                                                               Michigan Supreme Court
                                                                     Lansing, Michigan
                                         Chief Justice:	         Justices:



Opinion                                  Maura D. Corrigan 	     Michael F. Cavanagh
                                                                 Elizabeth A. Weaver
                                                                 Marilyn Kelly
                                                                 Clifford W. Taylor
                                                                 Robert P. Young, Jr.
                                                                 Stephen J. Markman




                                                FILED JULY 30, 2004



 ESTATE OF BETTY JEAN SHINHOLSTER,
 Deceased, by JOHNNIE E. SHINHOLSTER,
 Personal Representative,

       Plaintiff-Appellee,

 v                                                             No. 123720

 ANNAPOLIS HOSPITAL, assumed name for
 OAKWOOD UNITED HOSPITALS, INC.,

       Defendant-Appellant,

 and

 DENNIS ADAMS, M.D. AND MARY ELLAN
 FLAHERTY, M.D.,

      Defendants.
 _____________________________________

 ESTATE OF BETTY JEAN SHINHOLSTER,
 Deceased, by JOHNNIE E. SHINHOLSTER,
 Personal Representative,

       Plaintiff-Appellee,

 v                                                             No. 123721

 KATHERINE ADAMS, Personal Representative
 Of the Estate of DENNIS ADAMS, M.D., and
 MARY ELLEN FLAHERTY, M.D.,

       Defendants-Appellants,
and

ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,

     Defendant.
_____________________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

        We granted leave to appeal to consider the following

three issues: (1) whether, and to what extent, MCL 600.6304

permits a trier of fact in a medical malpractice action to

consider the plaintiff’s own pre-treatment negligence to

offset,       at    least     in     part,        the   defendant’s    fault;   (2)

whether the medical malpractice noneconomic damages cap of

MCL 600.1483 applies to a wrongful death action based on an

underlying claim of medical malpractice, and assuming such

cap applies, whether an action filed under the wrongful

death    act       is   subject      to   the      higher   medical    malpractice

noneconomic damages cap of § 1483; and (3) whether, and to

what    extent,         MCL   600.6311       applies      in   a   wrongful   death

action.        Regarding the first issue, the Court of Appeals

affirmed the trial court’s decision that MCL 600.6304(1)

did not permit the trier of fact to offset defendants’

fault    on    the      basis   of    plaintiff’s         alleged     pre-treatment




                                             2

negligence.1           On the basis of the clear and unambiguous

language of § 6304(1), we hold that a trier of fact is

permitted         in   “personal        injury,     property       damage,       [and]

wrongful      death”      tort      actions,     which        necessarily    include

medical malpractice actions, to consider a plaintiff’s pre-

treatment         negligence       in   offsetting        a    defendant’s       fault

where reasonable minds could differ with regard to whether

such        negligence        constituted         “a      proximate         cause”—a

foreseeable,           natural       and   probable           consequence—of       the

plaintiff's injury and damages.                   Further, on basis of the

evidence presented, we believe that reasonable minds could

find       that    plaintiff’s       pre-treatment         negligence       in    this

case—her      failing     to       regularly     take    her     prescribed      blood

pressure      medication          during   the    year    preceding       her    fatal

stroke—constituted            a    foreseeable,         natural,    and     probable

consequence of her fatal stroke, and thus we remand this

case to the trial court for proceedings consistent with the

opinions of this Court.

       Regarding        the       second   issue,       the    Court   of    Appeals

affirmed the trial court’s decision that the higher medical

malpractice noneconomic damages cap of § 1483 applies to a

wrongful death action.               Consistent with our recent decision


       1
           255 Mich App 339, 352-354; 660 NW2d 361 (2003).



                                           3

in Jenkins v Patel, 471 Mich ___, ___; ___ NW2d ___ (2004),

in which we held that the medical malpractice noneconomic

damages cap of MCL 600.1483 applies to a wrongful death

action based on an underlying claim of medical malpractice,

we affirm the decisions of both lower courts and hold that

the higher medical malpractice noneconomic damages cap of §

1483 applies where the injured person, at any time before

his    death   and     as    a    result        of    a     defendant’s        negligent

conduct, fits within the ambit of MCL 600.1483(1)(a), (b),

or (c).

       Regarding     the     third      issue,            the   Court    of     Appeals,

finding that MCL 600.6311 applies in this case because both

the personal representative and the decedent were or would

have   been    sixty    years      of   age          or    older    at   the    time   of

judgment,      affirmed          the    trial             court’s    decision       that

plaintiff’s award of future damages should not be reduced

to present value.           Because the term “plaintiff,” as used in

§ 6311, refers, for purposes of a wrongful death action, to

the decedent, and because Mrs. Shinholster, the decedent,

was sixty-one at her death and at the time of judgment, we

agree with the trial court’s interpretation of § 6311, and

hold that, on remand, the trial court cannot reduce any

future damages awarded to plaintiff to their present value.




                                           4

                                     I. BACKGROUND

        In this medical malpractice action, Betty Shinholster

(Shinholster), the decedent, made four visits to defendant

Annapolis Hospital in April 1995, complaining of dizziness.

Defendant Dr. Dennis Adams (Adams)2 examined plaintiff on

April 7 and April 10, and defendant Dr. Mary Ellen Flaherty

(Flaherty) examined Shinholster on April 14.                           Shinholster’s

fourth visit on April 16 was precipitated by a massive

stroke, after which she entered a coma for several months

and    died       at   the   age    of    sixty-one.           On     behalf   of   his

deceased          wife,    Johnnie       Shinholster          filed    suit    against

Adams, Flaherty, and Annapolis Hospital, alleging that they

had negligently treated his wife on April 10 and April 14

by    failing       to    recognize      that      she   had    been    experiencing

transient ischemic attacks, or “mini-strokes” that often

precede a full-blown, serious stroke.

        The jury found in plaintiff’s favor and awarded the

following damages: (1) $220,000 for past economic damages;

(2) $564,600 for past noneconomic damages; (3) $9,700 each

year in future economic damages for the years 1999 through

2003;       and    (4)    $62,500     each        year   in    future    noneconomic


        2
       Because Adams died during the pendency of this case,
his wife, Katherine Adams, was appointed as the personal
representative of his estate and substituted as a party.



                                             5

damages for the years 1999 through 2003.                         The jury further

concluded      that       Shinholster          had    been       twenty     percent

comparatively negligent in her actions after April 7, 1995,

by   not    regularly       taking       her   prescribed         blood    pressure

medication.     Consistent with the jury’s verdict, the trial

court    entered      judgment      for    plaintiff        in    the     amount    of

$916,480, “subject to any applicable statutory limitation,

statutory    cap,        adjustment       regarding     the       computation       of

comparative     negligence          or     adjustment        pursuant       to     the

collateral      source       rule.”            The    trial        court     denied

defendants’     motion      for     reconsideration.               The    Court     of

Appeals    affirmed       but     remanded      for   the     recalculation         of

damages.     Shinholster v Annapolis Hosp, 255 Mich App 339,

360; 660 NW2d 361 (2003).                 Defendants now appeal to this

Court.

                            II. STANDARD OF REVIEW

        Statutory interpretation is an issue of law that is

reviewed de novo.           People v Morey, 461 Mich 325, 329; 603

NW2d 250 (1999).

                                   III. ANALYSIS

        This Court’s primary task in construing a statute is

to   discern       and     give     effect       to   the        intent     of     the

Legislature.       Murphy v Michigan Bell Tel Co, 447 Mich 93,

98; 523 NW2d 310 (1994).              “The words of a statute provide


                                          6

‘the most reliable evidence of [the Legislature’s] intent .

. . .’”     Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596

NW2d 119 (1999), quoting United States v Turkette, 452 US

576,   593;   101   S   Ct   2524;    69    L    Ed   2d    246   (1981).     In

discerning legislative intent, a court must “give effect to

every word, phrase, and clause in a statute . . . .”                        State

Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142,

146; 644 NW2d 715 (2002).             The Court must consider “both

the plain meaning of the critical word or phrase as well as

‘its placement and purpose in the statutory scheme.’”                         Sun

Valley, supra at 237, quoting Bailey v United States, 516

US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).                           “The

statutory     language   must    be    read      and       understood   in    its

grammatical     context,     unless    it       is    clear   that   something

different was intended.”             Sun Valley, supra at 237.                “If

the language of a statute is unambiguous, the Legislature

must have intended the meaning clearly expressed, and the

statute must be enforced as written.”                 Id. at 236.

              A. Plaintiff’s Pre-Treatment Negligence

                             1. MCL 600.6304

       MCL 600.6304 generally provides that the trier of fact

in a tort action shall determine by percent the comparative

negligence of all those who are a proximate cause of the




                                      7

plaintiff’s   injury   and     subsequent     damages.    In   relevant

part § 6304 provides:

          (1) In an action based on tort . . . seeking
     damages for personal injury . . . or wrongful
     death involving fault of more than 1 person, . .
     . the court . . . 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,
     including each plaintiff . . . .
          (2) In determining the percentages of fault
     under subsection (1)(b), the trier of fact shall
     consider both the nature of the conduct of each
     person at fault and the extent of the causal
     relation between the conduct and the damages
     claimed.
                                 * * *

          (6)   If  an   action  includes  a   medical
     malpractice claim against a person or entity
     described in section 5838a(1), 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
     . . . .
          (b) If the plaintiff is determined to have
     fault under subsections (1) and (2) . . . the
     court shall determine whether all or part of a
     party’s share of the obligation is uncollectible
     from that party, and shall reallocate any
     uncollectible amount among the other parties
     . . . .
                                 * * *
          (8) As used in this section, “fault”
     includes an act, an omission, conduct, including
     intentional conduct, a breach of warranty, or a


                                   8

     breach of a legal duty, or any conduct that could
     give rise to the imposition of strict liability,
     that is a proximate cause of damage sustained by
     a party.[3]
     On the basis of this statute, defendants contend that

the trial court erred in not allowing the jury to consider

Shinholster’s        behavior   as      manifesting         comparative

negligence when she failed to regularly take her prescribed

blood pressure medication for at least a year before her

first visit to the emergency room.

     While the Court of Appeals acknowledged that § 6304,

on its face, requires a trier of fact to consider such

negligence, it nonetheless relied on inferences drawn from

this Court’s decision in Podvin v Eickhorst, 373 Mich 175;

128 NW2d 523 (1964), and authority from other states to

reach its holding that the statute did not control the

situation.

     The     Court    of   Appeals     erred,   in    our     judgment.

Subsection    6304(1)(b)   is   unambiguous     and   calls    for   the

trier of fact to assess by percentage “the total fault of



     3
         See, also, MCL 600.2959, which provides:
          In an action based on tort or another legal
     theory seeking damages for personal injury,
     property damage, or wrongful death, the court
     shall reduce the damages by the percentage of
     comparative fault of the person upon whose injury
     or death the damages are based . . . .



                                  9

all    persons    that   contributed       to   the   death   or   injury,

including      each   plaintiff,”   (emphasis     added),     as   long   as

that fault constituted a proximate cause of the plaintiff’s

injury and subsequent damage.4

       With regard to what cause constitutes proximate cause,5

in Parks v Starks, 342 Mich 443, 448; 70 NW2d 805 (1955),

we    quoted   with   approval   the      following   from    38   Am   Jur,

Negligence, § 55, p 703:

            “The proximate cause of an injury is not
       necessarily the immediate cause; not necessarily
       the cause nearest in time, distance, or space.
       Assuming that there is a direct, natural, and
       continuous sequence between an act and an injury,
       * * * the act can be accepted as the proximate
       cause of the injury without reference to its
       separation from the injury in point of time or
       distance.”
       Thus, under § 6304, if a defendant presents evidence

that would allow a reasonable person to conclude that a

plaintiff’s negligence constituted a proximate cause of her


       4
       Moreover, MCL 600.6304(6) expressly acknowledges that
a plaintiff may be determined “to have fault” in “a medical
malpractice claim . . . .”
       5
       See, also, Skinner v Square D Co, 445 Mich 153, 162-
163; 516 NW2d 475 (1994), and M Civ JI 15.01 which provides
the following definition of proximate cause:

            When I use the words “proximate cause” I
       mean first, that the negligent conduct must have
       been a cause of plaintiff’s injury, and second,
       that the plaintiff’s injury must have been a
       natural and probable result of the negligent
       conduct.



                                    10

injury and subsequent damage,6 the trier of fact must be

allowed to consider such evidence in apportioning fault.7

     With regard to the Court of Appeals and Justice CAVANAGH

and Justice WEAVER’S reliance, in their concurrence/dissents,

on out-of-state authority reaching a different conclusion

than our Legislature did on this issue, we presume that the

legislators were aware of those approaches and chose to

depart from them in establishing Michigan law.8


     6
       Because damage cannot arise on its own, but must flow
from an injury, we disagree with Justice CAVANAGH’S assertion
in his concurrence/dissent that the majority “subverts the
text of MCL 600.6304” by focusing on “plaintiff’s injury”
rather than “plaintiff’s damage.” Post at 3-4. Damage can
only be the result of an injury. That is, first an injury
to plaintiff must exist and the trier of fact must then
determine whether plaintiff constituted a proximate cause
of such injury before there is any need for the trier of
fact to focus on plaintiff’s damages. Thus, we believe we
are correct when we state at pp 10-11 that § 6304 applies
where plaintiff’s pre-treatment negligence constituted a
proximate cause of her “injury and subsequent damage.”
     7
       In her opinion, Justice WEAVER criticizes the majority
because it “does not offer any analysis regarding why it is
appropriate to consider plaintiff’s pretreatment negligence
as a proximate cause of her death, but simply states that
it may be considered.” Post at 4. However, on pp 9-10, we
analyze the language of § 6304 in support of this holding.
Such language is the only reason why it is "appropriate" to
consider pretreatment negligence.
     8
      In her opinion, Justice WEAVER asserts that “all the
other state courts that have considered the question
whether a patient’s own pre-treatment negligence could be
considered a proximate cause of the patient’s damages for
purposes of comparative negligence have ultimately decided
that it should not.”    Post at 4.     We simply note the
                                       (continued . . . .)


