This case is before the Court on order of our Supreme Court for consideration, as
On August 8, 2011, plaintiff, Lori Cichewicz, filed a complaint against defendants Michael S. Salesin, M.D.; Michael S. Salesin, M.D., P.L.C.; and Walnut Lake OB/GYN, P.L.L.C., averring that she was advised by Salesin in September 2007 that her fallopian tubes were blocked and, therefore, it was no longer necessary for her to use contraceptives. However, in October 2010, plaintiff became pregnant and subsequently gave birth to her daughter, who has Down syndrome.
In Count I of her complaint, plaintiff brought a claim of “gross negligence/medical malpractice” against Salesin. Plaintiff alleged that the standard of care required Salesin “to refrain from informing [her] that it was impossible her [sic] to become pregnant,” “to refrain from informing [her] that she no longer required birth control,” and to “continue to provide [her] with birth control, given her sincere stated desire not to become pregnant.” Plaintiff further alleged that Salesin “grossly violated the standard of care” by taking contrary actions. That is, plaintiff alleged, “Salesin’s negligent actions and omissions, as outlined above, were so reckless as to demonstrate a substantial lack of concern, on the part of Salesin, for whether [plaintiff] would become pregnant as well as the ramifications of [plaintiffs] becoming pregnant.” Plaintiff claimed that, as a direct and proximate result of Salesin’s violations of the standard of care, she stopped using birth control and became pregnant; consequently, she “was entitled to damages as are deemed fair and just regarding the pregnancy and continuing attendant care of her child. . . .” Specifically, plaintiff sought damages for physical injury, emotional distress, mental anguish, medical expenses related to her pregnancy, incidental expenses resulting from her pregnancy, denial of social pleasures and enjoyments because of her pregnancy, emotional distress related to knowing she would deliver a child with Down syndrome, loss of wages and earning capacity, as well as medical, daily living, attendant care, and educational expenses, and all other expenses associated with raising her child.
In Count II of her complaint, plaintiff brought a claim of vicarious liability against Walnut Lake OB/GYN, alleging that Salesin was its agent or employee when the purported negligence occurred. In Count III, plaintiff brought a claim of vicarious liability against Michael S. Salesin, M.D., P.L.C., alleging that Salesin was its agent or employee when the purported negligence occurred.
In June 2012, defendants moved for summary disposition, arguing that plaintiff could not establish that a genuine issue of material fact existed with regard to whether any alleged act or omission of Salesin constituted gross negligence as required by MCL 600.2971 in wrongful-conception cases. In particular, defendants noted that during 14 years of plaintiffs marriage, she did not use birth control while having sexual intercourse two or three times a week without getting pregnant. However, in 2005, after her divorce, she began taking birth control pills and remained on the medication at the time of her annual gynecological physical in June 2007, when she requested permanent sterilization. Thereafter, in August 2007, Salesin attempted a sterilization procedure
Plaintiff responded to defendants’ motion for summary disposition, arguing that MCL 600.2971 did not prohibit her claim for traditional medical malpractice damages, regardless of whether she could demonstrate gross negligence. Plaintiff further argued that she had, in fact, presented sufficient evidence to create a question of material fact regarding whether Salesin’s conduct amounted to gross negligence.
Defendants replied that there was “no merit to plaintiffs argument that the plain language of MCL 600.2971 entitles plaintiff to recover damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority on a wrongful pregnancy or wrongful conception claim in cases of intentional or grossly negligent acts or omissions[.]” Defendants argued that MCL 600.2971 “specifically prohibits an action for damages in a wrongful conception case, and provides that the prohibition does not apply to a civil action for damages for an intentional or grossly negligent act or omission.” Defendants asserted that this statute did not abrogate the “traditional common-law rule that a person may not recover damages in a wrongful conception action. . . . [T]he common law would apply to prohibit a wrongful conception action for damages until the child’s age of majority.” Further, defendants argued, plaintiff was not entitled to recover “damages in her own right as a result of her pregnancy, including her own medical expenses, pain and suffering, and lost wages” because, “[g]iven that [MCL 600.2971(3) and (4)] clearly prohibit[] ‘a person’ from bringing a wrongful pregnancy or wrongful conception claim, plaintiffs claim in this case cannot go forward.” Defendants also reiterated their argument that plaintiff had not established a question of fact on the issue of gross negligence.
