (Miss. 1992). Section 11-1-60(2)(a) provides in pertinent part: “In a cause of

action filed on or after September 1, 2004, . . . the trier of fact . . . shall not award the plaintiff

more than Five Hundred Thousand Dollars ($500,000) in noneconomic damages.” Miss.

Code Ann. § 11-1-60(2)(a) (Supp. 2007) (emphasis added). When read alone, this provision

is unambiguous: It caps the amount of noneconomic damages a plaintiff can recover in a

medical malpractice action at $500,000.               However, Section 11-1-60(2)(a) becomes

ambiguous when considered in the context of a wrongful death action, where one action is

frequently filed by multiple plaintiffs.3

¶14.   The majority finds the provision at issue unambiguous and contends that it “is to be

applied according to its plain meaning[.]” According to the majority, the plain meaning of

Section 11-1-60(2)(a) is that the noneconomic damages cap set forth in that provision applies

to all wrongful death beneficiaries in the aggregate, rather than to each beneficiary




       3
        Under the wrongful death statute, only one wrongful death action may be brought on
behalf of all the wrongful death beneficiaries: “[T]here shall be but one (1) suit...” Miss.
Code Ann. § 11-7-13 (Rev. 2004). But a wrongful death action may be brought “by all
interested parties,” and “all parties interested may join the suit[.]” Id.

                                                  8
individually. The majority reaches this conclusion by reading the term “plaintiff” in its plural

form (“plaintiffs”) in accordance with Mississippi Code Annotated Section 1-3-33 (Rev.

2005).

¶15.     I agree that the term “plaintiff” Section 11-1-60(2)(a) must be read in both its singular

and plural form because the Legislature did not express an intent that the statute be read only

in the singular. Miss. Code Ann. § 1-3-33 (Rev. 2005). However, even if one reads the term

“plaintiff” in its plural form, the plain meaning of Section 11-1-60(2)(a) is not that the

noneconomic damages cap applies to all wrongful death beneficiaries in the aggregate.

When “plaintiffs” is substituted for “plaintiff,” the statute remains ambiguous: “the trier of

fact . . . shall not award the plaintiff[s] more than Five Hundred Thousand Dollars ($500,000)

for noneconomic damages.” Miss. Code Ann. § 11-1-60(2)(a) (Rev. 2005). When read in

that form, the statute can be interpreted to mean either that plaintiffs cannot recover more

than a total of $500,000 in noneconomic damages in a wrongful death action or that each

plaintiff in a wrongful death action cannot recover more than $500,000 in noneconomic

damages.

¶16.     “Where statutes are ambiguous or in conflict with one another, it is proper to resort

to the rules of statutory construction.” Miss. Gaming Comm’n v. Imperial Palace of Miss.,

Inc., 751 So. 2d 1025, 1028 (Miss. 1999). “The primary rule of construction is to ascertain

the intent of the legislature from the statute as a whole and from the language used therein.”

Clark v. State ex rel. Miss. State Med. Ass’n, 381 So. 2d 1046, 1048 (Miss. 1980).

¶17.     The intent of the Legislature in enacting Section 11-1-60 is explicitly stated in the

statute: “It is the intent of this section to limit all noneconomic damages to the above.” Miss.

                                                 9
Code Ann. § 11-1-60 (Supp. 2007). Based on a plain reading of the statute, it is clear that

the Legislature intended to cap the amount of noneconomic damages that could be recovered

by a single plaintiff in a single medical malpractice cause of action. However, it is not

apparent that the Legislature intended to cap the total amount of noneconomic damages that

could be recovered by multiple plaintiffs in a wrongful death action premised on medical

malpractice at $500,000.

¶18.   When the Legislature has intended to place a cap on plaintiffs’ damages in the

aggregate in other contexts, it has done so explicitly. For example, in Mississippi Code

Annotated Section 11-46-15(1) (Rev. 2002), a provision of the Mississippi Tort Claims Act,

the Legislature “establish[ed] a per occurrence cap on governmental liability.” Allred v.

Yarborough, 843 So. 2d 727, 730 (Miss. 2003). Section 11-46-15(1) provides in pertinent

part: “In any claim or suit for damages against a governmental entity or its employee brought

under the provisions of this chapter, the liability shall not exceed the following for all claims

arising out of a single occurrence for all damages permitted under this chapter . . . .” Miss.