                             11

       Moreover, the Court of Appeals reliance on inferences

drawn from Podvin (the plaintiff’s negligence in causing a

car accident could not be cited as contributory negligence

for subsequent medical malpractice in treating car accident

injuries) is misplaced.         This case is not relevant because

it was decided at a time when any contributory negligence

barred a plaintiff’s lawsuit.            If it was ever relevant, it

stopped being so when this Court adopted pure comparative

negligence.     Placek v Sterling Hts, 405 Mich 638, 701; 275

NW2d    511   (1979).      Moreover,       to   the   extent   that   the

inferences    drawn     from   Podvin     are   inconsistent   with   MCL

600.6304, the statute must prevail.

       The Court of Appeals also erred by mischaracterizing

Shinholster’s conduct as merely creating the condition that

led her to seek treatment.               Decedent’s conduct may have


(continued . . . .)
obvious, to wit, no other state was interpreting the
specific language of Michigan law, MCL 600.6304. See also
Wyatt v United States, 939 F Supp 1402, 1412 (ED Mo, 1996)
(holding that under Missouri law, Mo Rev Stat 538.230,
which requires the trier of fact "[i]n any action against a
health care provider for damages for personal injury or
death on account of the rendering of or failure to render
health care services" to "apportion fault among . . .
parties," it was proper for the trial court to reduce the
plaintiff's medical malpractice damages in accord with the
plaintiff's own negligence that "substantially contributed
to initially cause" the reason for which the plaintiff
sought medical treatment).




                                   12

done more than that.              Her failure to properly take her

medications may in fact have constituted a proximate cause

of her death.9

                             2. Limited Remand

       Because the trial court ruled that not all decedent’s

pre-treatment        negligence     could     be    considered,      defendants

were       limited   to   submitting        evidence       that   decedent   was

comparatively negligent only from April 7 onward, when she

first visited the emergency room.                  Yet, it is apparent from

that testimony that, had a wider scope of questioning been

allowed, just as defendants’ expert testimony supported the

proposition      that     failure     for    ten    days    (April   7   through

April 16) to regularly take her medications constituted a

proximate      cause,10    it   may    well    have    supported      the    same



       9
       It is possible to hypothesize situations where a
plaintiff’s pre-treatment negligence will do nothing more
than create the condition leading the plaintiff to seek
treatment. In such a situation, the negligent practitioner
might be found to constitute a superseding cause that
produced an injury different in kind.     For example, if a
person negligently broke her leg and during surgery to set
the leg the doctor cut an artery causing her to bleed to
death, the decedent’s original negligence could be said to
have done no more than bring the plaintiff to the operating
table.   But, if the surgeon merely set the broken leg
negligently, such an injury would constitute a natural and
foreseeable result of the plaintiff’s original negligence.
       10
        One of defendants’ experts, Dr. Bradford Walters,
testified as follows:
                                                       (continued . . . .)


                                       13

(continued . . . .)
          Q.   Does Mrs. Shinholster have a duty to
     take her medication as prescribed?
         A.   She does.
                            * * *
         Q.   I want you to assume for this next
    question that as of April 7, 1995 and continuing
    through April 16th, 1995 when Mrs. Shinholster
    went into the hospital, I want you to assume that
    she did not take her Procardia as prescribed.
         A.   So assumed.
         Q.   I want you to assume she maintained her
    normal habit and routine regarding that, and she
    only took it when she didn’t feel well[.]
         A.   I will assume that.
         Q.   Assuming that to be true, do you have
    an opinion based upon a reasonable degree of
    medical certainty that Mrs. Shinholster’s failure
    to take the Procardia as prescribed from April 7
    through April 16, 1995 was a proximate cause of
    her stroke and ultimate death?
         A.   I think it was one of the reasons, yes.
    It was a proximate cause.
         Q.   Why would her failure to take her
    medication as prescribed be a proximate cause of
    her stroke and death?
         A.   One of the worst things that can happen
    to a patient who has high blood pressure is to
    take their medication intermittently.   The blood
    pressure comes down.   The medication wears off.
    The blood pressure soars up. The blood pressure
    comes down. If and when they take it again, it’s
    sort [of] like a hammer hit to the brain each
    time that happens.
         When blood pressure medications are taken on
    a regular basis there’s a much smoother lowering
    of blood pressure and you don’t get those spikes
    up and down and up and down.
                                      (continued . . . .)




                            14

conclusion for a greater period.         Accordingly, the trial

court clearly erred in precluding evidence made admissible

by § 6304, and this prevented defendants from receiving a

fair trial with regard to the apportionment of damages.

MCR 2.611(A)(1)(a).     Because the jury in this case has

already determined that defendants breached their standard

of care, a determination that I note defendants have never

appealed,11 I would reverse the judgment of the Court of



(continued . . .   .)
          Those    spike[s] up      and down can possibly
     cause what    happened to      Mrs. Shinholster and a
     stroke like   this . . . .
                             * * *
           Q.    So one of the things you have [a]
      problem with Betty Shinholster is she must not
      have been taking her meds as prescribed. Is that
      what you believe?
           A.   That’s what I believe.
           Q.   Do you believe that caused her death?
           A.   I believe it was one of several
      factors. Whether I can say it is the cause, the
      ultimate cause, would be nice for black and white
      purposes.   But nothing is quite that black and
      white. But I think it was one part of a jig saw
      puzzle, and that was definitely one piece.
           Q.   Let me ask you this, sir: If she had
      taken her blood pressure medication exactly as
      the doctor told her to do you believe she would
      be alive?
           A.   I think there was a good chance that
      she may have been.
      11
         While a remand for a determination of damages only
is   generally disfavored by this Court, see Garrigan v
                                        (continued . . . .)


                                  15

Appeals and remand this case for calculation of damages

only,    ordering    that      the    jury   be    permitted    to   consider

Shinholster’s       pre-treatment        negligence        in   apportioning

fault concerning plaintiff’s damages.

        While I do not dispute the correctness of the Chief

Justice's      analysis   in    her    concurrence/dissent       concerning

the prima facie elements of a tort cause of action, post at

8, I nonetheless believe that such analysis must be placed

within the proper context.            In a tort action, the plaintiff

bears    the    burden    of    proving      his   prima    facie    case   by


(continued . . . .)
LaSalle Coca-Cola Bottling Co, 373 Mich 485, 489; 129 NW2d
897 (1964), such remand is proper “when liability is
clear.” Burns v Detroit, 468 Mich 881; 658 NW2d 468 (2003),
citing Bias v Ausbury, 369 Mich 378, 383; 120 NW2d 233
(1963). See, also, Peisner v Detroit Free Press, Inc, 421
Mich 125, 129; 364 NW2d 600 (1984); Smith v Chippewa Co Bd
of Co Rd Comm’rs, 381 Mich 363, 381; 161 NW2d 561 (1968).
Here, neither at trial nor on appeal have defendants argued
that plaintiff’s pre-treatment negligence affected the
proper standard of care defendants owed to plaintiff.
Defendants   have   only  sought   to  admit   evidence  of
plaintiff’s pre-treatment negligence in an effort to offset
the extent of their liability.    That is, while defendants
acknowledge that they have breached the appropriate
standard of care, and, thus, are liable to some extent for
plaintiff’s injuries because they were “a” proximate cause
of such injuries, they also assert that plaintiff’s pre-
treatment negligence also was “a” proximate cause of
plaintiff’s injuries and, thus, have requested that such
negligence be considered by the jury in determining which
party is responsible for what percentage of proximate
causation.    Accordingly, given the particular facts and
circumstances of this case, I would remand for damages
only.




                                       16

demonstrating, as the Chief Justice has noted: (1) duty,

(2) breach, (3) proximate causation, and (4) damages.                           If

in   this     case,     plaintiff     had     been    permitted    to     present

evidence      demonstrating         defendant’s       breach—which      evidence

was later held to be inadmissible—a remand for an entirely

new trial might well be required, because such evidence

would, in fact, implicate whether defendant had breached a

duty, and, therefore, whether plaintiff had satisfied the

prima facie elements of a tort action.

       In the instant case, as in all tort actions, plaintiff

bore    the       burden      of    proving     her     prima     facie       case,

irrespective       of   her    own    negligent       conduct.    It    was    only

after the jury determined that plaintiff had satisfied this

burden,     and    that    defendants       were     liable,    that    the    jury

should have considered whether defendants satisfied their

burden of demonstrating that, despite their own liability,

they were not exclusively liable because plaintiff herself

was also negligent.                Because the challenged evidence in

this case has nothing to do with defendants’ conduct, and

thus nothing to do with whether plaintiff has satisfied her

prima facie tort case, I believe that the Chief Justice's

assertion that “[l]imiting the new trial to damages only

ignores     the       important      fact     that     proximate       cause     is




                                        17

essential to a plaintiff’s prima facie case,” is incorrect.

Post at 8.

     It   is   important   to    remember    that     the   conduct    of

plaintiff, not that of defendants, is at issue here, and

that the issue is whether defendants satisfied their burden

of   demonstrating   that,      although    liable,    they    are    not

exclusively liable for plaintiff’s injury.12                That is, we



     12
        In response to Chief Justice CORRIGAN’S assertion in
her concurrence/dissent that “defendants have preserved the
argument that a new trial on all issues is required because
the proximate cause issue affects liability,” post at 7 n
2, I note that in the quoted portion of defendants’ brief,
defendants only contend that, had plaintiff’s pre-treatment
negligence been considered by the jury, it may have found
that “such negligence was a proximate cause of the fatal
stroke” (emphasis added).       That is, defendants never
contend that they are not liable because, had plaintiff’s
pre-treatment negligence been considered by the jury, it
would have determined that they were not a proximate cause
of plaintiff’s injury, but they contend only that, had the
jury been able to consider such negligence, the extent of
their own liability would have been reduced.

     Further, I find the citations of MCL 600.2959 and M
Civ JI 11.01 unpersuasive in support of such position.
Post at 9-10.   Both the statute and the jury instruction
expressly address comparative fault, which generally comes
into play only during the damages phase of trial, after the
jury has determined that a plaintiff has proven her prima
facie tort case.    While, as the Chief Justice correctly
asserts, evidence may be presented throughout trial
regarding a plaintiff’s comparative fault, post at 11, such
evidence generally does not affect whether a defendant was
liable at all for a plaintiff’s injury, but rather the
extent   of his liability.       Where such evidence      is
sufficiently intertwined with liability, however, there is
absolutely no barrier to the appellate court remanding for
                                        (continued . . . .)


                                  18

are not considering whether plaintiff satisfied her initial

burden       of    proof    relating    to    whether    defendants     were   a

proximate cause of her injury and, thus, are liable.13

       Certainly, defendants could have argued that, had the

jury been permitted to consider plaintiff’s pre-treatment

negligence, it would not have found that defendants had

breached their standard of care at all or that defendants’

breach constituted a proximate cause of plaintiff’s injury.

However,          defendants     did    not    make     such    an    argument.

Instead, they argued only that evidence of plaintiff’s own

negligence should be considered by the jury in order to

determine the extent to which defendants were liable for

plaintiff’s         injury.      (Defendants     alleged:      “Had   the   jury

been        properly       instructed   [concerning       plaintiff’s       pre-


(continued . . . .)
an entirely new trial.      Because defendants themselves,
unlike the concurrence/dissent, have never argued that,
“had the jury been permitted to consider plaintiff’s pre-
treatment negligence, it would not have found that
defendants breached their standard of care or that
defendants’ breach was a proximate cause of plaintiff’s
injury,” I continue to believe that a remand for damages
only is warranted under the circumstances of this case.
       13
        A majority of this Court favors remanding this case
to the trial court, but there is no majority in favor of
any specific type of remand.         Three justices favor
remanding this case for an entirely new trial, one justice
favors remanding this case for a determination of damages
only, and three justices favor no form of remand at all.
It is regrettable that no further guidance can be offered
to the trial court.



                                        19

treatment negligence], it is likely that the percentage of

her comparative fault would have been determined at a much

higher level”).14




     14
       I am concerned that, if this Court were to accept
Chief Justice CORRIGAN’S assertion that this case be remanded
for an entirely new trial, we would be required to remand
for an entirely new trial in virtually all cases in which
not every single aspect of a plaintiff’s pre-treatment
negligence was fully considered at trial.        For instance,
assume a case in which a defendant-doctor is found to be
liable in a medical malpractice action in which he has
breached the appropriate standard of care and has been
determined to have been a proximate cause of the
plaintiff’s injury and subsequent damages. The trial judge
has allowed the defendant to present evidence regarding the
plaintiff’s own alleged negligence and the jury accordingly
has found the plaintiff to be ten percent liable for the
damages and the doctor to be ninety percent liable.
However, the defendant wanted evidence admitted at trial of
one additional, albeit slight, instance of the plaintiff’s
own negligence that the trial judge ruled inadmissible.
The defendant believes that, had this evidence been
admitted, the jury would have found the plaintiff to have
been twelve percent liable rather than ten percent and,
thus, the defendant to have been eighty-eight percent
rather than ninety percent liable.     If an appellate court
finds that the trial judge erred in ruling the additional
evidence of the plaintiff’s negligence inadmissible, should
a remand for an entirely new trial be required?          In my
judgment, it makes considerable sense, and represents a far
more prudent use of judicial resources to remand for a
redetermination of damages only in such a case, which would
allow the defendant to present the additional evidence and
the jury to determine whether the plaintiff’s percentage of
liability   should    be  increased,   and   the    defendant’s
percentage of liability decreased, accordingly.        Nothing,
of course, would prohibit an appellate court from remanding
for an entirely new trial in subsequent cases if the facts
require.




                              20

                B. Cap on Noneconomic Damages

     For the reasons stated in Jenkins, supra at ___, we

hold that the noneconomic damages cap found in MCL 600.1483

applies to a wrongful death action based on an underlying

claim of medical malpractice.

