Johnson v. Pastoriza

• Decision Date: 05 June 2012
• Docket Number: Docket No. 142127.,Calendar No. 5.
• Citation: Johnson v. Pastoriza, 491 Mich. 417, 818 N.W.2d 279 (Mich. 2012)
• Parties: JOHNSON v. PASTORIZA.
• Court: Michigan Supreme Court

491 Mich. 417

818 N.W.2d 279

JOHNSON

v.PASTORIZA.

Docket No. 142127.

Calendar No. 5.

Supreme Court of Michigan.

Argued Nov. 9, 2011.

Decided June 5, 2012.

Ferris & Salter, P.C., Ann Arbor (by Don Ferris), for plaintiffs.

Kitch Drutchas Wagner Valitutti & Sherbook, Detroit (by Beth A. Wittmann) for defendants.

Opinion of the Court

ZAHRA, J.

Candice Johnson suffered a lost pregnancy at 20 weeks' gestation, and on behalf of herself and the deceased fetus, Baby Johnson, sued Rajan Pastoriza, M.D., and his professional corporation, alleging negligence under MCL 600.2922a, which provides that a person who commits “a wrongful or negligent act against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual, or physical injury to or the death of the embryo or fetus,” and medical malpractice. Defendants moved for summary disposition. The circuit court refused to grant summary disposition, but ordered plaintiffs to appoint a personal representative for the estate of Baby Johnson and to amend the complaint to bring the negligence claim that had been brought on behalf of Baby Johnson through the wrongful-death statute, MCL 600.2922. Defendants appealed by leave granted. The Court of Appeals held that MCL 600.2922, as amended by 2005 PA 270, effective December 19, 2005, to incorporate the language “or death as described in section 2922a,” applied retroactively to plaintiffs' claim for wrongful death, which arose no later than November 1, 2005. The Court of Appeals further held that Pastoriza's refusal to perform a cerclage was a “wrongful or negligent act” under MCL 600.2922a.

We hold that the 2005 amendment of the wrongful-death statute, incorporating the language “or death as described in” MCL 600.2922a, does not apply to claims arising before the effective date of the amendment. The Legislature only intended the 2005 amendment to apply to claims arising on or after the effective date. Further, because defendants would be subjected to liability that did not exist at the time the cause of action arose, the amendment is not remedial and, therefore, cannot be deemed retroactive. Because the 2005 amendment of MCL 600.2922(1), incorporating “death as described in” MCL 600.2922a, is not retroactive, plaintiffs can only proceed under MCL 600.2922a.¹ In regard to plaintiffs' claim under MCL 600.2922a, we hold that MCL 600.2922a plainly requires an affirmative act and that an omission or refusal to act cannot constitute an affirmative act. We therefore reverse the judgment of the Court of Appeals and remand the case to the circuit court for entry of summary disposition in favor of defendants on the wrongful-death claim.²

I. FACTUAL HISTORY

Candice had a history of miscarriages because of an incompetent cervix. Using a cerclage procedure between 13 and 16 weeks' gestation, however, Candice was able to have three consecutive full-term pregnancies. For her next pregnancy, she saw Pastoriza as her obstetrician. Pastoriza was aware of her success with the cerclage procedure and had removed her cerclage suture shortly before she last gave birth.

In September 2005, Candice experienced vaginal bleeding and went to Foote Hospital in Jackson. Emergency personnel recommended that she rest and meet with her treating obstetrician. A few days later, she saw Pastoriza, but he did not perform a cerclage. At that time an ultrasound showed a live, 12–week–old fetus. On October 12, 2005, another ultrasound showed a live fetus at almost 17 weeks' gestation. The ultrasound also showed that the length of Candice's cervix was roughly the same as when the previous cerclages had been performed. On October 19, 2005, Candice complained to Pastoriza that she felt preterm, labor-like cramping. She asked Pastoriza to perform a cerclage, but he did not do so. On November 1, 2005, Candice's cervix dilated and she went into premature labor. She was transferred to Sparrow Hospital in Lansing and received an emergency cerclage, but lost the 20–week–old fetus shortly after the transfer. The failed emergency cerclage also resulted in a significant and permanent cervical tear that might prevent Candice from having another child.