Code Ann. § 11-46-15(1) (Rev. 2002) (emphasis added).

¶19.   It is well-settled that “the omission of language from a similar provision on a similar

subject indicates that the legislature had a different intent in enacting the provisions, which

it manifested by the omission of the language.” City of Natchez, 612 So. 2d at 1089. The

fact that Section 11-1-60(2)(a) does not contain language similar to that of Section 11-46-

15(1), limiting damages for all claims arising out of a single occurrence or incident, indicates

that the Legislature did not intend for the $500,000 noneconomic damages cap to apply to

all claims arising out of a single act of medical malpractice.

                                               10
¶20.   “[I]n determining the legislative intent, [the Court] may look not only to the language

used [in the statute] but also to [the statute’s] historical background, its subject matter, and

the purposes and objects to be accomplished.” Clark, 381 So. 2d at 1048. Section 11-1-60

was passed in the special session of the Mississippi Legislature on tort reform in 2002. E.

Farish Percy, Checking Up on the Medical Malpractice Liability Insurance Crisis in

Mississippi: Are Additional Reforms the Cure?, 73 Miss. L.J. 1001, 1002 (2004). The

ultimate purpose of Section 11-1-60 was to alleviate the perceived medical malpractice

liability insurance crisis in Mississippi. See id. at 1001-1003, 1034-37. Specifically, Section

11-1-60 was designed to put an end to excessive damage awards in medical malpractice

cases,4 which, in turn, would help bring down the cost of medical malpractice insurance in

the state. See id. at 1036 n.126.

¶21.   Although the majority’s holding that Section 11-1-60(2)(a) limits noneconomic

damages per medical malpractice incident in the aggregate is consistent with the legislative

purpose behind Section 11-1-60, I believe the holding will have ramifications that the

Legislature did not intend.5 “Unthought of results must be avoided if possible, especially

       4
        In fact, not many large medical malpractice verdicts were returned in the period
preceding the movement for tort reform. One study found that the number of medical
malpractice verdicts exceeding one million dollars averaged one per year from 1995 through
mid-2002. Neil Vidmar and Leigh Anne Brown, Tort Reform and the Medical Liability
Insurance Crisis in Mississippi: Diagnosing the Disease and Prescribing a Remedy, 22
Miss. C. L. Rev. 9, 15-20 (2002) (concluding that “there is no evidence that Mississippi
juries are out of control in medical malpractice cases”).
       5
         By stating that today’s holding is consistent with the legislative purpose behind
Section 11-1-60, I do not mean that the majority’s application of Section 11-1-60(2)(a) is
correct in any regard. I am not “validating” the majority’s “analysis” at all. I am simply
stating the obvious: Applying Section 11-1-60(2)(a) per medical malpractice incident in the
aggregate, as the majority does, is consistent with the statute’s legislative purpose of limiting

                                               11
if injustice follows, and unwise purpose will not be imputed to the Legislature when a

reasonable construction is possible.” McMullen v. State ex rel. Alexander, 217 Miss. 256,

271, 63 So. 2d 856, 861 (1953) (internal quotation marks and citation omitted). Many

“unthought of [and unjust] results” will flow from today’s holding.6

¶22.   First, wrongful death beneficiaries who are members of smaller classes of

beneficiaries will receive more damages for their claims for loss of society and

companionship than beneficiaries who belong to larger classes. Second, in wrongful death

cases where the jury determines that the decedent’s pain and suffering between injury and

death and the wrongful death beneficiaries’ claims for loss of society and companionship

warrant an award of damages in excess of $500,000, the beneficiaries will not be fully

compensated for the decedent’s pain and suffering or their loss of society and

companionship.7 Third, today’s holding will affect medical malpractice cases not involving

wrongful death. A married couple that brings a medical malpractice action consisting of a



the amount of noneconomic damages awarded in medical malpractice cases because it will
limit the amount of noneconomic damages awarded in medical malpractice cases. Of course,
the construction of the statute that I advocate is also consistent with the legislative purpose
behind the statute. The ultimate question is not whether a particular application of Section
11-1-60(2)(a) is consistent with the general purpose of the statute, but whether it effectuates
the intent of the Legislature. In my view, the majority’s application of Section 11-1-60(2)(a)
in this case does not effectuate the intent of the Legislature. Accordingly, I do not
acknowledge the “rectitude” of the holding in this case.
       6
       As discussed infra, there is nothing “potential” about the unjust results of today’s
decision, contrary to the majority’s assertion.
       7
       As a result of the holding in today’s case, in wrongful death cases not premised on
medical malpractice, the beneficiaries will not be fully compensated if a jury determines that
the noneconomic damages exceed $1,000,000. Miss. Code Ann. § 11-1-60(2)(b) (Supp.
2007).