     MCL 600.1483 contains two caps on noneconomic damages

and provides:

          (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
     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.
     While defendants have not contested that, as a result

of her stroke, Shinholster satisfied § 1483(1)(a) and (b),




                                21

they and the Chief Justice contend that the higher damages

cap applies only if the injured person continues to suffer

one of the enumerated conditions set forth in § 1483 at the

time of judgment.               Post at 15-16.      Because Mrs. Shinholster

was dead at the time of judgment, defendants and the Chief

Justice        reason      that    the   higher     cap   cannot     apply.       In

support of their position, they rely upon the fact that the

statute specifically uses the present tense of verbs, i.e.,

“is” and “has,” and that the statute provides that the

lower        tier    is    to   apply    “unless,    as   the   result      of   the

negligence of 1 or more of the defendants, 1 or more of the

following           exceptions     apply    as    determined    by    the     court

pursuant to section 6304 . . . .”                   Post at 15-16.       Because

a trial court reduces damages pursuant to § 6304 only after

the jury has rendered its verdict, defendants and the Chief

Justice conclude that the present tense verbs in the statute

refer to that precise moment in time at which “the trial

court        makes        its   post-verdict      determination       concerning

whether the cap requires adjustment of the verdict.”                             Post

at 15.15        While the trial court noted that the Legislature



        15
        Thus, for example, assume that a jury renders a
$500,000 verdict at 5 PM on a Monday in favor of an injured
party who, at the time of such verdict, was alive and
clearly satisfied one of the enumerated higher cap injuries
                                       (continued . . . .)


                                           22

used the present tense words “is . . . hemiplegic,” it also

observed that the Legislature did not specify at which time

plaintiff must have sustained that condition for the higher

cap to apply.   The trial court disagreed with defendants’

construction of the statute and ruled:

          [T]he only sensible way to interpret the
     statute is to hold that the Legislature intended
     [the higher cap] to apply to people who had been
     rendered   cognitively  incapable,  quadriplegic,
     etc., from the accident in question.        Betty
     Shinholster met this condition here: as the jury
     found, she suffered the requisite injuries from
     the accident-- she endured these injuries in the
     several months she lay in a coma before she died.
     We thus hold that the higher, $500,000 cap
     applies.
The Court of Appeals agreed with the trial court:

          We construe the statute in accordance with
     the trial court’s ruling.    Indeed, the adoption
     of defendants’ position would lead to absurd and
     unfair results.     For example, a person who
     endured months of paraplegia caused by medical
     malpractice  but   died   of   an  unrelated  and
     independent cause before the court’s verdict
     adjustments would be subject to the lower cap,
     whereas a similar person who died a day after the
     court’s verdict adjustments would be subject to
     the higher cap.   We view the better approach to
     be that advocated by plaintiff and adopted by the
     trial court.   Under this approach, the point of

(continued . . . .)
of § 1483. However, later that evening, the injured party
dies. The next morning at 9 AM, the trial court, expecting
to grant damages pursuant to the higher tier, prepares to
enter his post-verdict determination as required by § 6304.
He is informed, however, that the injured party has died
the prior evening. In accordance with the Chief Justice’s
understanding, the judge would now be required to award the
decedent’s survivors damages pursuant to the lower tier.



                             23

       reference for determining whether the injured
       person fits within MCL 600.1483(1)(a), (b), or
       (c) is any time after and as a result of the
       negligent action. Therefore, because Shinholster
       was   rendered   incapacitated   by   defendants’
       negligence, the higher cap applies. [Shinholster,
       supra at 354.]
       We agree with the results reached by the lower courts

and    hold    that       §    1483     permits       a     plaintiff      to    recover   a

maximum       of    $500,000          in     medical        malpractice         noneconomic

damages       if,    as       a   result       of     the     defendant’s         negligent

conduct, the plaintiff at some point thereafter, and while

still living, suffered one of the enumerated conditions of

§ 1483.        We base this interpretation on several textual

indicators          contained           in    §      1483     and    other       pertinent

statutes.

       First,       this       interpretation          of    §     1483   is     consistent

with    the    text       of      the    statute      itself,       which,       as   noted,

provides that the lower tier applies “unless, as the result

of the negligence of 1 or more of the defendants, 1 or more

of the following exceptions apply . . . .”                                As long as, at

some    point        after         the       defendant’s         alleged         negligence

occurred and before the decedent’s death, it could be said

that, “as the result of the negligence of 1 or more of the

defendants . . . [t]he plaintiff is hemiplegic” or the

plaintiff “has permanently impaired cognitive capacity” or

“[t]here       has    been         permanent         loss     of     or    damage     to   a



                                               24

reproductive organ,” the higher damages cap tier applies.16

Not only is this understanding of § 1483, and specifically

its use of the present tense of verbs, consistent with this

Court’s decision in Michalski v Bar-Levav, 463 Mich 723,

732-733; 625 NW2d 754 (2001)(construing provisions of the


     16
        In asserting that, because the “death exception was
eliminated when the statute was amended in 1993 to its
current form,” this shows “that the Legislature intended to
exclude   death   from  the    exceptions  giving  rise  to
application of the higher cap,” post at 14, we believe that
the   Chief  Justice   accords   unmerited  weight  to  the
elimination of the “death exception” in interpreting the
current version of § 1483.      The 1986 version of § 1483
provided, in relevant 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.

Thus, under the former § 1483, which had a single-tiered
system of noneconomic damages cap, if a death occurred,
there was no cap on damages.    However, the current § 1483
contains a two-tiered system of noneconomic damages cap,
and no longer contains a “death exception.” By eliminating
the “death exception,” we believe the Legislature intended
nothing more than that one of the statute’s two caps apply
to limit noneconomic damages in every medical malpractice
action, including those filed under the wrongful death act.
We are unclear about the rationale relied upon by the Chief
JUSTICE in assuming that, because the Legislature eliminated
death as an outright exception to the application of any
cap, that it must have intended that death always fall
under the lower cap. We see no rationale for assuming such
a conclusion from the Legislature’s actions.




                              25

Handicappers Civil Rights Act, MCL 37.1101, which are also

written       in   the    present     tense,        yet    holding    that    the

“present”       tense     refers    to     events      existing      during   the

pendency of the plaintiff’s employment, when her cause of

action arose), but it also avoids the arguably incongruous

results about which the trial court and Court of Appeals

were concerned.17

       Second, we believe that the text of the wrongful death

act,    MCL    600.2922(1),      (2),    and    (6),      provides    additional

support for our understanding of § 1483.                     These provisions

state that “the personal representative of the estate of

the deceased person” be able to “maintain an action and

recover damages [against] the person who or the corporation

that    would      have   been     liable,     if    death   had     not   ensued

. . . .”           Subsection       2922(6)         expressly      permits    the

deceased’s estate to recover “reasonable compensation for



       17
        We note that defendants’ and the Chief Justice's
positions, taken to their inevitable conclusions, might
just as well require that, if the injured party is deceased
at the time of judgment, the higher cap tier would always
apply. This is because: (1) a deceased person always “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”; and (2)
if the injured person is deceased, “[t]here has [always]
been permanent loss of or damage to a reproductive organ
resulting in the inability to procreate.”



                                         26

the pain and suffering, while conscious, undergone by the

deceased person during the period intervening between the

time of the injury and death . . . .”                           Accordingly, while

we agree with the Chief Justice that the Legislature is

free to make “a policy decision that the survivors of dead

medical malpractice victims are entitled to lesser damages

than    are     living       medical     malpractice             victims        who      are

suffering       from    one    of      the     three       types        of    permanent

conditions enumerated in [§ 1483],” post at 14-15, we see

no indication in the statute that the Legislature, in fact,

made    such     a     decision;       rather,       we         believe      that        the

Legislature      made    a    quite    contrary          policy     decision           in   §

2922(1), (2), and (6) by permitting a decedent’s estate to

recover everything that the decedent would have been able

to recover had she lived.

       Third,    we     believe      that      the       interplay       between         the

wrongful      death    act,    particularly          §    2922(6),        and      §   1483

provides additional textual support for our understanding

of § 1483.           Subsection 2922(6) states that in a wrongful

death action “the court or jury may award . . . 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

. . . .”        (Emphasis added.)              Section 1483 provides that


                                         27

pain     and    suffering             resulting       from       certain         enumerated

injuries       are    compensable         at    a    higher       rate.          Thus,   the

Legislature          has    apparently          determined         that         “reasonable

compensation” for such pain and suffering may sometimes be

in excess of $280,000.                   However, by concluding that, no

matter    what       type    of       injuries       resulted      in       a    decedent’s

death,    survivors         in    a     wrongful         death    action         may    never

recover under § 1483’s higher cap if the decedent is dead

at the time of judgment, defendants and the Chief Justice

effectively           preclude          the         awarding           of       “reasonable

compensation” under § 2922(6) for the conscious pain and

suffering undergone by at least some decedents before their

death, where such pain and suffering resulted from one of

the enumerated injuries in § 1483.                             That is, we believe

that defendants and the Chief Justice overlook the express

directive of § 2922(6) that the jury may award “reasonable

compensation”          for        a     decedent’s            conscious          pain    and

suffering—compensation                  which,           in      the        Legislature’s

estimation,          may   sometimes       be       in    excess       of    $280,000     if

conscious       pain       and        suffering      results       from         an     injury

enumerated in § 1483.

       Finally, in asserting that the higher damages cap of §

1483 applies only where the plaintiff is suffering one of

the conditions enumerated in the statute at the time of


                                              28

judgment, we believe that defendants and the Chief Justice

give extraordinary and undue weight to the fact that the

Legislature has used the present tense of the verbs in §

1483(1)(a) and (b). Particularly, in concluding that “the

structure     of    §    1483(1)    indicates         that    the     Legislature

intended that an exception, if it is applicable, apply at

the time [of judgment],” post at 10, we note that the Chief

Justice fails to ensure that her own interpretation of §

1483 is consistent with the Legislature’s use of the verb

tense “has been” in § 1483(1)(c).                     This use of the past

tense of the verb indicates an intention by the Legislature

that an injured party need not always be alive at the time

of judgment for the higher cap to apply, but rather only

have suffered, at some point in the past as the result of a

defendant’s        negligent       conduct,          the     type     of   injury

enumerated in § 1483(1)(c).

       Further,     we    note     that,       had   the     Legislature    truly

intended that an injured party must continue to suffer the

higher tier injury at the time of judgment, it knew how to

make that intent specific, as shown by MCL 600.6311, infra,

in which the Legislature states that this provision is to

apply if “a plaintiff . . . is 60 years of age or older at

the time of judgment.”            (Emphasis added.)           Unlike § 6311, §

1483   does   not       provide   such     a    clear      temporal   framework.


                                         29

Moreover, had the Legislature intended that the term “is,”

as    used   in   §    6311,    mean      what   defendants    and    the    Chief

Justice assert it means in § 1483 (i.e., at the time of

judgment),        we   see     no   indication      in   §    6311    that    the

Legislature        qualified        the     term    within      the     temporal

framework of “at the time of judgment.”

       Defendants and the Chief Justice fail to explain why

the use of the present tense of verbs in § 1483(1)(a) and

(b)    demonstrates       that      the    Legislature       intended   that    a

plaintiff suffer from one of the enumerated conditions at

the time of judgment, rather than at the time the action is

filed, the jury is selected, opening statements are made,

the first witness takes the stand, closing statements are

made, at the beginning of jury deliberations, or at the

time at which the jury renders its verdict.18                         Defendants



       18
         Absent  specific  language   in   §  1483   stating
otherwise, and in light of the textual evidence set forth
in this section, we are simply not persuaded that, whether
the higher tier applies is to be viewed as a function of
wholly arbitrary facts and circumstances concerning the
specific time at which final judgment is rendered, such as
the nature and congestion of the trial court’s docket, the
existence of scheduling conflicts of the parties and their
attorneys, or the sheer length of a trial.       Nor can it
reasonably be dispositive of whether the higher tier
applies that a plaintiff has died shortly before or after
the end of trial, or shortly before or after the post-
verdict damages and cap determinations. See n 15. Nor do
we understand why delaying tactics in the justice process
                                        (continued . . . .)


                                          30

and the Chief Justice assert that the Legislature showed an

intent   to   set    the     temporal           framework      at     the    time     of

judgment by stating that the higher tier exception applies

“as determined by the court pursuant to section 6304 . . .

.”    However, in our judgment, references in § 1483 to §

6304 serve merely to clarify under which statute the court

is   authorized     and    required        to    reduce       the    damages     award

consistent with § 1483.          We do not read into this reference

a legislative intent to bar a plaintiff, whose decedent has

suffered while still alive and has suffered “as the result

of the negligence of 1 or more of the defendants, 1 or more

of the following [injuries],” from recovering pursuant to

the higher tier merely because the plaintiff’s decedent was

unfortunate enough to die before the post-verdict damages

determination.        Rather,        on    the     basis      of     the    statutory

language previously discussed, we believe that the better

interpretation      of    the   statute          is   that,         as    long   as   a

plaintiff suffers, while still living and as a result of a

defendant’s    negligent        conduct,          one     of        the     enumerated

conditions    set    forth      in    §     1483,       the    statute’s         higher

damages cap applies.



(continued . . . .)

should be incentivized in the perverse expectation that a

plaintiff may not survive trial and judgment. 




                                          31

     Because plaintiff in this case presented evidence from

which it could be rationally concluded that, “as the result

of the negligence of 1 or more of the defendants,” it could

have been said at some time before her death that she “is

hemiplegic, paraplegic, or quadriplegic [as a result of]

[i]njury    to   the   brain,”   or     “has   permanently   impaired

cognitive capacity,” we agree with the determination made

by the lower courts that the higher damages cap of § 1483

applies under the circumstances of this case.

                         C. MCL 600.6311

     While MCL 600.6306(1)(c), (d), and (e) provide that

all future damages awarded to a plaintiff be reduced to

gross present value,19     MCL 600.6311 creates an exception to




     19
          Section 6306 provides, in part:
          (1) After a verdict rendered by a trier of
     fact in favor of a plaintiff, an order of
     judgment shall be entered by the court . . . in
     the following judgment amounts:

                                 * * *

          (c)   All  future   economic damages, less
     medical and other health care costs, and less
     collateral source payments determined to be
     collectible under section 6303(5) reduced to
     gross present cash value.
          (d) All future medical and other health care
     costs reduced to gross present cash value.
                                                (continued . . . .)


                                  32

this general rule by stating, “Sections 6306(1)(c), (d),

and (e) . . . do not apply to a plaintiff who is 60 years

of age or older at the time of judgment.”   Thus, only when

a plaintiff is younger than sixty years of age at the time

of judgment, must the trial court reduce the plaintiff’s

future damages to present cash value.

