Daher v. Prime Healthcare Servs.-Garden City

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NAWAL DAHER and MOHAMAD JOMAA, Co-Personal Representatives of the ESTATE OF JAWAD JUMAA, also known as the ESTATE OF JAWAD JOMAA, Plaintiffs-Appellees, v. PRIME HEALTHCARE SERVICES-GARDEN CITY, LLC, doing business as GARDEN CITY HOSPITAL, KELLY W. WELSH, D.O., and MEAGAN SHADY, D.O., Defendants-Appellants.

No. 165377

Supreme Court of Michigan

July 30, 2024

Argued April 16, 2024

Justices: Brian K. Zahra David F. Viviano Richard H Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden Chief Justice: Elizabeth T. Clement

Nawal Daher and Mohamad Jomaa, as co-personal representatives of the estate of Jawad Jumaa, their son, filed a complaint against Prime Healthcare Services-Garden City, LLC, doing business as Garden City Hospital; Kelly W. Welsh, D.O.; and Meagan Shady, D.O., for negligence, medical malpractice, and nursing malpractice for failing to treat Jawad for bacterial meningitis. The complaint sought damages under the wrongful death act (WDA), MCL 600.2922, for, among other things Jawad's lost future earnings. Thirteen-year-old Jawad was diagnosed with torticollis in the emergency room of Garden City Hospital. He was treated for this condition and discharged. Jawad was found dead the next morning, and an autopsy revealed that the cause of death was bacterial meningitis. After plaintiffs filed their complaint defendants moved for summary disposition, arguing that lost future earnings were not permitted under the WDA, and alternatively, that plaintiffs had failed to prove any lost future earnings beyond mere speculation. The trial court, Martha M. Snow, J., denied defendants' motion. Defendants appealed in the Court of Appeals, which affirmed. 344 Mich.App. 522 (2022). The Court of Appeals held that its holding in Denney v Kent Co Rd Comm, 317 Mich.App. 727 (2016), was controlling and that damages for lost future earnings were therefore recoverable under the WDA. Further, the Court of Appeals held that Wesche v Mecosta Co Rd Comm, 480 Mich. 75 (2008), had implicitly overruled Baker v Slack, 319 Mich. 703 (1948), and that the Legislature's 1971 amendment of the WDA had superseded Baker and made the list of damages that are recoverable under the act nonexhaustive. Defendants sought leave to appeal in the Michigan Supreme Court, and the Court granted the application. 512 Mich. 959 (2023).

In a unanimous opinion by Justice Viviano, the Supreme Court held:

The Court of Appeals erred by failing to apply Baker because Baker was never clearly superseded by the Legislature or overruled by the Supreme Court. Baker's holding that damages for lost earning capacity are not available under the WDA is reaffirmed, and Denney and Thorn v Mercy Mem Hosp Corp, 281 Mich.App. 644 (2008), are overruled to the extent that they are inconsistent with this opinion.

1. Under MCL 600.2921, actions on claims for injuries that result in death shall not be prosecuted after the death of the injured person, except as provided in the WDA. MCL

600.2922(6) provides that a court or jury may award damages under the act as they consider "fair and equitable, under all the circumstances," including for reasonable medical and funeral expenses; reasonable compensation for the pain and suffering of the deceased, while conscious, endured between the time of injury and death; and for the loss of financial support and the loss of the society and companionship of the deceased.

2. The WDA's predecessors were the death act and the survival act. Under the survival act, a decedent's cause of action survived their death and the defendant's death and entitled the decedent's estate to whatever damages the decedent could have recovered, including damages for the loss of future earnings. Under the death act, the cause of action was for the decedent's survivors whom the decedent was obligated to support, and recovery was limited to the actual loss sustained by the survivors as a result of the decedent's death. In 1939, the Legislature created a new wrongful death act that combined the death act and the survival act and required that all actions for injuries resulting in death be brought under the new act. The new act was in the form of an amendment of the death act and provided for the repeal of any inconsistent provision of the survival act. Thus, the survival act was not repealed but was incorporated into the new act to form a single ground of recovery in cases in which tortious conduct caused death. In Baker, the Court rejected the argument that the new act provided for recovery of the loss of future earnings without a showing that those seeking recovery had sustained a pecuniary loss. The Court held that following the 1939 amendments, the WDA's damages provision provided an exclusive list of the types of damages that could be recovered for injuries resulting in death and divided recoverable damages into three classes: (1) pecuniary injury; (2) reasonable medical and funeral expenses; and (3) the pain and suffering of the decedent before their death. The Court further held that lost future earnings were not recoverable because under the act, the right to recover for pecuniary loss must be predicated upon the existence of a survivor's legally enforceable claim to support or maintenance by the deceased.

