854 N.W.2d 901
Mich. Ct. App.2014Background
- Plaintiff Lori Cichewicz sued her gynecologist, Dr. Michael S. Salesin (and related entities), after becoming pregnant in 2010 and giving birth to a child with Down syndrome; she alleges she was told in 2007 her fallopian tubes were blocked and that birth control was unnecessary.
- Salesin attempted an Essure procedure and a laparoscopic tubal ligation in 2007 but could not place devices because he observed occluded tubes; a subsequent hysterosalpingogram showed no dye passage, and Salesin advised no further contraception was needed.
- Plaintiff stopped hormonal contraception based on that advice and later became pregnant; she seeks traditional malpractice damages (pain, medical expenses, lost wages, emotional distress) and also damages for costs of raising the child to majority.
- Defendants moved for summary disposition arguing (1) MCL 600.2971 bars recovery of child-rearing costs for wrongful-conception claims except where conduct was intentional or grossly negligent, and (2) plaintiff cannot show gross negligence here.
- The trial court denied summary disposition, finding a factual question on gross negligence; the Court of Appeals (on remand from the Supreme Court) affirms in part, reverses in part, and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCL 600.2971 permits recovery of child-rearing costs in wrongful-conception claims premised on gross negligence | Cichewicz: §2971 does not bar recovery of traditional or child-rearing damages if gross negligence is shown | Salesin: §2971 preserves common-law bar such that child-rearing costs are never recoverable; at most intentional/gross negligence claims allowed but not child-rearing costs | Held: §2971(3) bars child-rearing costs for ordinary negligence but §2971(4) expressly permits recovery of those costs where conduct is intentional or grossly negligent |
| Whether MCL 600.2971 abolished wrongful-conception as a cause of action | Cichewicz: statute does not eliminate wrongful-conception malpractice claims | Salesin: statute effectively precludes wrongful-conception claims except for intentional/grossly negligent acts | Held: statute did not abolish wrongful-conception claims; it limits certain damages for ordinary negligence but permits full damages (including child-rearing costs) if intentional or grossly negligent |
| Whether plaintiff may recover traditional medical malpractice damages (pregnancy pain, medical costs, lost wages, emotional distress) in a wrongful-conception claim | Cichewicz: entitled to traditional malpractice damages | Salesin: §2971 or common law prohibits all such recovery in wrongful-conception cases | Held: Plaintiff may recover traditional malpractice damages; §2971(3) restricts only child-rearing costs for negligence claims, not other malpractice damages |
| Whether evidence created a genuine issue of material fact that Salesin’s conduct was grossly negligent | Cichewicz: Salesin told her pregnancy was impossible and failed to prescribe contraception — raises factual dispute on gross negligence | Salesin: his conduct was reasonable given history, diagnostic findings, and low pregnancy probability; no gross negligence | Held: No genuine factual dispute; his conduct did not meet the GTLA standard for gross negligence and summary disposition should have been granted as to recovery of child-rearing costs premised on gross negligence |
Key Cases Cited
- Odom v. Wayne County, 482 Mich 459 (definition of gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results”)
- Maiden v. Rozwood, 461 Mich 109 (standard of review for summary disposition)
- Taylor v. Kurapati, 236 Mich App 315 (background on wrongful-birth/wrongful-conception causes and damages)
- Rouse v. Wesley, 196 Mich App 624 (wrongful-conception damages — customary child-rearing costs not recoverable at common law)
- Rinard v. Biczak, 177 Mich App 287 (authority on recoverable pregnancy-related damages)
- Tarlea v. Crabtree, 263 Mich App 80 (gross negligence requires almost willful disregard / singular disregard for substantial risks)