     Plaintiff asserts that, for purposes of § 6311, the

term “plaintiff” in a wrongful death action is either the

personal representative or the decedent, based on the age

that the decedent would have been had she been alive at the

time of judgment.    On the other hand, defendants and the

Chief Justice contend that § 6311 is a limited exception

that does not apply to a wrongful death action because the

“plaintiff” in such an action is the estate, which cannot

have an age.   Post at 20.

     The trial court held that, for purposes of § 6311, the

term “plaintiff” refers to the decedent in a wrongful death

case, and that because Shinholster was sixty-one at the

time of her death, she necessarily would have been “60

years of age or older at the time of judgment.”    Thus, §

6306(1)(c), (d), and (e) do not apply.   Although the Court


(continued . . . .)
          (e) All future noneconomic damages reduced
     to gross present cash value.



                             33

of Appeals found that § 6311 is “ambiguous with regard to

the term ‘plaintiff’ as applied to wrongful death cases,”

Shinholster, supra at 357, that Court declined to resolve

the issue, holding that § 6311 applies because both the

personal representative and the decedent were or would have

been sixty years of age or older at the time of judgment:

          MCL 600.6311 specifically refers to “a
     plaintiff who is 60 years of age or older . . .”
     (emphasis    added).      Accordingly,   we   could
     potentially hold that because the plaintiff here—
     Shinholster’s personal representative—was over
     sixty,   the   MCL   600.6311  exception   applied.
     However, we note that MCL 600.6306 also uses the
     term “plaintiff” in referring to comparative
     negligence.      See MCL 600.6306(3)(“the total
     judgment amount shall be reduced . . . by an
     amount equal to the percentage of plaintiff’s
     fault”).   Clearly, this reference to “plaintiff”
     is not a reference to a personal representative
     in a wrongful death case, because the personal
     representative would not be the one evaluated for
     comparative negligence; instead, the decedent
     would be so evaluated.       We conclude that the
     statues at issue are essentially ambiguous with
     regard to the term “plaintiff” as applied to
     wrongful death cases.
          However, it is not necessary, in the instant
     case, to resolve the ambiguity in MCL 600.6311.
     Indeed, both the “plaintiff” (i.e., the personal
     representative and the person who brought the
     lawsuit) and the decedent in this case satisfied
     the MCL 600.6311 exception.      Accordingly, the
     trial court did not err by refusing to reduce the
     amount of future damages to present value.
     [Shinholster, supra at 356-357.]

     The doctrine of noscitur a sociis, i.e., that “a word

or phrase is given meaning by its context or setting,”

affords us some assistance in interpreting § 6311.   See G C


                             34

Timmis & Co v Guardian Alarm Co, 468 Mich 416, 420; 662

NW2d 710 (2003).        We apply this doctrine to include the

other provisions of Chapter 63 of the Revised Judicature

Act because the term “plaintiff” does not stand alone here,

and cannot be read in a vacuum.             Instead, “[i]t exists and

must be read in context with the entire act, and the words

and phrases used there must be assigned such meanings as

are in harmony with the whole of the statute . . . .”

Arrowhead Dev Co v Livingston Co Rd Comm, 413 Mich 505,

516;   322   NW2d    702   (1982).         “Although    a   phrase    or    a

statement may mean one thing when read in isolation, it may

mean    something     substantially        different     when      read    in

context.”    G C Timmis & Co, supra at 421.

       MCL 600.6305(2) provides, in part:

            In the event of death, the calculation of
       future damages shall be based on the losses
       during the period of time the plaintiff would
       have lived but for the injury upon which the
       claim is based.
Further, MCL 600.6306(3) provides, “If the plaintiff was

assigned a percentage of fault . . . the total judgment

amount shall be reduced . . . by an amount equal to the

percentage   of     plaintiff’s   fault.”       As     described     by   the

Court of Appeals, these “reference[s] to ‘plaintiff’ [are]

not . . . reference[s] to a personal representative [or an

estate] in a wrongful death case, because [neither] would



                                     35

. . .        be   the     one      evaluated        for   comparative      negligence;

instead, the decedent would be so evaluated.”                              Shinholster,

supra at 357.20                We agree with the trial court and hold

that, for purposes of § 6311, the term “plaintiff” refers

to the decedent, Mrs. Shinholster.

        However, our inquiry into the application of § 6311 in

the   instant          case     does    not    stop       there.     Rather,    §   6311

states that it applies if the plaintiff is “60 years of age

or    older       at    the     time     of   judgment.”           (Emphasis   added.)

Because the term “plaintiff” refers to the decedent in a

wrongful death action, and because Shinholster was sixty-

one at her death and at the time of judgment,21 we agree

with the trial court’s interpretation of § 6311, and hold

that, on remand, the trial court cannot reduce any future

damages awarded to plaintiff to their present value.

                                        IV. CONCLUSION

        Because § 6304(1) requires, without exception, that a

trier        of    fact       be    permitted        in    all     “personal   injury,

property          damage,       [and]    wrongful         death”    tort    actions   to

        20
        Further, no section in Chapter 63 of the Revised
Judicature Act uses the term “plaintiff” in reference to
the personal representative or the decedent’s estate.
        21
       At death, a deceased no longer continues to age, and
by that same token, we hold that, at death, a deceased does
not surrender her age or become without an age, but rather,
reasonably, for purposes of § 6311, retains her age.



                                              36

consider   the    conduct     of   all        parties    whose      conduct    has

constituted a proximate cause of plaintiff's damages, and

because,     on   the    basis     of     the      evidence      presented      by

defendants, reasonable minds could find that plaintiff’s

pre-treatment      negligence      here         constituted      “a    proximate

cause”—a foreseeable, natural and probable consequence—of

her fatal stroke, we remand this case to the trial court

for proceedings consistent with the opinions of this Court.

Further, based on our decision in Jenkins, where we held

that the medical malpractice noneconomic damages cap of §

1483    applies   to    a    wrongful         death   action     based    on    an

underlying    claim     of   medical          malpractice,     we     affirm   the

decisions of both lower courts and hold that the higher cap

of § 1483 applies when the injured person, at any time

while   still     living     and   as     a     result   of    a      defendant’s

negligent conduct, fits within the ambit of § 1483 (1)(a),

(b), or (c).        Finally, because the term “plaintiff,” as

used in § 6311, refers, for purposes of a wrongful death

action, to the decedent, and because Mrs. Shinholster, the

decedent, was sixty-one at her death and at the time of

judgment, we agree with the trial court’s interpretation of

§ 6311, and hold that the trial court cannot reduce any

future damages award to plaintiff to their present value.

                                         Stephen J. Markman


                                        37

CORRIGAN, C.J., and TAYLOR and YOUNG, JJ.

       We join in section III(A) and with the determination

in section III(B) that the medical malpractice cap of §

1483   applies   to   a   wrongful     death   action   based   on   an

underlying claim of medical malpractice.

                                     Maura D. Corrigan
                                     Clifford W. Taylor
                                     Robert P. Young, Jr.


CAVANAGH and KELLY, JJ.

       We join in section III(C) and concur in the result

only with regard to section III(B).

                                     Michael F. Cavanagh
                                     Marilyn Kelly

WEAVER, J.

       I join in sections III(B) and III(C).

                                     Elizabeth A. Weaver




                                 38

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


                           SUPREME COURT 



ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

      Plaintiff-Appellee,

v                                                      No. 123720

ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,

      Defendant-Appellant,

and

DENNIS ADAMS, M.D. AND MARY ELLAN
FLAHERTY, M.D.,

     Defendants.
_____________________________________

ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

      Plaintiff-Appellee,

v                                                      No. 123721

KATHERINE ADAMS, Personal Representative
Of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,

      Defendants-Appellants,

and

ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,

     Defendant.
_____________________________________
MARKMAN, J. (concurring).

        Although I agree fully with the majority analysis, I

write       separately   to    elaborate     on   my   views      concerning   §

II(A)(1) of the opinion.

                          I. PREVIOUS JURISPRUDENCE

        Not    only   does     the   clear   language        of   MCL    600.6304

support       the   majority    interpretation,        but    I   believe   that

this        interpretation      is   consistent        with       this   Court’s

previous jurisprudence concerning an original tortfeasor's

liability in light of subsequent medical malpractice.1                         In



        1
       I believe that the distinctions plaintiff, the trial
court, the Court of Appeals, and other courts have
attempted to draw between “pre-treatment” negligence and
“post-treatment” negligence are, not only without statutory
basis, but also irrelevant.     Why should a doctor who has
treated the plaintiff in the past be held less at fault for
his negligence than a doctor who has not treated the
plaintiff in the past?      Take, for example, the instant
case, where Dr. Normita Vicencio, approximately one year
before plaintiff’s fatal stroke, prescribed to plaintiff
medication to lower her blood pressure.         Assuming that
plaintiff   had   sought   additional   treatment   from   Dr.
Vicencio, instead of defendants, and assuming further that
Dr. Vicencio had acted in the same alleged negligent manner
as defendants, plaintiff’s alleged negligence would be
considered    “post-treatment”    negligence,    and,    thus,
admissible under both the lower courts’ and plaintiff’s
interpretation of § 6304. However, because defendants had
not treated plaintiff in the past, plaintiff’s alleged
negligence would be considered “pre-treatment” negligence,
and, thus, inadmissible under both the lower courts’ and
plaintiff’s interpretation of § 6304.             Accordingly,
defendants would be held more at fault because the trier of
                                         (continued . . . .)


                                        2

the context of medical malpractice, it has long been held

that    negligent          medical       treatment    of     an       injury      is

foreseeable and is ordinarily not a superseding cause that

cuts off the causal contribution of the act that caused the

injury.       In People v Townsend, 214 Mich 267; 183 NW 177

(1921), the defendant was driving drunk when he ran off the

road    and     hit   a    tree,   severely     lacerating      a     passenger’s

legs.     Although the passenger was immediately taken to the

hospital,       her       lacerations     became     infected       because       of

medical malpractice committed by the hospital’s doctors,

and she died twelve days later from blood poisoning.                            As a

result of this death, the defendant was charged with and

convicted       of    involuntary        manslaughter.          The       defendant

appealed his conviction, contending that his passenger’s

death     was    a    natural      and   probable    result,        not    of    the

defendant’s       drunk      driving,     but   rather     of     the     doctors’

negligence.       This Court disagreed and stated:



(continued . . . .)
fact would not be permitted to consider plaintiff’s “pre-
treatment” negligence in apportioning fault in relation to
determining plaintiff’s damages. Because I see no basis in
treating defendants any differently than Dr. Vicencio, I
cannot agree with the lower courts’ and plaintiff's
interpretation of § 6304.    Plaintiff’s alleged negligence
should be considered regardless of whether defendants had
treated plaintiff in the past.




                                          3

          “If a wound or other injury cause a disease,
     such as gangrene, empyema, erysipelas, pneumonia,
     or the like, from which deceased dies, he who
     inflicted   the   wound   or  other   injury   is
     responsible for the death. . . . He who inflicted
     the injury is liable even though the medical or
     surgical treatment which was the direct cause of
     the death was erroneous or unskilful, or although
     the death was due to the negligence or failure by
     the deceased to procure treatment or take proper
     care of the wound. . . . This rule is sometimes
     stated with the qualification that the wound must
     have been mortal or dangerous; but it is usually
     held that defendant is liable, although the wound
     was not mortal.”

          . . . Defendant cannot exonerate himself
     from . . . liability by showing that under a
     different or more skilful treatment the doctor
     might have saved the life of the deceased and
     thereby have avoided the natural consequences
     flowing from the wounds.       Defendant was not
     entitled to go to the jury upon the theory
     claimed unless the medical treatment was so
     grossly erroneous or unskilful as to have been
     the cause of the death, for it is no defense to
     show that other or different medical treatment
     might or would have prevented the natural
     consequences flowing from the wounds.

          The treatment did not cause blood poisoning;
     the wounds did that, and the most that can be
     said about the treatment is that it did not
     prevent blood poisoning but might have done so
     had it been different. [Id. at 278-279 (citation
     omitted).]

Accordingly, under Townsend, the original tortfeasor may be

liable   for   a   doctor’s   subsequent   negligence    where   such

negligence merely failed to prevent a result that was a

“natural   consequence[]      flowing   from”   such    tortfeasor’s

actions.   See also People v Bailey, 451 Mich 657, 679; 549



                                  4

NW2d       325   (1996)       (“In   the        medical   treatment     setting,

evidence         of    grossly       negligent       treatment     constitutes

evidence of a sole, intervening cause of death.                         Anything

less than that constitutes, at most, merely a contributory

cause of death, in addition to the defendant’s conduct.”).2

Where evidence exists in a medical malpractice action that

a doctor’s negligence was not the sole proximate cause of

the plaintiff’s injury, the trier of fact must be permitted

to     consider       other     proximate        causes   for    such    injury,

including the plaintiff’s own pre-treatment negligence.3




       2
       “The assumption of a duty to protect the decedent
while in defendant’s custody merely establishes a legal
basis for holding defendant negligent. The mere existence
of a duty does not automatically lead to the conclusion
that the decedent’s fault should not be considered” when
appointing fault.   Hickey v Zezulka (On Resubmission), 439
Mich 408, 448; 487 NW2d 106 (1992) (Opinion by RILEY, J.,
joined by three other Justices).
       3
         In permitting the trier of fact in a medical
malpractice case to consider a plaintiff’s negligence in
apportioning fault and in determining the extent of a
defendant’s liability, the majority is not altering the law
of this state regarding the application of comparative
fault in a tort action. See Brisboy v Fibreboard Corp, 429
Mich 540, 551-552, 556; 418 NW2d 650 (1988)(opinion by
CAVANAGH, J.) (affirming the jury’s determination that the
decedent’s smoking habit, as well as his exposure to the
defendant’s asbestos, were both proximate causes, fifty-
five and forty-five percent respectively, of the decedent’s
lung cancer and subsequent death, and remanding the case to
the trial court for the appointment of damages in
accordance with such determination); Hardy v Monsanto
Enviro-Chem Systems, Inc, 414 Mich 29, 40; 323 NW2d 270
                                       (continued . . . .)


