Johnson v. Pastoriza
491 Mich. 417
| Mich. | 2012Background
- Candice Johnson suffered a 20-week fetal loss and sued Dr. Pastoriza for negligence under MCL 600.2922a and for medical malpractice.
- The 1998 and 2002 amendments to 600.2922a expanded liability to miscarriages, stillbirths, and fetal death; 2005 PA 270 added cross-reference to 600.2922 and its death provision.
- The 2005 amendment to 600.2922(1) raised retroactivity concerns because it was given immediate effect but did not state retroactive application.
- Candice had a history of incompetent cervix and prior cerclage success; in this pregnancy, Pastoriza did not perform a cerclage and later, an emergency cerclage failed.
- Ultrasounds showed a live fetus until November 1, 2005, when preterm labor began and the 20-week fetus was lost; the procedure then caused a cervical tear that could affect future fertility.
- The circuit court denied summary disposition and allowed amendment; the Court of Appeals held the 2005 amendment retroactive and that Pastoriza’s refusal could be an affirmative act under 600.2922a; the Michigan Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2005 PA 270 applies retroactively. | Retroactivity follows legislative intent; amendment clarifies rights and should apply. | No retroactivity intended; act applies prospectively only. | Amendment not retroactive; does not apply to preexisting claims. |
| Whether 600.2922a requires an affirmative act or allows omissions. | Defendant’s refusal to perform cerclage constitutes an affirmative act. | Omission or failure to act is not an affirmative act under the statute. | 600.2922a requires an affirmative act; omissions do not constitute liability. |
| Whether the wrongful-death claim for a nonviable fetus is viable under the amended statute. | Amendment cross-references fetal death to permit wrongful-death recovery. | Amendment not retroactive; wrongful-death rights do not extend to preexisting facts. | Amendment not retroactive; wrongful-death claim as to preexisting facts not permitted. |
| Whether the case can proceed under 600.2922 as amended or only under 600.2922a. | Claims could be pled under either statute. | Only viable under statute that matches timing and act type. | Plaintiffs may not proceed under 600.2922; 600.2922a governs affirmative-act liability; omissions not liable. |
Key Cases Cited
- McClain v Univ of Mich Bd of Regents, 256 Mich App 492 (2003) (nonviable fetus not a person under wrongful-death act; legislature clarified later)
- People v Thomas, 438 Mich 448 (1991) (distinguishes between omission and affirmative act in law enforcement context)
- Lynch v Flex Technologies, 463 Mich 578 (2001) (remedial vs substantive rights; retroactivity considerations)
- White v Gen Motors Corp, 431 Mich 387 (1988) (remedial statute interpretation; legislative intent governs retroactivity)
- Sizemore v Smock, 430 Mich 283 (1988) (discussion on damages; non-recoverability of certain losses under certain acts)