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Household Services - Wrongful Death Damage Recovery

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Bruce A. Vande Vusse
Foster Swift Medical Malpractice E-News
December 18, 2008

The economic value of household services provided by a decedent to her minor children is an allowable element of damages under Michigan's Wrongful Death Act ("WDA") and is an "economic" damage not subject to cap limitations in medical malpractice cases.  Thorn vs. Mercy Memorial Hospital ____ Mich App ____; ____ NW2d _____ (2008 WL_______) Docket No. 277935.

On 12/11/08 the Michigan Court of Appeals issued a 3-0 published opinion clarifying issues which have long been the source of argument by litigation attorneys.  Plaintiff's decedent died following a c-section, and Plaintiff's economist testified that the economic value of household services by the deceased for her minor children was $1,450,000.  The defense argued first that loss of service damages are not listed and therefore not allowed under the statutory language of the WDA, and second, even if they recoverable, they are "non-economic" damages subject to cap limitations in medical malpractice actions.  The Court of Appeals rejected both arguments.

The Court held that the language of the WDA, specifically the word "including" in MCL 600.2922(6), is an expansive term so that the list of damages is illustrative rather than exhaustive, and loss of services damages are recoverable. MCL 600.1483 does not define loss of service damages as either economic or non-economic for purposes of the cap on medical malpractice damages, so the Court turned to MCL 600.2945(c), which defines "economic loss" in product liability cases as including "costs of obtaining substitute domestic services." Concluding that economic damages in medical malpractice actions must be the same as economic damages under other theories of tort liability, the Court held that the economic value of household services is a recoverable "economic" damage and therefore not subject to the damage cap limitations of MCL 600.1483. 

This ruling expands the potential exposure for defendants, and especially medical malpractice defendants in wrongful death cases where the plaintiff seeks damages that would exceed the cap on non-economic damages.   It may also expand the list of needed defense experts, since plaintiffs typically present this evidence through economists and the defense must decide whether to put on its own economist to present a different set of numbers for the trier of fact to consider.