                                           5

                           II. COMPARATIVE NEGLIGENCE

        In holding that in a medical malpractice action, the

trier       of   fact    should   not   be   permitted   to    consider   a

plaintiff’s pre-treatment negligence in apportioning fault,

the Court of Appeals failed to recognize that § 6304 is

predicated        upon    a   comparative     negligence      scheme   that

“reduces the amount of the plaintiff’s recovery, allocating

liability in proportion to fault,” Jennings v Southwood,

446 Mich 125, 131; 521 NW2d 230 (1994), rather than upon a

contributory negligence scheme that “act[s] as an absolute

bar to plaintiffs who were only slightly at fault,” Klinke

v Mitsubishi Motors Corp, 458 Mich 582, 607; 581 NW2d 272

(1998) (KELLY J., dissenting).4



(continued . . . .)
(1982) (holding that “it would be ‘anomalous’ to hold a
defendant liable for damages in excess of the amount
causally related to his negligence”); Placek v Sterling
Hts, 405 Mich 638, 661; 275 NW2d 511 (1979) (holding that
“‘[t]he doctrine of pure comparative negligence does not
allow one at fault to recover for one’s own fault, because
damages are reduced in proportion to the contribution of
that person’s negligence, whatever that portion is.’”
(Citation omitted.)
        4
       The authorities relied on by the Court of Appeals
have also sometimes been confused by the doctrines of
contributory and comparative negligence.      See Harding v
Deiss, 300 Mont 312, 318; 3 P3d 1286 (2000) (citing
contributory   negligence   cases   and    stating,   “Under
[comparative fault], in any case where the patient was
responsible for events that led to her hospitalization, the
treating physician would not be liable for negligent
                                        (continued . . . .)


                                        6

     The Court of Appeals stated:

          “It would be anomalous to posit, on the one
     hand, that a health provider is required to meet
     a uniform standard of care in its delivery of
     medical services to all patients, but permit, on
     the other hand, the conclusion that, where a
     breach of that duty is established, no liability
     may exist if the patient’s own preinjury conduct
     caused the illness or injury which necessitated
     the care.”

                                * * *

           [W]e conclude that the trial court did not
     err in ruling that the jury could not consider
     Shinholster’s potential negligence in causing the
     condition for which she sought medical treatment
     in the first place. Given the preventable nature
     of many illnesses, to accept a contrary position
     would allow many health-care professionals to
     escape liability for negligently treating ill
     patients.    [Shinholster v Annapolis Hosp, 255
     Mich App 339, 347-348; 660 NW2d 361 (2003),
     quoting Harvey v Mid-Coast Hosp, 36 F Supp 2d 32,
     38 (D Maine, 1999).]

Stemming from its concern that “‘no liability may exist if

the patient’s own preinjury conduct caused the illness or

injury which necessitated the care,’” or that if a trier of

fact was permitted to consider a plaintiff’s pre-treatment

negligence       in     apportioning         fault,      “many     health-care

professionals         [would]   escape       liability     for     negligently

treating   ill    patients,”     the        Court   of   Appeals    apparently

(continued . . . .)

treatment.” This is simply a misstatement of the doctrine

of comparative negligence. 





                                       7

believed that § 6304 set forth a contributory negligence

scheme that barred a plaintiff from recovering for injuries

resulting from a defendant’s negligence if the plaintiff

was   even     slightly      at      fault        for    such   injuries.       These

beliefs are unfounded because, as previously mentioned, §

6304 sets forth a comparative negligence scheme.                              Nothing

in    §   6304     states       or    implies            that   it   constitutes    a

contributory negligence scheme.                      By adopting a comparative

negligence scheme in § 6304, the Legislature recognized, as

this Court did in Placek v Sterling Hts, 405 Mich 638, 660;

275   NW2d     511       (1979),     that         such    doctrine    “most    nearly

accomplishes the goal of a fair system of apportionment of

damages    .   .     .   [by]   ‘truly        distribut[ing]         responsibility

according to fault of the respective parties.’”                           (Citation

omitted.)      The fact that a doctor negligently undertook to

treat an existing condition may be an important, and in

many cases the overriding, factor in the trier of fact’s

apportionment of fault in determining damages.5                         There is no



      5
       “[A]pplying the principles of comparative fault to a
medical malpractice action, a physician is liable only for
that   portion  of   the  plaintiff’s  damages   that   were
proximately caused by the physician’s negligence.”    Gray v
Ford Motor Co, 914 SW2d 464, 467 (Tenn, 1996) (holding that
the doctrine of comparative fault could properly be applied
to medical malpractice actions so as to require an
apportionment of fault between the estate of a decedent who
                                        (continued . . . .)


                                             8

reason to believe that a reasonable trier of fact will not

accord that circumstance as much weight and consideration

as it deserves in the particular case.                      However, there may

sometimes be additional factors that will also be relevant

in   the    apportionment   of    fault           in     determining      damages,

including    evidence   that     the        plaintiff’s          own   conduct   was

either negligent, grossly negligent, or even intentional.6

                    III. ADMISSIBILITY           OF   EVIDENCE

      The majority opinion states that “under § 6304, if a

defendant presents evidence that would allow a reasonable

person      to   conclude      that          a        plaintiff’s       negligence

constituted a proximate cause of her injury and subsequent

damages, the trier of fact must be allowed to consider such


(continued . . . .)
acted negligently in causing her original injury and a
physician who acted negligently in treating such injury).
See also Wyatt v United States, 939 F Supp 1402, 1412 (ED
Mo, 1996)(holding that under Missouri law, Mo Rev Stat
538.230, which requires the trier of fact “[i]n any action
against a health care provider for damages for personal
injury or death on account of the rendering of or failure
to render health care services” to “apportion fault among .
. . parties,” it was proper for the trial court to reduce
the plaintiff’s medical malpractice damages in accord with
the   plaintiff’s   own  negligence   which  “substantially
contributed to initially cause” the reason for which the
plaintiff sought medical treatment).
      6
       “This goal [of a fair apportionment of damages] is
not served; rather, it is thwarted when a slightly
negligent defendant is held liable for one hundred percent
of   the  damages   caused  principally  by  the   wrongful
intentional conduct of a plaintiff.” Hickey, supra at 449.



                                       9

evidence when appointing fault.”                        Ante at 10-11.       However,

the majority opinion does not elaborate regarding what type

of evidence may satisfy this standard.                            In my judgment,

only       where    the       defendant       presents       sufficient      relevant

evidence, which generally will be based on substantiated

scientific or other documented, reliable, and verifiable

findings, that a reasonable person could have foreseen that

his injury and subsequent damages were the “natural and

probable         consequence”      of       his    own    conduct,    will    §   6304

require      that       the    trier    of    fact       determine    whether     such

conduct       “contributed”            to    the        plaintiff’s    injury      and

subsequent damages, thereby offsetting to some degree the

defendant's exclusive liability.7

       Further, section 6304 does not require a trier of fact

to consider when the fault occurred, but merely whether the

fault      was     “a   proximate       cause      of    damage   sustained       by   a

party.”          That is, contrary to the beliefs of the trial

court, Court of Appeals, and plaintiff, § 6304 does not

apparently          distinguish         between          a    plaintiff’s         “pre-


       7
        I believe that the burden is upon the defendant to
present    relevant   evidence   substantiated   by  either
scientific or other documented, reliable, and verifiable
findings demonstrating that the plaintiff’s injury and
damages were a genuinely foreseeable, natural, and probable
consequence of the plaintiff's alleged negligence.




                                             10

treatment”        and       “post-treatment”       negligence       by    providing

that       only   the      latter    may   be    considered    in    apportioning

fault and determining damages.                   Rather, § 6304 specifically

requires that a trier of fact be permitted to consider the

negligence        of       “each    plaintiff,”    be    it   pre-treatment         or

post-treatment             negligence,     if     such    negligence        was     “a

proximate cause” of the plaintiff's injury and subsequent

damages.8

       Concern      has      been    expressed     at    argument    that,     if    a

plaintiff’s pre-treatment conduct may be considered under §

6304, this will enable a negligent doctor to avoid, at

least in part, liability for his malpractice.                       For example,

assume       that      a    plaintiff,     whose    doctor    has        negligently

failed to diagnosis her impending heart attack, files a

medical malpractice action against the doctor on the basis

       8
       “‘The pre-treatment health habits of a patient’ . . .
‘are germane to the issue of proximate cause . . . .’”
Bryant v Calantone, 286 NJ Super 362, 368; 669 A2d 286
(1996)(citations omitted).    “This does not mean, however,
that the patient’s poor health is irrelevant to the
analysis of a claim for reparation.    While the doctor may
well take the patient as she found her, she cannot reverse
the frames to make it appear that she was presented with a
robust vascular condition; likewise, the physician cannot
be expected to provide a guarantee against a cardiovascular
incident.    All that the law expects is that she not
mistreat such a patient so as to become a proximate
contributing cause to the ultimate vascular injury.”
Ostrowski v Azzara, 111 NJ 429, 445; 545 A2d 148 (1988).




                                           11

of such negligence.               At trial, the defendant attempts to

offset a portion of his fault by introducing evidence that

the plaintiff herself was a proximate cause of her heart

attack because she had eaten a bag of potato chips daily

for the past twenty years.                      In my judgment, the plaintiff’s

injuries       and   subsequent            damages           in    such     a    circumstance

would    be    far   “too    insignificantly                      related       to”    and     “too

remotely       affected”         by       such         conduct,       and        thus     wholly

inadequate to         establish “a proximate cause” relationship

between the plaintiff's conduct and her injury and damages.

See    Davis    v    Thornton,            384     Mich       138,    145;       180     NW2d     11

(1970).        It    is   simply           not         a   foreseeable,          natural,        or

probable consequence that such conduct will result in a

heart attack.         The instant case is clearly distinguishable

because plaintiff here failed to regularly take medication

that was prescribed by her doctor in order precisely to

prevent the specific fatal injury that she suffered.                                           That

is,    there    is    a   far     closer               and   more     direct          connection

between plaintiff’s negligent conduct and her injury, and

thus     I    believe     that            such     conduct          may     reasonably           be

considered by a trier of fact as “a proximate cause” of her

injury and subsequent damages.

        In    summary,      in        a     medical          malpractice              action     in

determining whether the plaintiff’s own negligence has been


                                                 12

“a proximate cause” of her injury and damages, I believe

that the trial court must ensure that the defendant has

sustained      its     burden     of   proof         in       presenting        relevant

evidence,      that     such     evidence           is       sustained     by     either

scientific or other reliable and verifiable findings, and

that    such    evidence        demonstrates             that       the    plaintiff’s

specific injury and damages were a genuinely foreseeable,

natural, and probable consequence of her negligence.                                   In

cases   such      as   this,     in    which        a        plaintiff’s      allegedly

negligent      conduct         relates         to        a     specific       diagnosed

condition,     combined         with   a       failure         to    comply     with    a

doctor's prescribed regimen for that specific condition, I

agree with the majority that a question of fact for the

jury regarding whether plaintiff’s own conduct constitutes

a sufficiently "proximate cause” of her own injury has been

presented.      Because in most instances I do not believe that

such    matters      bear   a    "proximate          cause"         relationship       to

injuries    and      damages     suffered       by       a     medical    malpractice

plaintiff, I do not view § 6304 as allowing defendants to

speculate about, or to engage in generalized investigations

concerning, a plaintiff's lifestyle, exercise habits, or

diet.




                                         13

                           IV. CONCLUSION

       Here, there was one indivisible injury, Shinholster’s

fatal stroke, allegedly caused by the separate, independent

acts of Shinholster herself and defendants.                      Had the injury

been caused by the separate, independent negligent acts of

defendants and another tortfeasor, the liability of each

would be determined by the fault attributable to each.                          See

Townsend, supra at 279.          Under § 6304, the principle is the

same     where    evidence       exists       that       the    negligence       of

Shinholster      herself   was    a   proximate      cause       of    her   fatal

stroke and subsequent damages.                 Further, because the jury

in     this   case   has    already          determined        that    defendants

breached their standard of care, a determination that I

note    defendants   have    not      appealed,      I    would       reverse   the

judgment of the Court of Appeals and remand this case for

calculation of damages only.

                                        Stephen J. Markman




                                       14

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


                           SUPREME COURT 



ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

      Plaintiff-Appellee,

v                                                      No. 123720

ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,

      Defendant-Appellant,

and

DENNIS ADAMS, M.D. AND MARY ELLEN
FLAHERTY, M.D.,

     Defendants.
_____________________________________

ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

      Plaintiff-Appellee,

v                                                      No. 123721

KATHERINE ADAMS, Personal Representative
Of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,

      Defendants-Appellants,

and

ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,

     Defendant.
_____________________________________
CORRIGAN, C.J. (concurring in part and dissenting in part).

       Although       I        agree       with       the      majority          that     the

noneconomic damages cap found in MCL 600.1483 applies to

wrongful death actions alleging malpractice and that a jury

is permitted in all “personal injury, property damage, or

wrongful   death”         tort          actions      to   consider        a     plaintiff’s

pretreatment negligence as comparative negligence to offset

a defendant’s fault (provided evidence has been admitted

that   would    allow          a    reasonable         person       to    conclude       such

negligence      was       “a       proximate         cause”    of     the       plaintiff’s

injury),   I    cannot         join       the     majority’s         treatment      of   the

remaining issues and respectfully dissent.

       First,     because               defendants          were      precluded          from

submitting      evidence           that    arguably          would       have    allowed   a

reasonable      person             to     find       that     Betty         Shinholster’s

pretreatment negligence of failing to regularly take her

prescribed      blood          pressure         medication          during       the     year

preceding her fatal stroke was a proximate cause of her

fatal stroke, I would reverse and remand for a new trial on

all issues, rather than a trial on damages only.

       I would further hold that the higher damages cap found

in MCL 600.1483 does not apply to wrongful death actions

alleging   medical         malpractice.                MCL    600.1483(1)          provides



                                                2

that the lower cap applies unless one of the enumerated

exceptions applies.         Death is not an enumerated exception.

This Court is not free to question the Legislature’s policy

choices; rather, the statutory language must be applied as

written.

