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A High Cap Exception Explained

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Bruce A. Vande Vusse & Kirsten M. McNelly
Foster Swift Medical Malpractice E-News
October 6, 2009

One of the "high cap" exceptions to the non-economic damage limitations in medical malpractice cases1 - pertaining to hemi/para/quadriplegia and functional loss of limbs - was recently explained by the Michigan Court of Appeals.  In Shivers v Schmiege, et al., __ Mich App __; __ NW2d __ , 2009 WL 3151874 (# 284635), the Court made three important determinations related to application of this high cap exception: (1) the high cap applies if there is a functional loss of the use of both arms despite no loss of use of a leg; (2) the high cap applies only if there is both loss of limb function and hemiplegia, paraplegia, or quadriplegia; and (3)  functional loss of use of limb(s) can occur despite retention of limited use of those limbs.

Plaintiff Shivers claimed that medical malpractice caused him to lose most use of both arms.  The defense argued that the lack of use of both arms is not hemiplegia, paraplegia, or quadriplegia since those terms describe loss of use of leg(s).  The Court disagreed, explaining that while a layperson may think that hemiplegia, paraplegia, or quadriplegia must involve at least one leg, a healthcare professional would understand that these medical terms do not describe which limbs are affected but where the injury to the spinal cord occurred.2

Further, the Court held that in order for this high cap exception to apply, two conditions must be exist:  both hemiplegia, paraplegia, or quadriplegia and a functional loss of 1 or more limbs.

Finally, the Court held that even though Plaintiff Shivers could minimally use his arms (for example, to brace himself during walker use or to feed himself certain foods with a  plastic spoon), the high cap exception applied so long as "functional" use of his arms was lost.   The Court concluded that "Plaintiff's testimony showed that although [Plaintiff] could use his arms in certain ways to his benefit, they were no longer functional in the way that normal arms are," thus satisfying the high cap exception requirements.

All three parts of the Court's analysis are important, but the holding that "functional" loss of the use of both arms meets the statutory test for application of this high cap exception may be the most far-reaching of the three.


1 MCL 600.1483 provides an exception to non-economic damage limitations - a so-called "high cap" - applies under certain circumstances, including when a Plaintiff is "hemiplegic, paraplegic, or quadriplegic resulting in a total permanent functional loss of 1 or more limbs" caused by brain or spinal cord injury.

2 The Court further noted that the terms "hemiplegic, paraplegic, or quadriplegic" do not describe a plaintiff's symptoms (which a layperson would describe as the inability to use a limb), but instead describe the medical injury (certain medically defined damages to the nervous system).