3. The Legislature amended the WDA in 1971, adding the word "including" and other changes, and again in 1985. In Denney, relying on Thorn, the Court of Appeals held that the addition of the word "including" in the 1971 amendments indicated the Legislature's intent to permit the award of "any type of damages . . . deemed justified by the facts of the particular case." Therefore, Denney held that damages for loss of future earnings were recoverable under the WDA. However, neither Denney nor Thorn discussed Baker. When the Legislature combined the survival act and the death act in the 1939 amendments, it made a clear policy choice to allow only death act damages. Thus, it revived the common-law rule barring recovery of damages for survival actions to the extent that they were not included in the 1939 amendments, such as loss of future earnings. Therefore, in order for the 1971 amendments to abrogate the common-law rule and thereby allow damages for future earnings, the amendments must clearly so indicate in no uncertain terms. Although the phrase "pecuniary injury" was deleted from the statute in the 1971 amendments, this did not undermine the holding in Baker that rejected the plaintiff's claim for future-earnings damages because they were not a type of damages expressly provided for in the WDA. The removal of that phrase did not change the relationship between survival actions and the WDA, which share a single ground of recovery in cases in which tortious conduct caused death. Instead, this Court has held that the deletion of "pecuniary injury" and the addition of "loss of . . . society and companionship" were a clear rejection by the Legislature of Breckon v Franklin Fuel Co, 383 Mich. 251 (1970), which held that damages for loss of companionship were not recoverable under the WDA because they did not qualify as a pecuniary injury. Similarly, the Court previously rejected the argument that the addition of the phrase "under all of the circumstances" in the 1971 amendments superseded a prior decision holding that certain evidence was inadmissible. That phrase invoked the jury's role in determining the amount of damages but did not address the type of damages recoverable.

4. In this case, the Court of Appeals held that the addition of "including" in the 1971 amendments means that the types of damages listed in the statute are nonexhaustive, citing its opinions in Denney and Thorn. However, neither opinion discussed Baker. While "including" is sometimes used in a statute as a term of enlargement, it can also be used as a term of limitation. Given the statutory history of the survival act and the WDA, as well as the related caselaw, it is not persuasive that, by inserting the word "including" into the WDA, the Legislature intended to convert what had long been an exhaustive list of the types of recoverable damages into an open-ended list of damages left to the jury's discretion. This would amount to a further abrogation of the common law, and to effect such a change, the Legislature must speak in no uncertain terms. Notably, the Legislature expressly added damages for loss of society and companionship in the 1971 amendments and for "loss of financial support" in the 1985 amendment. The Legislature's insertion of "including" was not a similarly clear indication of its intent. Moreover, the fact that the Legislature adopted "loss of financial support" to the exclusion of loss of future earnings, when both types of damages had been the subject of dispute under the survival act and the WDA, indicates that the Legislature intended to exclude the latter.

5. Lastly, Wesche did not implicitly overrule Baker or otherwise undermine Baker's holding. The Court of Appeals reasoned that when Baker was decided, the WDA was construed as providing a new cause of action for the benefit of the beneficiaries. In Wesche, however, this Court held that this was a "repudiated understanding" of the WDA and that it was now clear that the underlying claim survives by law and that the limitations in the underlying cause of action apply to the wrongful death action. The Court of Appeals did not explain why that understanding of the WDA affected the validity of Baker's holding. Regardless of whether the WDA provides a new action or only one that survives by law, as stated in Wesche, the WDA serves as a "filter" through which the underlying action must proceed and controls which types of damages are available.

Court of Appeals' judgment reversed, Part II(B) of Court of Appeals opinion...