       Finally, I would hold that the jury’s award of future

damages should have been reduced to present value pursuant

to MCL 600.6306.          MCL 600.6311 provides that the reduction

to present value does not apply to “a plaintiff who is 60

years of age or older at the time of judgment.”                        I believe

that   MCL   600.6311     cannot    apply      in    wrongful        death   cases

because, in such cases, the true “plaintiff” is the estate,

which is not a person and does not have an “age.”

                                I. ANALYSIS

                A. A NEW TRIAL     ON   ALL ISSUES   IS   REQUIRED

       Although     I   agree   with     the   majority       that    decedent’s

pretreatment negligence is a matter properly submitted to

the jury, I do not agree that the new trial should be

limited to damages only.                Because of the trial court’s

ruling that all decedent’s pretreatment negligence could

not be considered, defendants were limited to submitting

evidence     that   decedent     was     comparatively         negligent     from

April 7 onward, when she first visited the emergency room.

Yet, it is apparent from that testimony that had a wider


                                        3

scope    of       questioning   been   allowed,   just   as    defendants’

expert testimony supported the proposition that her failure

for   ten     days    (April    7   through    April   16)    to   take   her

medications was a proximate cause,1 it surely would have


              1
               One of defendants’ experts, Dr. Bradford
        Walters, testified as follows:
             Q.   Does Mrs. Shinholster have a duty to
        take her medication as prescribed?
              A.      She does.
                                       * * *
             Q.   I want you to assume for this next
        question that as of April 7, 1995 and continuing
        through April 16th, 1995 when Mrs. Shinholster
        went into the hospital, I want you to assume that
        she did not take her Procardia as prescribed.
              A.      So assumed.
             Q.   I want you to assume she maintained her
        normal habit and routine regarding that, and she
        only took it when she didn’t feel well[.]
              A:      I will assume that.
             Q.   Assuming that to be true, do you have
        an opinion based upon a reasonable degree of
        medical certainty that Mrs. Shinholster’s failure
        to take the Procardia as prescribed from April 7
        through April 16, 1995 was a proximate cause of
        her stroke and ultimate death?
             A.   I think it was one of the reasons, yes.
        It was a proximate cause.
             Q.   Why would her failure to take her
        medication as prescribed be a proximate cause of
        her stroke and death?
             A.   One of the worst things that can happen
        to a patient who has high blood pressure is to
        take their medication intermittently.   The blood
        pressure comes down.   The medication wears off.
        The blood pressure soars up. The blood pressure
                                          (continued . . . .)


                                       4

supported   the   same   conclusion     for   a   greater   period-the

previous year.     Accordingly, the trial court clearly erred

in precluding evidence made admissible by MCL 600.6304 and

this prevented defendants from receiving a fair trial.2            MCR



(continued . . . .)
     comes down. If and when they take it again, it’s
     sort [of] like a hammer hit to the brain each
     time that happens.
          When blood pressure medications are taken on
     a regular basis there’s a much smoother lowering
     of blood pressure and you don’t get those spikes
     up and down and up and down.
          Those spike[s] up           and down can possibly
     cause what happened to           Mrs. Shinholster and a
     stroke like this. . . .
                               * * *
          Q. So one of the things you have [a] problem
     with Betty Shinholster is she must not have been
     taking her meds as prescribed. Is that what you
     believe?
            A.    That’s what I believe.
            Q.    Do you believe that caused her death?
          A.   I believe it was one of several
     factors. Whether I can say it is the cause, the
     ultimate cause, would be nice for black and white
     purposes.   But nothing is quite that black and
     white. But I think it was one part of a jig saw
     puzzle, and that was definitely one piece.
          Q.   Let me ask you this, sir: If she had
     taken her blood pressure medication exactly as
     the doctor told her to do you believe she would
     be alive?
          A.   I think there was a good chance that
     she may have been.
     2
       I further note that, although Justice MARKMAN argues,
ante at 16 and n 11, that defendants have not argued that a
                                       (continued . . . .)


                                 5

(continued . . . .)
new trial on all issues is required, defendants have
preserved this issue on appeal.    Defendants preserved the
issue at trial by objecting to the trial court’s refusal to
admit   evidence  regarding   the  decedent’s   pretreatment
negligence. Defendants also objected to the trial court’s
modified   jury   instruction   regarding   the   decedent’s
comparative negligence, arguing that the jury should have
been able to consider all of the decedent’s conduct.

     On appeal, defendants again preserved the argument
regarding liability and proximate cause.         Issue I of
defendants’ brief argues that “defendants were denied a
fair trial by the trial court’s instruction on comparative
negligence,   which   improperly    restricted   the   jury’s
consideration and proper allocation of the decedent’s
comparative fault.”     Defendants argued that the trial
court’s limitation of evidence regarding the decedent’s
comparative negligence, and the resulting modified jury
instruction, “denied [defendants’] right to have their
responsibility determined in accordance with the facts and
the law, and for this, they must be granted a new trial.”
Finally, defendants argued that defendants “presented
expert   testimony   supporting   their   claim   that   [the
decedent’s] persistent failure or refusal to comply with []
clearly communicated medical advice was a proximate cause
of [the decedent’s] death. The trial court’s instruction,
however,   prevented   the   Jury   from   considering   this
negligence on [the decedent’s] part as a cause of her
injury.”

     On appeal to this Court, defendants also argued that a
new trial was required because the trial court improperly
limited evidence of comparative negligence, thus precluding
the jury from considering all evidence regarding proximate
cause:

          The jury should have been allowed to
     consider whether the injury was proximately
     caused by the separate, independent act of the
     plaintiff's decedent . . . . If the stroke was
     caused by the separate and independent negligent
     acts of these doctors or even another tortfeasor
     . . . , the liability of each would be determined
     by the fault attributed to each. . . .
                                        (continued . . . .)



                              6

2.611(A)(1)(a).     New trials limited only to damage issues

are disfavored.     See Burns v Detroit, 468 Mich 881; 658

NW2d 468 (2003); Garrigan v LaSalle Coca-Cola Bottling Co,

373 Mich 485, 489; 185 NW2d 97 (1964).

      More importantly, the jury must make a determination

of   liability   (including   comparative   fault),   taking   into

account the improperly excluded evidence; thus, a new trial

limited to damages only would not be appropriate.         Whether

defendants contested the jury’s finding that the standard

of care was breached is irrelevant.         In order to establish

a prima facie case, plaintiff must prove: (1) a breach of

the standard of medical care; (2) injury; (3) proximate

cause—a definitive legally recognized linkage between the



(continued . . . .)

                                 * * *

           Based on the evidence that was presented,
      and further evidence that could have been
      presented, it can only be concluded that a jury
      could have found that the decedent was negligent
      prior to April 7, 1995 and that such negligence
      was a cause of the fatal stroke.        The trial
      court’s limitation on the admission of evidence
      and its instructions to the jury were erroneous
      and inconsistent with substantial justice and not
      harmless error.

     Thus, defendants have preserved the argument that a
new trial on all issues is required because the proximate
cause issue affects liability, as well as the argument
that, in the alternative, their damages should be reduced.



                                 7

breach and the injury; and (4) damages.                   Cox v Flint Bd of

Hosp Managers, 467 Mich 1, 10; 651 NW2d 356 (2002).                        Simply

proving that there was a breach of the standard of care,

without more, does not prove liability.                      A breach of the

standard of care is only relevant if the trier of fact

determines that that breach is a proximate cause of the

plaintiff’s     injury.          It    is     entirely       possible      for     a

defendant to admit negligence and still argue there is no

liability    because      the    negligence      was     not    the   proximate

cause of the injury.            Here, defendants were precluded from

offering evidence that any breach of the standard of care

was not the proximate cause of the decedent’s injury, given

her     pretreatment      negligence.           Had    the      evidence     been

presented, the jury could reasonably have concluded that

even if defendants had breached the standard of care, they

still    were   not    liable        because     any   breach      was     not     a

proximate cause of the decedent’s injuries.                      Therefore, a

new trial on all issues, including liability, is necessary.

Limiting    the     new      trial    to     damages     only     ignores        the

important    fact     that    proximate        cause   is    essential      to    a

plaintiff’s prima facie case, and improperly conflates two

separate and necessary elements of liability:                     of a breach




                                        8

of a standard of care and a showing that that breach was a

proximate cause of the injury.3

     In fact, under our statutory scheme, the issues of

liability     and    damages,   as    they    relate       to   comparative

negligence,     are     inextricably       linked.          MCL     600.2959

provides:




     3
       In fact, this view is supported by the standard jury
instruction regarding the burden of proof for malpractice
cases. M Civ JI 30.03 provides:

          The plaintiff has          the     burden   of    proof    on
     each of the following:

          a.   that the defendant was professionally
     negligent in one or more of the ways claimed by
     the plaintiff as stated in these instructions

          b.        that the plaintiff sustained injury and
     damages

          c.    that the professional negligence or
     malpractice of the defendant was a proximate
     cause of the injury and damages to the plaintiff

          Your verdict will be for the plaintiff if
     the defendant was negligent, and such negligence
     was   a  proximate   cause   of  the plaintiff’s
     injuries, and if there were damages.

          Your verdict will be for the defendant if
     the defendant was not professionally negligent or
     did not commit malpractice, or if the defendant
     was   professionally  negligent  or   did   commit
     malpractice but such professional negligence or
     malpractice was not a proximate cause of the
     plaintiff’s injuries or damages, or if the
     plaintiff was not injured or damaged.    [Emphasis
     added.]



                                     9

           In an action based on tort or another legal
      theory seeking damages for personal injury,
      property damage, or wrongful death, the court
      shall reduce the damages by the percentage of
      comparative fault of the person upon whose injury
      or death the damages are based as provided in
      section 6306. If that person's percentage of
      fault is greater than the aggregate fault of the
      other person or persons, whether or not parties
      to the action, the court shall reduce economic
      damages by the percentage of comparative fault of
      the person upon whose injury or death the damages
      are based as provided in section 6306, and
      noneconomic   damages  shall   not  be   awarded.
      [Emphasis added.]

In addition, M Civ JI 11.01, the standard jury instruction

regarding comparative negligence, provides:

           The total amount of damages that the
      plaintiff would otherwise be entitled to recover
      shall be reduced by the percentage of plaintiff’s
      negligence that contributed as a proximate cause
      to [his/her] [injury/property damage.]

              This is known as comparative negligence.

           (The plaintiff, however, is not entitled to
      noneconomic damages if [he/ she] is more than 50
      percent at fault for [his/ her] injury.)

In    other    words,   the   standard   jury   instruction   simply

reduces MCL 600.2959 to its mathematical equivalent:              in

order for the plaintiff or the decedent’s fault to be more

than the aggregate sum of the fault of all other applicable

persons, the jury must place the plaintiff’s fault at more

than fifty percent.

      Thus, both MCL 600.2959 and M Civ JI 11.01 assume that

the    jury    has   properly    heard   all    evidence   regarding


                                  10

liability    and   reached        a   determination     of   fault    before

damages can be assessed.              If, during the trial, the jury

was     improperly        precluded      from     considering        evidence

regarding the decedent’s comparative negligence, it follows

that the jury’s determination of liability is flawed.                     If

this determination of liability is flawed, it is impossible

to ascertain the correct amount of damages.                  Therefore, I

do not believe that it is possible to separate the issues

of liability and damages, and believe a new trial on all

issues is required.           I would reverse the judgment of the

Court of Appeals and remand this case for a new trial.

                     B.    THE LOWER DAMAGES CAP APPLIES

        For the reasons stated in Jenkins v Patel, 471 Mich

____; ___ NW2d ___ (2004), I agree with the majority that

the noneconomic damages cap found in MCL 600.1483 applies

to wrongful death actions alleging medical malpractice.                    I

cannot agree, however, that the higher tier of the damages

cap applies to such cases.             Instead, I would hold that the

lower    tier   applies      to    wrongful     death   actions   alleging

medical malpractice.

        MCL 600.1483(1) provides:

             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


                                       11

    $280,000.00   unless,   as the   result   of  the
    negligence of 1 or more of the defendants, 1 or
    more of the following exceptions        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. [Emphasis added.][4]




    4
       In the former version of § 1483, a one-tiered cap
included “death” as an exception to the then-$225,000 cap:

         (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.
         (b)   There has been an intentional tort.
         (c) A foreign object was wrongfully left in
         the body of the patient.
         (d)   The injury involves the reproductive
         system of the patient.
                                     (continued . . . .)


                              12

        As   an     initial    matter,     MCL     600.1483(1)      requires     the

trial    court       to     determine    whether      one    of    the    statutory

exceptions, and thereby the higher cap, applies.                               Here,

however, the jury was improperly instructed to return a

special      verdict        that   required       answers    to    the    following

questions:           “Did     [the      decedent]       suffer          hemiplegia,

paraplegia,          or     quadriplegia         resulting    in    a    total    or

permanent functional loss of one or more limbs caused by

injury       to    the    brain?”    and     “Did     [the    decedent]     suffer

permanently          impaired      cognitive        capacity       rendering     her

incapable of making independent, responsible life decisions

and permanently incapable of independently performing the

activities of normal, daily living?”                         The jury answered

“yes” to both questions, and the trial court determined

that the higher, $500,000 cap was therefore applicable.

        These questions should not have been submitted to the

jury because the applicability of § 1483 is a question for


(continued . . . .)
                  (e)   The discovery of the existence of the
                  claim   was  prevented   by  the   fraudulent
                  conduct of a health care provider.
             (f)   A limb or organ of the patient was
        wrongfully removed.
             (g)          The patient has lost a vital bodily
        function.           [1986 PA 178, effective October 1,
        1986.]



                                           13

the court.         I would, therefore, take this opportunity to

clarify that the question of the application of § 1483 is

solely an issue for the trial court, not the jury.

       Further, I believe that the lower tier damages cap of

§     1483    applies     in     wrongful       death      actions     alleging

malpractice.        In any wrongful death action, the plaintiff

is seeking to recover for the decedent’s death, and death

is not one of the statutory exceptions giving rise to the

application of the higher cap.                 This Court does not have

the authority to create an exception the Legislature has

not included in the statute.             Had the Legislature wished to

include negligence causing death as an exception, it could

have done so.

