Lewis v. Krogol , 229 Mich. App. 483 ( 1998 )

N. J. Lambros, J.

Plaintiff appeals as of right a circuit court order granting defendant’s motion for summary disposition in this medical malpractice action. At issue are the statutory limitations on noneconomic damages in MCL 600.1483; MSA 27A.1483 as the provisions existed before a 1993 amendment¹ became effective. We reverse and remand.

MCL 600.1483; MSA 27A.1483 provided in part:

(1) In an action for damages alleging medical malpractice . . damages for noneconomic loss which exceeds $225,000[²] 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 involved the reproductive system of the patient.

(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.

Plaintiffs Barbara Lewis (hereinafter Lewis) and her husband filed a complaint alleging medical malpractice and loss of consortium against defendant, as well as several other defendants. Plaintiffs’ theory is that defendants’ malpractice resulted in permanent damage to Lewis’ spinal nerves, making her unable to walk without assistance. Plaintiffs settled their claims with all of the defendants except Krogol for $927,500.

Krogol filed a motion for partial summary disposition pursuant to MCR 2.116(C)(10) with regard to the issue of damages. Krogol asserted, and the trial court agreed, that none of the exceptions to the statutory cap was present in this case. The court questioned whether walking was a vital bodily function. According to the court, even if the description of Lewis’ condition offered by plaintiffs’ counsel was accepted, Lewis’ inability to walk without assistance did not constitute a “loss of a vital bodily function.” The court rejected the proposition that a vertebral body was an “organ” so as to fall within MCL 600.1483(1)(f); MSA 27A.1483(1)(f) and rejected plaintiffs’ challenges to the constitutionality of the statutory cap. Because plaintiffs’ settlement exceeded the statutory cap, the court ruled that the maximum damages to which plaintiffs would be entitled from Krogol was zero. The court determined that there was no genuine issue of material fact to submit to the jury and dismissed the action.

We conclude that the trial court erred in granting Krogol summary disposition because, under the circumstances, whether Lewis has lost a vital bodily function was an issue to be determined by the jury.

In the absence of any controlling legal authority examining the medical malpractice cap,³ we turn to decisions concerning the no-fault act⁴ for guidance regarding when the applicability of an exception to the statutory cap should be decided as a matter of law. Under the no-fault act, noneconomic losses may be recovered if the injured person suffered death, a serious impairment of body function, or permanent serious disfigurement. MCL 500.3135(1); MSA 24.13135(1). MCL 500.3135(2)(a); MSA 24.13135(2)(a), as it currently exists, sets forth when the determination of serious impairment of body function and permanent serious disfigurement are questions of law for the court. However, before the amendment of this section by 1995 PA 222, the statute was silent with regard to this issue. In the absence of a legislative directive regarding the matter, the Supreme Court determined that, if reasonable minds could differ with regard to whether the plaintiff sustained a “serious impairment of a body function,” the issue should be submitted to the trier of fact, even if there is no material factual dispute with respect to the nature and extent of the plaintiffs injuries. DiFranco v Pickard, 427 Mich 32; 398 NW2d 896 (1986).

Like the no-fault act before 1995 PA 222, the statute limiting noneconomic damages in medical malpractice actions was silent concerning whether the determination of an exception to the cap should be decided as a matter of law until 1993 PA 78.⁵ As the Court did in DiFranco, we conclude that if reasonable minds could differ with regard to whether the plaintiff “has lost a vital bodily function,” the issue should be submitted to the trier of fact, regardless of whether there is a material factual dispute about the nature and extent of the plaintiffs injuries.

Whether reasonable minds could differ with regard to whether Lewis lost a vital bodily function depends on how the term “vital” is defined. The term was not defined by the Legislature. Random House Webster’s College Dictionary (1992) provides the following definitions arguably applicable in this instance: (1) “of, pertaining to, or necessary to life: vital processes,” (2) “necessary to the existence, continuance, or well-being of something; indispensable; essential,” (3) “of critical importance; vital decisions.” The meaning of the word “vital” in the phrase “lost a vital bodily function” is critical to the outcome of this case. If vital bodily functions are limited to those that are “necessary to life,” as argued by Krogol, then the court properly granted summary disposition because reasonable minds could not differ that walking does not fall within that definition. On the other hand, if as suggested by plaintiffs, “vital” is defined as broadly as “pertaining to . . . fife,” walking would be considered “vital” and the issue should have been decided by the jury-

We conclude that the Legislature did not intend the phrase “loss of a vital bodily function” to mean loss of a function “necessary to life.” If construed in this way, the exception becomes virtually redundant of the first exception, “There has been a death.” Krogol suggests that one can lose a function necessary to sustain life and still be alive. Krogol offers the examples of people on life support or dialysis and people who receive transplants such as the heart, lungs, or kidneys. We agree with Krogol that the Legislature’s use of the words “loss” and “vital” in this exception indicate a higher threshold than in the no-fault act, in which any body function need only be seriously impaired. However, we conclude that a definition of “vital” that basically restricts the exception to those on life support or dialysis and those who received transplants was not intended by the Legislature.