                                              12
personal-injury claim and a claim for loss of consortium will not be fully compensated if the

jury determines that the injured spouse’s damages for pain and suffering and the other

spouse’s damages for loss of consortium exceed $500,000.8

¶23.   I do not believe the Legislature intended for the noneconomic damages cap set forth

in Section 11-1-60(2)(a) to produce such unjust results. This Court has noted that the

Legislature did not contemplate the impact that the tort reform measures it enacted would

have on the wrongful death statute: “The Legislature clearly made major reforms in various

statutes during recent sessions which included passing Mississippi Code Ann. Section 11-11-

3(3). However, it is equally clear that the wrongful death statute, Section 11-7-13, was not

considered concerning events and multiple defendant doctors such as what we have before

us now, when these changes in various statutes where made.” Rose v. Bologna, 942 So. 2d

1287, 1290 (¶9) (Miss. 2006). Clearly, the impact that Section 11-1-60 could potentially

have on the wrongful death statute was not fully taken into consideration by the Legislature.

¶24.   “The purposes of the wrongful death statute are to prevent the wrongful termination

of life and provide the beneficiary with compensation for the loss of companionship and

society of the deceased, the pain and suffering of the deceased between injury and death, and

punitive damages.” 66 Fed. Credit Union v. Tucker, 853 So. 2d 104, 109-10 (Miss. 2003);

see also Miss. Code Ann. § 11-7-13 (Rev. 2004) (“the party or parties suing shall recover




       8
       This will be the effect because in a medical malpractice case involving a primary
personal-injury claim and a loss-of-consortium claim, there is one cause of action and more
than one plaintiff, as in a wrongful death action. See Choctaw, Inc. v. Wichner, 521 So. 2d
878, 881 (Miss. 1988) (holding that a claim for loss of consortium is a derivative claim, not
an independent cause of action).

                                             13
such damages allowable by law as the jury may determine to be just, taking into

consideration all the damages of every kind to the decedent and all damages of every kind

to any and all parties interested in the suit”) (emphasis added). To hold that the Legislature

intended for the noneconomic damages cap on medical malpractice actions to apply to

wrongful death beneficiaries in the aggregate, would mean that the Legislature enacted

Section 11-1-60 in direct contravention of one of the purposes of the wrongful death statute:

to fully compensate all beneficiaries for their loss of society and companionship and the pain

and suffering of the decedent. This Court should not impute such an unwise purpose to the

Legislature, especially when a reasonable construction of the statute that does not produce

unjust results is possible. McMullen, 63 So. 2d at 861.

¶25.   Construing Section 11-1-60(2)(a) to apply to each wrongful death beneficiary

separately, rather than in the aggregate, prevents that provision from abrogating an essential

part of the wrongful death statute.      Further, such a construction gives effect to the

Legislature’s intent in enacting Section 11-1-60–limiting the amount of noneconomic

damages awarded in medical malpractice cases–because each beneficiary will not be allowed

to recover more than $500,000 in noneconomic damages. This approach does not subvert

the cap created by the Legislature. Rather, it balances the Legislature’s goal of protecting

the health care industry with the mandate of the wrongful death statute that all wrongful

death beneficiaries be fully compensated for their claims. Accordingly, I would hold that the




                                             14
noneconomic damages cap set forth in Section 11-1-60(2)(a) applies to each wrongful death

beneficiary individually.9

¶26.   The Supreme Court of Florida reached the same conclusion when faced with a very

similar issue. St. Mary’s Hosp., Inc. v. Phillipe, 769 So. 2d 961, 967-71 (Fla. 2000). In that

case the court was presented with the question of whether the $250,000 noneconomic

damages cap in the arbitration provisions of Florida’s Malpractice Act applied to all wrongful

death claimants in the aggregate or to each claimant individually. Id. at 967. The provision

in question reads as follows:

       Noneconomic damages shall be limited to a maximum of $250,000 per
       incident, and shall be calculated on a percentage basis with respect to capacity
       to enjoy life, so that a finding that the claimant's injuries resulted in a 50-
       percent reduction in his or her capacity to enjoy life would warrant an award
       of not more than $125,000 noneconomic damages.