       In fact, it did do so in the previous version of the

statute, but this death exception was eliminated when the

statute was amended in 1993 to its current form.                       1993 PA

78, effective October 1, 1993.                The history of the current

version of § 1483 indicates that the Legislature intended

to exclude death from the exceptions giving rise to the

application of the higher cap.                 Although death was one of

the    exceptions       enumerated     in    the   prior     version    of   the

statute,      it   is    conspicuously        absent    from    the    present

version of the statute.           The Legislature apparently made a

policy       decision     that   the        survivors   of     dead    medical


                                       14

malpractice victims are entitled to lesser damages than are

living medical malpractice victims who are suffering from

one of the three types of permanent conditions enumerated

in the statute.          This choice makes sense because it is not

the surviving, permanently, and severely injured patient

who is recovering damages in a wrongful death action, but

the patient’s relatives or other survivors who have not

suffered       from   these    permanent         conditions.       Further,    in

enacting       this   aspect       of     tort    reform    legislation,      the

Legislature could well have chosen a policy that would help

to limit the cost of malpractice insurance.                         Whether one

agrees    with    such    policy        decisions,       those    decisions    are

solely within the Legislature’s authority to make.                            This

Court    may    not   question      the     wisdom    of   the    Legislature’s

policy     choices;      rather,        this     Court     must    enforce     the

statutory language as written.

        Finally, the structure of § 1483(1) indicates that the

Legislature       intended         that     an     exception,       if   it     is

applicable, apply at the time that the trial court makes

its postverdict determination concerning whether the cap

requires       adjustment     of    the    verdict.        First,    §   1483(1)

imposes the $280,000 cap unless “1 or more of the . . .

exceptions apply as determined by the court pursuant to

section 6304 . . . .”               Section 6304(5), in turn, directs


                                          15

the trial court to “reduce an award of damages” as required

by the limitations set forth in § 1483(1).                           This language

supports      the        conclusion       that      the     exception        must       be

applicable at the time the verdict is adjusted by the trial

court.      Second, the language of subsections 1(a) and (b) of

the cap statute, § 1483, is in the present tense (“[t]he

plaintiff is hemiplegic”; “[t]he plaintiff has permanently

impaired cognitive capacity”), clearly requiring that the

enumerated conditions currently exist.                        Here, at the time

of    the     postverdict              decision      regarding        the      amount

recoverable, the decedent would not have been described as

someone who was paraplegic or someone who had a permanently

impaired     cognitive          capacity;        rather,    the     decedent       would

have only been described as deceased.

      For the same reasons stated in Jenkins, supra at ___,

applying     the        lower   damages       cap   does     not    frustrate        the

purpose of MCL 600.2922(6), which provides that the court

or   jury    in     a    wrongful       death     action     “may    award     .    .    .

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

. . . .”           (Emphasis added.)                As we noted in           Jenkins,

applying     the        lower   damages       cap   to     limit    the    amount       of

actual recovery by the plaintiff does not in any way limit


                                           16

the amount of the jury’s award.                   The jury or court may

still    award    whatever    amount       it   concludes       is   reasonable

under MCL 600.2922(6); that amount, however, is subject to

reduction under MCL 600.1483.

        Therefore, because MCL 600.1483 does not include death

as one of the enumerated exceptions to the lower damages

cap, and because the statutory syntax suggests that the

plaintiff must currently fall into one of the enumerated

exceptions       at   the    time    of     the        postverdict     recovery

determination, I believe that the lower tier damages cap

applies     in    wrongful     death        actions        alleging     medical

malpractice.

           C. MCL 600.6311 DOES NOT APPLY         TO   WRONGFUL DEATH ACTIONS

        MCL 600.6306 provides, in relevant part:

             (1) After a verdict rendered by a trier of
        fact in favor of a plaintiff, an order of
        judgment shall be entered by the court. Subject
        to section 2959, the order of judgment shall be
        entered against each defendant, including a
        third-party defendant, in the following order and
        in the following judgment amounts:

                                    * * *

             (c)   All  future   economic damages, less
        medical and other health care costs, and less
        collateral source payments determined to be
        collectible under section 6303(5) reduced to
        gross present cash value.

             (d) All future medical and other health care
        costs reduced to gross present cash value.



                                     17

           (e) All future noneconomic damages reduced
      to gross present cash value.

                                 * * *

           (2) As used in this section, “gross present
      cash value” means the total amount of future
      damages reduced to present value at a rate of 5%
      per year for each year in which those damages
      accrue, as found by the trier of fact as provided
      in section 6305(1)(b).

MCL   600.6311,      however,    provides         an    exception      to    the

requirement     in   MCL   600.6306      of   a    reduction      to   present

value:

           Sections 6306(1)(c), (d), and (e), 6307, and
      6309 do not apply to a plaintiff who is 60 years
      of age or older at the time of judgment.

      Here, the trial court ruled that in wrongful death

cases,   the    “plaintiff”     referred      to       in   §   6311   was   the

decedent.      Because the decedent was over age sixty at the

time of judgment, the trial court held that § 6311 applied.

The Court of Appeals declined to determine whether § 6311

applied to the decedent or to the personal representative

because both the decedent and the personal representative

were over age sixty; therefore, the Court held that § 6311

applied in any event.

      I believe that the exception does not apply in the

case of a decedent: it applies only to a plaintiff who “is

60 years of age or older at the time of judgment.”                      At the

time of judgment in a wrongful death action, the decedent


                                   18

is   dead.              Moreover,          the        decedent        is     not       generally

recognized as the “plaintiff” in a wrongful death action.

        At    common      law,       a    cause        of    action        did    not    survive

death.            As     we    noted        in     Hawkins       v     Regional          Medical

Laboratories,            PC,     415      Mich        420,   428-429;        329       NW2d    729

(1982),       “under          common        law,        [causes        of        action]      were

terminated by the death either of the person injured or the

tortfeasor.            1846 Rev Stats, ch 101, § 5.”                        The Legislature

subsequently            changed          the     common-law           rule        through     the

wrongful death provisions, allowing causes of actions to

survive death through the creation of a “new” plaintiff,

the estate.            The estate is then represented by the personal

representative:                MCL       600.2922(2)         provides        that       “[e]very

action under this section [the wrongful death provision]

shall    be       brought      by,       and     in    the     name    of,       the    personal

representative            of     the      estate        of     the    deceased          person.”

Indeed, the named plaintiff in the instant case is “Estate

of      Betty           Jean      Shinholster,”                 “by”         the        personal

representative.

        Section 2922(2) does not compel the conclusion that

the “plaintiff” in a wrongful death action is the personal

representative.               Rather, § 2922(2) simply requires that the

action       be        brought       “by”        and     “in     the        name       of”    that

representative.               The true plaintiff remains the decedent’s


                                                 19

estate.    Those who are entitled to share in the proceeds of

a   judgment     obtained        in     the        wrongful       death    action      are

enumerated     in     MCL      600.2922(3),          and   include        relatives,     a

spouse’s children, and devisees and beneficiaries.                                  These

persons    can      be   relevant       only        because       they    all    may    be

entitled to a portion of the decedent’s estate.                                 Unlike a

living person, an estate does not have an “age”; therefore,

§ 6311 cannot apply to an estate.                       Because § 6311 does not

apply to estates, it cannot be applied in wrongful death

actions.

                                       II.     CONCLUSION

      I    agree      with       the    majority           that     the     clear      and

unambiguous language of MCL 600.6304(1) and MCL 600.2959

requires     that        a     jury     is         permitted       in     all    medical

malpractice actions to consider a plaintiff’s pretreatment

negligence       as          comparative           negligence        to     offset       a

defendant’s fault, provided evidence has been admitted that

would allow a reasonable person to conclude such negligence

was “a proximate cause” of the plaintiff’s injury.                                  I do

not agree, however, that a new trial should be limited to

damages only; rather, I would reverse and remand for a new

trial on all issues.

      Further, although I agree that the noneconomic damages

cap   of   MCL     600.1483       applies          to   wrongful        death    actions


                                             20

alleging   medical   malpractice,     I   do    not   agree   that   the

higher tier applies in such cases.             Instead, I would hold

that the lower cap of MCL 600.1483(1) applies.

     Finally,   I    would   hold     that     MCL    600.6311,   which

provides that the reduction to present value does not apply

to “a plaintiff who is 60 years of age or older at the time

of judgment,” cannot apply in wrongful death cases, because

in such cases the true “plaintiff” is the estate, which is

not a person and does not have an “age.”

     Therefore, I would reverse the decision of the Court

of Appeals and remand for a new trial.

                                    Maura D. Corrigan
                                    Clifford W. Taylor
                                    Robert P. Young, Jr.




                                21

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


                             SUPREME COURT 


ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

        Plaintiff-Appellee,

v                                                        No. 123720

ANNAPOLIS HOSPITAL, assumed name for,
OAKWOOD UNITED HOSPITALS, INC.,

        Defendant-Appellant,

and

DENNIS ADAMS, M.D. AND MARY ELLEN
FLAHERTY, M.D.,

     Defendants.
_______________________________

ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

        Plaintiff-Appellee,

v                                                        No. 123721

KATHERINE ADAMS, Personal Representative
of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,

        Defendants-Appellants,

and 


ANNAPOLIS HOSPITAL, assumed name for,

OAKWOOD UNITED HOSPITALS, INC., 


     Defendant. 

 _______________________________ 

CAVANAGH, J. (concurring in part and dissenting in part).


        I agree with the majority that MCL 600.6311 applies in

this case and join that portion of the lead opinion in

full.      With respect to the applicability of the medical

malpractice noneconomic damages cap, I concur only in the

result because I remain committed to my position in Jenkins

v Patel, 471 Mich ___; ___ NW2d ___ (2004).                   And finally, I

must    respectfully       dissent    from    the    majority’s      decision

allowing the trier of fact to consider plaintiff’s alleged

pretreatment negligence.          I agree with the trial court and

the Court of Appeals, as well as the Restatement and a

majority of other jurisdictions, that it would be improper

for     the    jury       to   consider      plaintiff’s        pretreatment

negligence.        Thus, I would affirm the decision of the Court

of Appeals.

        Today, a plurality of this Court makes a mockery of

tort law by holding that a jury can consider a plaintiff’s

pretreatment negligence to determine liability.                      Justice

Markman’s      approach,       allowing      the     jury      to    consider

plaintiff’s pretreatment negligence only when determining

damages,      is   also    contrary    to    general    tort     principles.

While    Justice     Markman   claims      that    allowing    the   jury   to

consider a plaintiff’s pretreatment negligence in a medical


                                      2

malpractice action is consistent with prior law, ante at 5

n 3, a close reading of this Court’s precedent shows that

it does not support Justice Markman’s argument.                       Make no

mistake,    allowing    a   jury     to    consider       a    plaintiff’s

pretreatment negligence in a medical malpractice action is

a sweeping new decision, with no basis in this Court’s

prior rulings.

     It is an axiom of tort law that the defendant takes

the plaintiff as he finds her.            Wilkinson v Lee, 463 Mich

388, 396; 617 NW2d 305 (2000).            Potentially eviscerating a

defendant’s liability or reducing a plaintiff’s damages on

the basis of a condition that a plaintiff brings to the

table ignores this foundational principle of tort law.                       It

also opens the door to scrutiny of a medical malpractice

plaintiff’s    pretreatment   health      habits    and       lifestyle      in

nearly every medical malpractice action.               “[W]hatever the

wisdom or folly of our lifestyles, society, through its

laws, has not yet imposed a normative life-style on its

members.”     Ostrowski v Azzara, 111 NJ 429, 444; 545 A2d 148

(1988).     Today’s    majority    imposes    a    judicially         created

normative lifestyle on the citizens of this state.

     The majority also subverts the text of MCL 600.6304

when it holds that § 6304 requires the trier of fact to

determine   the   comparative      negligence     of   all      who    are    a


                                   3

proximate cause of the plaintiff’s injury.                                        The statute

actually states:          “‘fault’ includes an act . . . that is a

proximate      cause      of    damage         sustained          by    a    party.”            MCL

600.6304(8) (emphasis added).                            While the majority focuses

on plaintiff’s injury, its attention would be more properly

focused on the plaintiff’s damage.

        The plaintiff’s damage in a medical malpractice action

is    determined     by        the      difference            between       the    decedent’s

hypothetical life without the negligence of the doctor and

the actual result.                   In this case, the damage plaintiff

claims is the difference between the life of a woman who

suffered a mini-stroke that was properly treated and a dead

woman.        The majority potentially eliminates all doctors’

liability for all negligent behavior by mischaracterizing

the    damage.       It        is       absurd          to   assert    that       plaintiff’s

pretreatment behavior can be considered the proximate cause

of the damage inflicted by the doctor’s malpractice.

        “As   a    general          rule,      negligence         by    a        patient       that

occurred before the malpractice and provided the occasion

for the treatment that is the subject of the malpractice

claim     cannot     give           rise      to        a    defense        of    comparative

negligence.”           Moore            &    Gaier,          A   Plaintiff’s         Culpable

Conduct,      NY    Law    J        3       (Mar        3,   1998).          Comment       m     to

Restatement Torts, 3d,                      Apportionment of Liability, § 7,


                                                   4

provides      that    the    jury    in     a     medical       malpractice      action

cannot consider the plaintiff’s conduct that created the

condition that the doctor was employed to remedy.                                So, in

this case, the trial court was correct to prevent the jury

from considering plaintiff’s failure to regularly take her

medication.

      In addition to the Restatement, I am persuaded by the

wealth    of       authority    from      other      jurisdictions            that    have

refused       to     allow     juries        to     consider          a      plaintiff’s

pretreatment         negligence      in     medical         malpractice        actions.

