QUESTION: It was recently reported that our Supreme Court refused to hear a case that greatly expanded the damages available to plaintiffs in wrongful death cases (arising from medical malpractice or other claims). Can you explain this decision? Is it significant?
ANSWER: The case that you refer to is Estate of Langell v McLaren Port Huron. The plaintiff estate alleged medical malpractice against several defendants. The issue on appeal was whether the plaintiff estate was entitled to recover as damages an amount approximating all the potential future earnings of the decedent or only an amount approximating the future financial support obligation of the decedent (a more limited amount).
The Court of Appeals held that the plaintiff estate was entitled to recover all the future earnings of the decedent without regard to whether the decedent had a financial support obligation. Defendants filed an application for leave to appeal to the Supreme Court. MSMS and the AMA filed an amicus brief supporting the defendants’ application and arguing that this element of the plaintiff estate’s damages should be limited to the decedent’s financial support obligation.
The applicable section of Michigan’s Wrongful Death Act, MCL 600.2922(6), provides:
In every action under this section, the court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral, and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of the society and companionship of the deceased. (emphasis added)
This statute specifically states that “damages for the loss of financial support” are recoverable. It does not provide that all the future earnings of the decedent are recoverable. Despite this choice of language by the Michigan legislature, our Supreme Court decided to let stand a Court of Appeals decision allowing and award of damages including a loss of all future earnings without regard for whether the decedent owed anyone an obligation of financial support. The Supreme Court’s 5-2 decision was contained in an order denying defendants’ application for leave to appeal. The majority (Justices Bernstein, Clement, Cavanagh Welch and McCormack) included no substantive explanation supporting their denial in the order. Justices Viviano and Zahra dissented and provided an explanation. They believed the Supreme Court should have granted leave to appeal to fully consider this “significant and recurring question of law involving a complicated statute.” Justices Viviano and Zahra further stated their opinion that the Court should have heard the appeal to consider the applicable precedent, Baker v Slack, 319 Mich 703 (1948). In Baker the Supreme Court held that the previous version of MCL 600.2922(6) limited a plaintiff estate’s recovery to the amount of the decedent’s support obligation and did not allow all the future earnings of the decedent to be recovered as damages. Justices Viviano and Zahra openly questioned whether Baker remains “good law” and would have heard this appeal and addressed that question.
The denial of the application for leave to appeal in Langell is significant. In future medical malpractice cases involving the death of a patient and other cases brought pursuant to Michigan’s Wrongful Death Act plaintiffs will now seek the full loss of the earnings capacity of the decedent whether the decedent had a support obligation or not. This will be the case until the Supreme Court decides to hear an appeal which fully interprets MCL 600.2922(6) considering its history and Baker.
By Daniel J. Schulte, J.D., MSMS Legal Counsel