Following oral argument, the trial court denied defendants’ motion for summary disposition. After noting that defendants’ motion was premised on MCR 2.116(C)(10), the trial court stated, “MCL 600.2971 prohibits claims for wrongful conception, including claims for the cost of raising a child to the age of majority,
Based on this evidence and particularly the testimony of plaintiff that the chance of the pregnancy was impossible according to him; and that even if plaintiff wanted another child. .. she would not be able to do so; further, that she had testified she specifically asked Salesin about going back to birth control as a precautionary measure; and that he said there’s no need for birth control as the tubes are blocked; his own testimony that he had seen tubes come unblocked once they’re blocked, the Court finds that evidence exists creating a question of fact as to whether or not the defendant’s act or omission was so reckless as to demonstrate a substantial lack of concern for whether an injury would result; and thus, should be decided by a trier-of-fact.
The trial court then entered an order denying defendants’ motion for summary disposition. On April 10, 2013, the trial court entered a stipulated order for the dismissal of all claims against defendant Walnut Lake OB/GYN, P.L.L.C. Defendants then filed an application for leave to appeal in this Court, which was denied. Cichewicz v Salesin, unpublished order of the Court of Appeals, entered May 16, 2013 (Docket No. 312806). Thereafter, defendants applied for leave to appeal in our Supreme Court, which, in lieu of granting leave to appeal, remanded the matter to us for consideration as on leave granted. Cichewicz v Salesin,
On appeal, defendants argue that the trial court erred by ruling that MCL 600.2971 creates a cause of action for wrongful conception caused by gross negligence and permits recovery of the costs of raising a child to the age of majority.
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Maiden v Rozwood,
MCL 600.2971 addresses three types of claims: wrongful-life claims, wrongful-birth claims, and wrongful-conception (also known as wrongful-pregnancy) claims. It provides:
(1) A person shall not bring a civil action on a wrongful birth claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
(2) A person shall not bring a civil action for damages on a wrongful life claim that, but for the negligent act or omission of the defendant, the person bringing the action would not or should not have been born.
(3) A person shall not bring a civil action for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority, on a wrongful pregnancy or wrongful conception claim that, but for an act or omission of the defendant, the child would not or should not have been conceived.
(4) The prohibition stated in subsection (1), (2), or (3) applies regardless of whether the child is born healthy or with a birth defect or other adverse medical condition. The prohibition stated in subsection (1), (2), or (3) does not apply to a civil action for damages for anintentional or grossly negligent act or omission, including, but not limited to, an act or omission that violates the Michigan penal code, 1931 PA 328 , MCL 750.1 to 750.568.
A wrongful-birth claim is brought by the parents of a child with a birth defect and generally alleges that the defendant’s failure to inform them of the risk of the birth defect deprived them of the opportunity to avoid or terminate the pregnancy. Taylor v Kurapati,
A wrongful-life claim is brought by or on behalf of a child with a birth defect and alleges that, but for the defendant’s negligence, the child would not have been born. Taylor,
This case, however, is more analogous to a wrongful-conception medical malpractice case. Wrongful-conception claims generally contend that
the defendant’s negligent conduct failed to prevent the birth of a child in the following situations: (1) where a physician negligently performs a vasectomy or tubal ligation or when a physician, pharmacist, or other health professional provides any other type of ineffective contraception, the parents conceive, and the birth of a healthy, but unplanned, baby results; (2) where a physician negligently fails to diagnose a pregnancy, thereby denying the mother the choice of termination of the pregnancy at a timely stage, and the birth of a healthy, but unwanted, baby results; and (3) where a physician negligently attempts to terminate the pregnancy and the birth of a healthy, but unwanted, baby results. [Taylor,236 Mich App at 325-326 (citations omitted).]
This case differs from the typical wrongful-conception case, however, in that plaintiff alleges that Salesin’s grossly negligent advice regarding her ability to conceive, and failure to prescribe birth control pills, led to an unplanned, unwanted pregnancy. This case also differs in that plaintiff gave birth to a daughter with Down syndrome.
Unlike wrongful-birth and wrongful-life claims, wrongful-conception claims have consistently been permitted in Michigan; however, the types of damages recoverable in wrongful-conception cases have been disputed. See, e.g., Rouse,
After the Taylor decision was issued in 1999, our Legislature passed
The rules of statutory interpretation are well established. “[0]ur purpose is to discern and give effect to the Legislature’s intent.” Echelon Homes, LLC v Carter Lumber Co,
Because statutes must be read as a whole and in context, Mich Props, LLC v Meridian Twp,
(1) A person shall not bring a civil action on a wrongful birth claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
(2) A person shall not bring a civil action for damages on a wrongful life claim that, but for the negligent act or omission of the defendant, the person bringing the action would not or should not have been born.
(3) A person shall not bring a civil action for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority, on a wrongful pregnancy or wrongful conception claim that, but for an act or omission of the defendant, the child would not or should not have been conceived.