For example, the Florida Court of Appeals, in Matthews v

Williford, 318 So 2d 480, 483 (1975), persuasively held

that “conduct of a patient which may have contributed to

his   illness       or    medical    condition          .   .    .    simply     is   not

available      as     a   defense      to        malpractice         which    causes    a

distinct subsequent injury . . . .”                         See, also, Mercer v

Vanderbilt Univ, Inc, 134 SW3d 121, 129-130 (Tenn, 2004);

DeMoss    v    Hamilton,       644   NW2d        302,   306-307        (Iowa,     2002);

Harding v Deiss, 300 Mont 312, 318; 3 P3d 1286 (2000);

Smith v Kennedy, 2000 US Dist LEXIS 9897, 11-12 (D Kan,

2000); Harvey v Mid-Coast Hosp, 36 F Supp 2d 32, 37-38 (D

Me, 1999); Durphy v Kaiser Foundation Health Plan of Mid-

Atlantic States, Inc, 698 A2d 459, 465-467 (DC App, 1997);

Fritts v McKinne, 934 P2d 371, 374 (Okla Civ App, 1996);


                                            5

Spence v Aspen Skiing Co, 820 F Supp 542, 544 (D Colo,

1993); Van Vacter v Hierholzer, 865 SW2d 355, 359 (Mo App,

1993); Martin v Reed, 200 Ga App 775, 777; 409 SE2d 874

(1991); Jensen v Archbishop Bergan Mercy Hosp, 236 Neb 1,

15; 459 NW2d 178 (1990); Cowan v Doering, 215 NJ Super 484,

495; 522 A2d 444 (1987); Owens v Stokoe, 115 Ill 2d 177,

183; 503 NE2d 251 (1986).

        Justice Markman attempts to make a distinction between

a distinct subsequent injury and an injury that would be

part     of   the     “natural   and        foreseeable   result   of    the

plaintiff’s original negligence.”                Ante at 3 n 9.          This

distinction, however, is a distinction without a difference

when examining the proper damage in a medical malpractice

action.       Because a tortfeasor must take a plaintiff as he

finds    her,   the    plaintiff   in        Justice   Markman’s   examples

would be taken as a plaintiff with a broken leg.                   Without

the negligence of the doctor, a plaintiff with a broken leg

could    expect     full   recovery.         Regardless   of   whether   the

doctor’s negligence results in death or in a poorly set

leg, the damage in the case is the difference between the

expected full recovery and the actual result.                   In neither

example, can the plaintiff’s negligence in breaking her leg

be a proximate cause of the damage.




                                       6

        Because the majority mischaracterizes the damage and

allows     the     jury    to   consider       plaintiff’s        pretreatment

negligence, I must respectfully dissent.                   I refuse to take

part in the judicial determination of what is and is not

socially acceptable behavior.               Smokers, couch potatoes, and

fast food connoisseurs pick your doctors carefully because

after     today,    no    matter   how       negligent     a   doctor    is   in

treating you, the jury will be able to consider your poor

health    habits    when    deciding        whether   to   hold    the   doctor

liable.     I would affirm the holding of the trial court and

the Court of Appeals.

                                         Michael F. Cavanagh
                                         Marilyn Kelly




                                       7

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


                         SUPREME COURT


ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

      Plaintiff-Appellee,

v                                                      No. 123720

ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,

      Defendant-Appellant,

and

DENNIS ADAMS, M.D. AND MARY ELLEN
FLAHERTY, M.D.,

     Defendants.
_____________________________________

ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

      Plaintiff-Appellee,

v                                                      No. 123721

KATHERINE ADAMS, Personal Representative
Of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,

      Defendants-Appellants,

and

ANNAPOLIS HOSPITAL, assumed name for
OAKWOOD UNITED HOSPITALS, INC.,

      Defendant.
_____________________________________

WEAVER, J. (concurring in part and dissenting in part).

                                                   I

        I dissent from the majority’s holding that pursuant to

MCL 600.6304, plaintiff’s pretreatment negligence may be

considered by the jury in assessing comparative negligence

because it may have been a proximate cause of plaintiff’s

death.            Ante at 2-3.1          I agree with Justice Cavanagh’s

concurring and dissenting opinion that it would be improper

for         the     jury    to     consider            plaintiff’s    pretreatment

negligence to determine comparative negligence, ante at 2,

and I would affirm the Court of Appeals decision on this

point.

        To        determine      the     comparative        negligence      of     the

parties, MCL 600.6304 provides that the trier of fact in a

tort action shall determine the percentage of the total

fault       of     all   persons       that   contributed      to    the   death   or

injury, including each plaintiff.                        MCL 600.6304(8) defines



        1
       The plaintiff’s negligence after seeking treatment is
not at issue in this case; the parties agree that a
plaintiff’s negligence after seeking treatment may be
considered in a comparative negligence analysis. See
Pietrzyk v Detroit, 123 Mich App 244, 248-249; 333 NW2d 236
(1983), and Jalaba v Borovoy, 206 Mich App 17, 23; 520 NW2d
349 (1994).   The issue here focuses solely on plaintiff’s
conduct before seeking treatment.



                                              2

“fault” as “an act, an omission, conduct . . . that is a

proximate cause of damage sustained by a party.” (Emphasis

added.)

     As Justice Cavanagh explains, the proper focus of the

statute is on the plaintiff’s damage, not the plaintiff’s

injury,    and       “[t]he     plaintiff’s         damage     in   a     medical

malpractice action is determined by the difference between

the decedent’s hypothetical life without the negligence of

the doctor and the actual result.”                 Ante at 4.2

     Further,         I     would         hold     that      the    plaintiff’s

pretreatment negligence did not fall within MCL 600.6304’s

definition      of    “fault”       for    the    purposes     of   comparative

negligence.           While     plaintiff’s        pretreatment      negligence

caused    the   need      for   care      or    treatment    that   led   to   the

alleged medical malpractice, the plaintiff’s pretreatment

negligence      was       not   a    proximate       cause    of    plaintiff’s

damages.




     2
       It should be noted that plaintiff’s pretreatment
conduct and general health will be considered when the jury
determines the amount of plaintiff’s damages. For example,
in this case, the jury found that decedent had a life
expectancy of eight years, rather than the 15.44-year life
expectancy provided by the mortality tables for a sixty-
one-year-old woman in good health, or the ten to fifteen-
year life expectancy that plaintiff’s expert opined.



                                           3

      Proximate cause, or legal cause, as it is also known,

involves examining the foreseeability of consequences, and

considering    whether      a    defendant          should    be   held    legally

responsible for such consequences.                   Skinner v Square D Co,

445   Mich   153,   163-164;      516        NW2d    475     (1994).      Deciding

proximate cause is a policy determination of the courts:

           “Proximate cause”—in itself an unfortunate
      term—is merely the limitation which the courts
      have placed upon the actor’s responsibility for
      the consequences of the actor’s conduct.    In a
      philosophical sense, the consequences of an act
      go forward to eternity, and the causes of an
      event go back to the dawn of human events, and
      beyond. But any attempt to impose responsibility
      upon such a basis would result in infinite
      liability for all wrongful acts, and would “set
      society on edge and fill the courts with endless
      litigation.     As a practical matter, legal
      responsibility must be limited to those causes
      which are so closely connected with the result
      and of such significance that the law is
      justified in imposing liability.   Some boundary
      must be set to liability for the consequences of
      any act, upon the basis of some social idea of
      justice or policy. [Prosser & Keeton, Torts (5th
      ed), § 41, p 264.]
To be allocated as “fault” for the purposes of comparative

negligence    under   MCL       600.6304,       a    plaintiff’s       negligence

must be a proximate cause of the plaintiff’s damages.                          The

majority does not offer any analysis regarding why it is

appropriate to consider plaintiff’s pretreatment negligence

as a proximate cause of her death, but simply states that

it may be considered.




                                        4

     I   note   that    all    the    other      state       courts    that    have

considered      the     question       whether           a     patient’s        own

pretreatment    negligence      could       be     considered      a    proximate

cause of the patient’s damages for purposes of comparative

negligence   have     ultimately      decided       that      it   should      not.3

Owens v Stokoe, 115 Ill 2d 177, 183; 503 NE2d 251 (1987)

(dental patient’s failure to obtain second option, prior

poor oral hygiene, and alleged refusal to permit X-ray to

be taken of his teeth were insufficient to raise issue of

contributory negligence because parasthesia was proximately

caused by damage to the left interior alveolar nerve during

surgery and conduct of patient did not prevent surgeon from

properly performing surgery); Eiss v Lillis, 233 Va 545,

553-554; 357 SE2d 539 (1987) (the plaintiff’s negligently

taking   aspirin       along   with        heart     medicine         before    the

physician’s alleged negligence was not a proximate cause of



     3
       Although in 1996 the Tennessee Supreme Court held
that a decedent’s negligence in causing the initial injury
would be considered in apportioning fault for the purposes
of comparative negligence, Gray v Ford Motor Co, 914 SW2d
464, 467 (Tenn, 1996), that case was overruled in May of
2004, by Mercer v Vanderbilt Univ, Inc, 134 SW3d 121, 125
(Tenn, 2004).   In Mercer the court held that “a patient’s
negligent conduct that occurs prior to a health care
provider’s negligent treatment and provides only the
occasion   for  the   health   care provider’s  subsequent
negligence may not be compared to the negligence of the
health care provider.” Id. at 130.



                                      5

the plaintiff’s death);        Jensen v Archbishop Bergan Mercy

Hosp, 236 Neb 1, 15-16; 459 NW2d 178 (1990) (although the

plaintiff’s failure to lose weight may have been causally

related to his injury, his conduct regarding his weight

problem merely furnished an occasion or condition for the

medical care that was the basis of the medical malpractice

action,    and   it   was   improper    to   instruct    the   jury   to

consider   whether    the   plaintiff    had   been     contributorily

negligent);      Harding v Deiss, 300 Mont 312, 318; 3 P3d 1286

(2000) (the plaintiff’s negligence in riding a horse when

she had asthma and was allergic to horses could not be

compared to physician’s failure to immediately intubate her

upon her arrival at the hospital); DeMoss v Hamilton, 644

NW2d 302, 307 (Iowa, 2002) (the plaintiff’s failure to stop

smoking, have regular follow-up examinations, lose weight,

and begin an exercise program after a heart attack provided

the occasion for medical treatment, but was irrelevant to

the question of defendant’s medical negligence).               See also

Harvey v Mid-Coast Hosp, 36 F Supp 2d 32, 37-38 (D Me,

1999), Spence v Aspen Skiing Co, 820 F Supp 542, 544 (D

Colo, 1993), Van Vacter v Hierholzer, 865 SW2d 355, 359 (Mo




                                  6

App, 1993), and Nelson v McCreary, 694 A2d 897 (DC App,

1997).4

      In   holding       that    plaintiff’s      pretreatment          negligence

may be considered a proximate cause of plaintiff’s damages

for   purposes      of     comparative       negligence,         the     majority

abandons the long-standing principle of tort law that the

defendant    takes     the      plaintiff    as    he    finds    her.      See    2

Restatement Torts, 2d,§ 461, p 502; Rawlings v Clyde Plank

& Macadamized Rd Co, 158 Mich 143, 146; 122 NW 504 (1909).

As recently as 2000 this Court, including the majority,

recognized and applied this principle of law.                       Wilkinson v

Lee, 463 Mich 388, 396; 617 NW2d 305 (2000).                      The patient’s

conduct before seeking medical treatment is merely a factor

the   physician      should      consider    in     treating      the     patient.

Harding, supra at 318.             Rather than retreating from such a

long-established         principle,    I    would       affirm   the     Court    of

Appeals on this issue.

                                            II

      I    join   in      full    §   III(B)      of     the     lead     opinion,

recognizing       that     the     medical        malpractice       noneconomic

damages cap of MCL 600.1483 applies to a wrongful death



      4
      But see, contra, Wyatt v United States, 939 F Supp
1402 (ED Mo, 1996).



                                       7

action based on an underlying claim of medical malpractice

and concluding that the higher cap of MCL 600.1483 applies

when the injured person, at any time while still living and

as a result of a defendant’s negligent conduct, fits with

the ambit of MCL 600.1483(1).5




     5
         MCL 600.1483 provides:


          (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
     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
                                      (continued . . . .)


                                  8

                                       III 


      I also join in full § III(C) of the lead opinion,

concluding that because the term “plaintiff,” as used in

MCL   600.6311,   refers,   for   purposes     of   a   wrongful   death

action, to the decedent, and because Mrs. Shinholster, the

decedent, was sixty-one years old at her death and at the

time of judgment, the damages awarded to plaintiff should

not be reduced to their present value.6

                                       IV

      Because I would hold that the plaintiff’s pretreatment

negligence in this medical malpractice action did not fall


(continued . . . .)
     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.
           (4) The 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. As
      used in this subsection, “consumer price index”
      means the most comprehensive index of consumer
      prices available for this state from the bureau
      of   labor  statistics   of  the   United  States
      department of labor.
      6
       MCL 600.6311 provides:    “Sections 6306(1)(c), (d),
and (e), 6307, and 6309 do not apply to a plaintiff who is
60 years of age or older at the time of judgment.”



                                  9

within MCL 600.6304’s definition of “fault,” and therefore

could not be considered for the purposes of comparative

negligence, I would affirm the Court of Appeals on all

counts.

                              Elizabeth A. Weaver


KELLY, J.

     I concur with respect to sections I, III, and IV.

                              Marilyn Kelly




                             10

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


                             SUPREME COURT 


ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

        Plaintiff-Appellee,

v                                                        No. 123720

ANNAPOLIS HOSPITAL, assumed name for,
OAKWOOD UNITED HOSPITALS, INC.,

        Defendant-Appellant,

and

DENNIS ADAMS, M.D. AND MARY ELLEN
FLAHERTY, M.D.,

     Defendants.
_______________________________

ESTATE OF BETTY JEAN SHINHOLSTER,
Deceased, by JOHNNIE E. SHINHOLSTER,
Personal Representative,

        Plaintiff-Appellee,

v                                                        No. 123721

KATHERINE ADAMS, Personal Representative
of the Estate of DENNIS ADAMS, M.D., and
MARY ELLEN FLAHERTY, M.D.,

        Defendants-Appellants,

and 


ANNAPOLIS HOSPITAL, assumed name for,

OAKWOOD UNITED HOSPITALS, INC., 


     Defendant. 

 _______________________________ 

KELLY, J. (concurring in part and dissenting in part).

     I   fully   agree    with   Justice   Cavanagh's      opinion.   In
addition,   I    join    sections   I,   III,   and   IV   of   Justice
Weaver's opinion.
                                    Marilyn Kelly




                                    2

