Michigan Appellate Court Allows Medical Malpractice Wrongful Death Claim For Nonviable Fetus

162017_132140396847214_292624_nIn its decision filed on June 16, 2015, the Michigan Court of Appeals (“Appellate Court”) overturned the trial court’s granting summary judgment in favor of the defendants with regard to the plaintiff’s wrongful death claim on behalf of her nonviable fetus that alleged that the medical negligence of the defendant physician led to the death of the fetus.

The plaintiff had alleged in her Michigan medical malpractice wrongful death lawsuit that the defendants were negligent in the prenatal care and treatment of the plaintiff that caused the premature birth and death of her nonviable fetus at 18.2 weeks. The plaintiff alleged that the defendant physician negligently failed to perform a cerclage that led to the plaintiff suffering a miscarriage, despite the defendant physician knowing that the plaintiff had two previous pregnancy losses as a consequence of cervical insufficiency (a cerclage involves placing stitches to close the cervix during pregnancy to prevent premature birth or pregnancy loss).

The Appellate Court held that the plaintiff’s Michigan medical malpractice lawsuit had to be brought under the wrongful-death act, MCL 600.2922, which provides the exclusive remedy under which a plaintiff may seek damages for a wrongfully caused death, because it alleged that the injuries to the nonviable fetus resulted in death. Prior to an amendment to Michigan’s wrongful death statute in 2005, a cause of action could not be maintained for the loss of a nonviable fetus. The 2005 amendment added the words, “or death as described in section 2922a,” to the wrongful death statute (section 2922a 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”).

The Appellate Court held that the effect of the 2005 amendment was merely to expand the scope of actionable deaths to include the death of an embryo or fetus: the first requirement for a wrongful-death action is a death; the second requirement is that the death “be caused by wrongful act, neglect, or fault of another”; and, the third requirement is that the “wrongful act, neglect, or fault of another” be such that, if death had not ensued, a cause of action could have been filed against the responsible party and damages recovered from them. The Appellate Court stated, “The 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 Appellate Court held that the plaintiff “was not 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. To the contrary, under the wrongful-death statute, MCL 600.2922(1), a cause of action may be brought when death ‘is caused by wrongful act, neglect, or fault of another . . . .’; the more expansive terms ‘neglect’ and ‘fault of another’ that [the Legislature] included in MCL 600.2922(1) [ ] permit liability on the basis of omissions.” Since the plaintiff alleged that the ‘omission’ that caused the fetus’ death was the failure to perform a cerclage, the Appellate Court held that the plaintiff had stated a valid cause of action under MCL 600.2922.

Simpson v. Alex Pickens, Jr. & Associates, M.D., P.C., et al., C320443.

If you or a loved one suffered serious injury (or worse) as a result of medical negligence in Michigan or in another U.S. state, you should promptly find a Michigan medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Monday, June 22nd, 2015 at 5:05 am. Both comments and pings are currently closed.

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