II. LEGAL BACKGROUND

Following amendment by 1985 PA 93, subsection (1) of Michigan's wrongful-death statute, MCL 600.2922(1), provided that

[w]henever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances that constitute a felony.

This version of MCL 600.2922 did not permit a plaintiff to bring a claim for the death of a nonviable fetus because a nonviable fetus was not viewed as a “person.” ³

In 1998, the Legislature created a new statute, MCL 600.2922a. Section 2922a, which became effective on January 1, 1999, is separate from the wrongful-death statute, and imposes liability for wrongful or negligent acts against a pregnant woman that result in the pregnant woman's miscarriage or stillbirth or “physical injury” to the fetus. MCL 600.2922a, as added by 1998 PA 2011, provided:

(1) A person who commits a wrongful or negligent act against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual or physical injury to the embryo or fetus.

(2) This section does not apply to any of the following:

(a) An act committed by the pregnant individual.

(b) A medical procedure performed by a physician or other licensed medical professional within the scope of his or her practice and with the pregnant individual's consent or the consent of an individual who may lawfully provide consent on her behalf or without consent as necessitated by a medical emergency.

(c) The lawful dispensation, administration, or prescription of medication.

(3) This section does not prohibit a civil action under any other applicable law.

(4) As used in this section, “physician or other licensed medical professional” means a person licensed under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.

In 2002, the Legislature amended MCL 600.2922a. The amendment extended civil liability to wrongful or negligent acts that caused the “death” of an embryo or fetus and changed the term “medical professional” to “health professional.” ⁴MCL 600.2922a, as amended by 2002 PA 164, currently provides:

(1) A person who commits a wrongful or negligent act against a pregnant individual is liable for damages if the act results in a miscarriage or stillbirth by that individual, or physical injury to or the death of the embryo or fetus.

(2) This section does not apply to any of the following:

(a) An act committed by the pregnant individual.

(b) A medical procedure performed by a physician or other licensed health professional within the scope of his or her practice and with the pregnant individual's consent or the consent of an individual who may lawfully provide consent on her behalf or without consent as necessitated by a medical emergency.

(c) The lawful dispensation, administration, or prescription of medication.

(3) This section does not prohibit a civil action under any other applicable law.

(4) As used in this section, “physician or other licensed health professional” means a person licensed under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.

In 2003, the Court of Appeals addressed a medical malpractice action concerning a miscarriage in McClain v. Univ. of Mich. Bd. of Regents.⁵ In McClain, the mother sought to recover damages for emotional distress resulting from the medical malpractice that had caused the miscarriage.⁶ The defendant moved for summary disposition, claiming that the plaintiff was not entitled to recover damages arising from the loss of her deceased fetus.⁷ The trial court granted summary disposition, holding that the plaintiff had failed to state a valid medical malpractice claim “with regard to delivery of a nonviable fetus.” ⁸

The Court of Appeals reversed.⁹ It first noted that a wrongful-death action under MCL 600.2922 could not be brought on behalf of the fetus because the wrongful-death statute applied only to a “person” and the plaintiff's nonviable fetus was not a person.¹⁰ The mother, therefore, could not recover for loss of society and companionship under MCL 600.2922. ¹¹ Significantly, the McClain panel did not recognize or address the import of MCL 600.2922a.

The Legislature amended the wrongful-death statute in 2005 to specifically incorporate and cross-reference MCL 600.2922a. Because of the 2005 amendment, MCL 600.2922(1) currently reads as follows:

Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony. [Emphasis added.]

Public Act 270 of 2005 was signed into law and given immediate effect as of December 19, 2005.

III. PROCEDURAL HISTORY

Plaintiffs filed a complaint against defendants alleging negligence under MCL 600.2922a and medical malpractice.The complaint did not mention wrongful death or MCL 600.2922.

Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). Defendants first...