Fla. Stat. § 766.207(7)(b) (emphasis added).

¶27.   The court acknowledged that the provision stated that “noneconomic damages shall

be limited to a maximum of $ 250,000 per incident,” but concluded that the use of the

singular “claimant” made the provision ambiguous. Phillipe, 769 So. 2d at 968. Because

the statute was ambiguous, the court proceeded to “look to the legislative intent for

guidance.” Id. It determined that the noneconomic damages cap provided “liability insurers


       9
         The majority claims that my proposed construction of Section 11-1-60(2)(a) is
intended to “correct [a] perceived legislative error by judicial fiat,” and would constitute an
“act of judicial activism.” The majority is mistaken. I am not attempting to correct a
legislative error; rather, I am seeking to discover the intent of the Legislature in enacting
Section 11-1-60(2)(a) and apply it accordingly. After construing the statute, unlike the
majority, I find that the Legislature did not intend for Section 11-1-60(2)(a) to cap the total
amount of noneconomic damages that can be recovered in a wrongful death action at
$500,000. Accordingly, my conclusion is the opposite of judicial activism.

                                              15
with the ability to improve the predictability of the outcome of claims for the purpose of loss

planning in risk assessment for premium purposes.” Id. at 970.

¶28.   After discerning the legislative intent, the court “conclude[d] that the cap on

noneconomic damages applies to each claimant individually.” Id. at 972. The court

explained its reasoning as follows: “[I]n order for the assessment of a survivor’s

noneconomic damages to be equitable, each survivor’s loss must be independently

determined. Moreover, the loss of a survivor [should] not [be] diminished by the mere fact

that there are multiple survivors.” Id. at 971. The court also determined that its holding was

consistent with the purpose of the arbitration provision:

       Such an interpretation would provide increased predictability in the outcome
       of the claims as the insurers would no longer be contending with the possibility
       of exorbitant noneconomic damage awards but would have a fixed dollar
       amount ($ 250,000), which each claimant's award could not exceed. Moreover,
       this interpretation does more to promote early resolution of medical negligence
       claims, as it provides an equitable result which will in turn further encourage
       claimants to seek resolution through arbitration.

Id. at 970. In addition, the court acknowledged that “were we to interpret the noneconomic

damages cap to apply to all claimants in the aggregate, we conclude that such an

interpretation would create equal protection concerns.” Id. at 971.

¶29.   I find the Supreme Court of Florida’s analysis and reasoning to be very persuasive.

I agree that each wrongful death beneficiary’s noneconomic damages must be determined

separately in order to be equitable and that the recovery of a beneficiary should not be

reduced by the existence of other beneficiaries. Like the Florida Supreme Court, I conclude

that applying the noneconomic damages cap per beneficiary is consistent with the legislative




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goal of limiting health care providers’ exposure to liability. I also believe that the holding

in today’s case creates equal protection concerns.10

¶30.   For these reasons, I would hold that the noneconomic damages cap of Section 11-1-

60(2)(a) applies to each wrongful death beneficiary individually, reverse the judgment of the

circuit court and remand this case for further proceedings consistent with that holding.

Accordingly, I must respectfully dissent.

       GRAVES, J., JOINS THIS OPINION.




       10
          I not only have equal protection concerns about the application of the noneconomic
damages cap on medical malpractice actions to wrongful death cases, but I also have equal
protection concerns about the cap itself. Several courts have held that such a cap violates
their state’s equal protection clause. The Alabama Supreme Court held that placing a cap
on noneconomic damages in medical malpractice cases “creates a favored class of tort-
feasors, based solely upon their connection with health care[.]” Moore v. Mobile Infirmary
Ass’n, 592 So. 2d 156, 166-67 (Ala. 1991); see also Carson v. Maurer, 424 A.2d 825, 940-
41 (N.H. 1980), overruled on other grounds by Cmty. Res. for Justice, Inc. v. City of
Manchester, 917 A.2d 707, 721 (N.H. 2007). Because this issue was not raised on appeal,
I will not address it.

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