Medical malpractice action; Damages available under the Wrongful Death Act (WDA); MCL 600.2922(6); Loss-of-services damages; Thompson v Ogemaw Cnty Bd of Rd Comm’rs; Lost-earning-capacity damages; Daher v Prime Healthcare Servs-Garden City, LLC; Baker v Slack; Speculative damages; Zehel v Nugent; Courtney v Apple; Cooper v Lake Shore & MI S Ry Co

The court held that loss-of-services damages remain available under the WDA, and that in a WDA action involving an infant-decedent, a plaintiff “is not barred as a matter of law from recovering loss-of-services damages for the time after the decedent would have reached the age of 18.” But after Daher, lost-earning-capacity damages no longer remain available under the WDA. Thus, the trial court did not err in denying defendants’ motion for partial summary disposition as to plaintiff’s claim for loss-of-service damages but did err in denying it as to lost-earning-capacity damages. This medical malpractice action arose from the death of an infant days after birth. The parties agreed on appeal “that lost-earning-capacity damages are no longer available under the” WDA after the Michigan Supreme Court’s decision in Daher. “But Daher did not resolve whether loss-of-services damages remain available under the WDA, and” the court determined that they do. It found that, “by concluding that loss-of-services damages remain available under the WDA following the 1971 amendments, we are not expanding the types of damages available under the act but merely concluding that the 1971 amendment did not disallow damages that were historically available under [it]. Such an interpretation is consistent with the ‘unique facts and the extensive statutory history of the WDA and the caselaw interpreting it.’” The court added that the “historical treatment of loss-of-services damages under the WDA also makes the question presented in this case materially different from the one presented in Daher.” The court noted that the “Supreme Court has never held that loss-of-services damages are unavailable under the WDA—indeed, after the death act and survival act were combined, our Supreme Court repeatedly reaffirmed that loss-of-services damages remained available under the newly-combined act.” The court found that these “dissimilarities place this case on different footing from Daher.” Defendants argued that even if the damages were available under the WDA, “plaintiff’s requested loss-of-services damages were too speculative.” After reviewing case law on speculative damages generally, the court rejected this argument. It concluded that “a jury is better suited to sort out the contested issues as factual matters instead of this Court deciding them as matters of law.” Reversed in part, affirmed in part, and remanded.