We also conclude that the Legislature did not intend the phrase “loss of a vital bodily function” to mean loss of a bodily function “pertaining to” life. Because every body function pertains to life in some way, defining vital in this way makes the word mere surplusage. By including the word “vital,” the Legislature indicated that not all injured patients who had lost a bodily function would be exempt from the cap.

We believe that the Legislature included the word “vital” to indicate the degree of importance that the lost bodily function must have in order for the exception to apply. In the context of the no-fault act limitation “serious impairment of body function,” the Supreme Court held that the impaired body function need not be an important body function. DiFranco, supra at 39. If the word “vital” had been omitted from the statute, courts may have reached a similar result with respect to MCL 600.1483(1)(g); MSA 27A.1483(1)(g) and concluded that the loss of any bodily function came within the exception. The inclusion of the word “vital” was intended to restrict the applicability of the exception. However, we do not believe that the Legislature intended for the trier of fact to simply determine if loss of the function results in death, as would be the case if vital was defined as “necessary to life.” Rather, we conclude that the Legislature included the term “vital” to restrict the exception to individuals who have lost bodily functions that are considered to have a high degree of importance. The Legislature uses the term “vital” as an indication of the level of importance in other statutes, such as MCL 2.101(2)(a); MSA 3.448(1)(2)(a) (“the expansion of the tourism industry is vital to the growth of the slate’s economy”), MCL 247.661(2)(i); MSA 9.1097(11)(2)(i) (referring to state transportation projects as “vital to the economy of the state”), and MCL 324.74102(1)(c); MSA 13A.74102(1)(c) (“Michigan state parks are . . .vital to local economies”).

Krogol was not entitled to summary disposition because reasonable minds could differ regarding whether Lewis “has lost a vital bodily function.” A trier of fact could reasonably conclude that walking is a vital bodily function and that Lewis “has lost” this function. Lewis testified that she is in a wheelchair “basically the whole day, other than to transfer to the couch.” She can walk seventy-five to one hundred feet if she has something “to hang onto.” She uses a walker when she “go[es] in and out of doors.” Her legs can hold her weight for “a short time.” Although she is able to walk to some extent with the aid of a walker, we believe that reasonable minds could differ regarding whether she “has lost” the ability to walk. Accordingly, the issue must be resolved by the trier of fact.

We reject plaintiffs’ argument that the exception in subsection f applies. Reasonable minds would agree that no “organ” of Lewis was “removed.”

In light of our determination that the issue whether Lewis has lost a vital bodily function should be resolved by a jury, we need not address plaintiffs’ claims that summary disposition should not have been granted because Krogol’s motion was not adequately supported by an appropriate affidavit.

We also decline to address plaintiffs’ constitutional challenges to MCL 600.1483; MSA 27A.1483 and their argument that the provision discriminates against the disabled contrary to provisions of the Americans With Disabilities Act⁶ (ADA). “Constitutional questions are not dealt with hypothetically or in the abstract.” Citizens For Pretrial Justice v Goldfarb, 415 Mich 255, 273; 327 NW2d 910 (1982). Unless and until a jury (1) renders a verdict in plaintiffs’ favor, (2) determines that Lewis has not lost a vital bodily function, and (3) awards noneconomic damages in excess of the statutory cap, plaintiffs’ cannot properly assert that the statute has infringed on their constitutional rights. The jury’s failure to do any of the above will render unnecessary any decision about the constitutionality of the statute because its provisions will not have affected plaintiffs’ recovery. Therefore, resolution of the constitutional challenges are premature at this time. See also Ryan v Ore Lake, 56 Mich App 162; 223 NW2d 637 (1974). Similarly, we conclude that plaintiffs cannot properly argue that MCL 600.1483(1); MSA 27A. 1483(1) violates the ADA unless and until the provisions of MCL 600.1483(1); MSA 27A.1483(1) result in diminution of plaintiffs’ recovery.

The order granting Krogol summary disposition is reversed and the case is remanded for further proceedings. We do not retain jurisdiction.

Kelly, P.J., concurred.

1 1993 PA 78 rewrote this section effective April 1, 1994. Unless otherwise indicated, references to the statute will be to the statute as it was before April 1, 1994.

2 Pursuant to subsection 4 of the statute, this amount is adjusted to reflect the cumulative annual percentage increase in the consumer price index.

3 MCL 600.2946a; MSA 27A.2946a, which applies to noneconomic damages in products liability actions, contains the phrase “permanent loss of a vital bodily function.” However, we have found no published opinions interpreting the phrase in that statute.

4 MCL 600.3101 et seq.; MSA 24.13101 et seq.

5 1993 PA 78 made clear that the applicability of any of the exceptions to the statutory cap is decided by the court. After the amendment, MCL 600.6304(6); MSA 27A.6304(6) and MCL 600.1483; MSA 27A.1483 both indicate that the court must determine whether one or more of the exceptions apply.

6 42 USC 12101 et seq.