COA: Confirms wrongful death actions rooted in medical malpractice can be brought on behalf of nonviable fetuses

Aug 06, 2015

Saurbier

The Michigan Court of Appeals recently held in Simpson v Alex Pickens, Jr & Assoc, M.D., P.C. that an omission could serve as the basis for a medical malpractice claim. Brought on behalf of decedent, a nonviable fetus of 18.2 weeks, resulting in death, Simpson, alleged that she suffered a miscarriage as a result of her OB/GYN’s negligent prenatal care and failure to perform a cerclage. Simpson maintained that Dr. Pickens supposedly had knowledge that she had two previous pregnancy losses as a result of cervical insufficiency, and therefore, a cerclage should have been performed.

The defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and MCR 2.116 (C)(10) arguing that dismissal was required under MCL 600.2922a which provides, in part, “(1) A person who commits a wrongful or negligentact against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual, or physical injury or the death of the embryo or fetus.” The defendants argued that the underlying basis for Simpson’s wrongful-death claim was an omission – the failure to perform a cerclage – and that an affirmative act was required to bring a claim under MCL 600.2922a.

Simpson’s attorney responded that her claim was not rooted in MCL 600.2922a, but rather, controlled by MCL 600.2922. A wrongful-death claim brought under MCL 600.2922 imposes liability for death caused by a “wrongful act, neglect, or fault of another.” Pursuant to MCL 600.2922, omissions could constitute grounds for medical malpractice actions.

Wayne County Circuit Judge Lita M. Popke dismissed Simpson’s lawsuit, and held that when MCL 600.2922 was amended in 2005, it incorporated “death as described in 2922a,” which meant that only affirmative acts could be the basis for liability in cases involving nonviable fetuses.

On June 16, 2015, the Court of Appeals reversed, and held that a wrongful death claim could be based on medical malpractice for a nonviable fetus. The Court, comprised of Judges Mark J. Cavanagh, Patrick M. Meter, and Kurtis T. Wilder, held that Simpson could sue under MCL 600.2922 because the Defendants did not offer a “sound legal basis” for treating a fetus wrongful-death claim any differently than a wrongful-death claim for a “person.” Judge Cavanagh wrote “[t]he nature and purpose of this type of action does not change because it is the death of an embryo or fetus giving rise to the wrongful-death action.”

The Court of Appeals pointed out that there had been some confusion in reconciling the 2005 amendment of MCL 600.2922 with MCL 600.2922a. As amended, MCL 600.2922 provides “Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused.” (Emphasis added to highlight the amendatory language). The Trial Court held that according to this language MCL 600.2922a was incorporated into MCL 600.2922. However, the Court of Appeals disagreed, and held that a wrongful-death claim on behalf of a fetus did not have to be brought under MCL 600.2922a. Simpson did not bring her case under MCL 600.2922a, and she was not therefore “required to allege that defendants committed an affirmative or positive act that caused her decedent’s death in order to state a claim under MCL 600.2922.”

The Michigan Court of Appeals’ ruling will have a significant impact on what types of wrongful death claims can be brought on behalf of an embryo (8 weeks of gestation) or nonviable fetuses, and the potential damages that may be recovered. Any miscarriage or stillbirth may allegedly be caused by an omission or an act, whether in a claim brought under a medical, general liability or vehicle theory. Under the Wrongful Death Statute, individuals can bring claims for damages such as loss of society and companionship (low cap in this instance), plus loss of financial support, loss of future earnings and reasonable medical, hospital and funeral and burial expenses.

This volume of the Newsflash was authored by Jacqueline E. ClarkeContributors included Scott A. Saurbier and Elizabeth A. Pyden Please feel free to call or email with questions or comments.

email: shockm@saurbier.com

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