Contrary to subsections (1) and (2) — which prohibit civil actions premised on wrongful-birth and wrongful-life claims — subsection
The prohibition stated in subsection (1), (2), or (3) does not apply to a civil action for damages for an intentional or grossly negligent act or omission, including, but not limited to, an act or omission that violates the Michigan penal code,1931 PA 328 , MCL 750.1 to 750.568.
The prohibition set forth in each subsection is denoted by the words “shall not.” See 1031 Lapeer LLC v Rice,
Contrary to defendants’ argument, MCL 600.2971 did not “create” a cause of action for wrongful conception. As discussed earlier, claims for wrongful conception have long been actionable in this state, although plaintiffs could not recover as damages “the customary cost of raising and educating the child.” Rouse,
“Common-law rules apply to medical malpractice actions unless specifically abrogated by statute.” O’Neal v St John Hosp & Med Ctr,
Next, defendants argue that even if plaintiff can bring an action for wrongful conception caused by gross negligence, she failed to establish a genuine issue of material fact that Salesin’s conduct was grossly negligent. We agree.
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Maiden,
MCL 600.2971 does not define the term “grossly negligent,” and there are no published cases defining the term in the context of MCL 600.2971. However, in contexts where civil liability would only exist if a defendant’s conduct was grossly negligent, Michigan courts have generally applied the standard articulated in the governmental tort liability act (GTLA), MCL 691.1401 et seq., which defines gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a); see also Jennings v Southwood,
We conclude that the definition of “gross negligence” set forth in the GTLA is the most appropriate standard to be applied in the context of MCL 600.2971. Similar to the GTLA, MCL 600.2971 provides immunity to potential defendants for ordinary negligence with regard to wrongful-birth and wrongful-life claims in subsections (1) and (2). MCL 600.2971 also prohibits the recovery of certain damages from a defendant in a wrongful-conception claim premised on ordinary negligence, § 2971(3), while permitting the recovery of those damages in a claim premised on gross negligence, § 2971(4). Therefore,
In this case, even considering that plaintiff is entitled to have the facts viewed in the light most favorable to her and to have all legitimate inferences considered in her favor, we conclude that plaintiff failed to establish a material question of fact regarding whether Salesin’s conduct was grossly negligent. See Jackson v Saginaw Co,
Plaintiffs medical records indicated that during 14 years of her marriage she did not use any birth control methods and did not get pregnant, despite having an active sex life. Salesin testified that he attempted a sterilization procedure, through which devices would be implanted into each fallopian tube that would prevent pregnancy as effectively as a tubal ligation, but it could not be completed because both of plaintiffs fallopian tubes were occluded. Salesin also testified that he confirmed that plaintiffs fallopian tubes were occluded during a hysterosalpingogram procedure that was later performed. Salesin testified that, considering plaintiffs age and her history of infertility despite an active sex life, in conjunction with the results of both the failed sterilization procedure and the hysterosalpingogram, he advised plaintiff that no additional forms of sterilization or contraception were recommended. Although Salesin admitted in his deposition that he had seen blocked fallopian tubes become unblocked, he noted that there is also a failure rate with both tubal ligation and birth control pills, but additional forms of birth control are not recommended in those instances even considering the failure rate. Moreover, in this case, because of plaintiffs history of infertility, as well as his visualization of plaintiffs occluded fallopian tubes both during the attempted sterilization procedure and during the hysterosalpingogram, he would not expect plaintiffs fallopian tubes to subsequently become unblocked and he had never seen such an occurrence in a similarly situated patient. That is, he had never seen a patient’s fallopian tubes open up enough for the patient to get pregnant after he had “looked at the tubes, found them to be blocked, [and] had an x-ray test confirming that they were blocked, never.” In fact, Salesin testified, the probability of pregnancy in the population of women who are 41 years old, without any known fertility issues, is less than one percent. Further, he stated that because the risks associated with birth control pills, although slight, were probably greater than the risk of plaintiff getting pregnant, they would not have been indicated even if she had requested them. Although plaintiff testified that Salesin told her it was impossible for her to get pregnant, Salesin denied that he would ever use the term “impossible” because “in medicine nothing is 100 percent.” In any case, Salesin admitted that he was convinced “that it would be unnecessary to use any other form of birth control because [he] had lots of evidence to show . . . that she wasn’t going to be able to get pregnant.”
almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks. It is as though, if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge. \Id. at 90.]
In this case, Salesin’s advice to plaintiff regarding the necessity of contraception was based on his more than 30 years of experience and grounded on several objective and persuasive factors that informed his medical judgment and subsequent actions, including plaintiffs age, her multiple-year history of infertility despite an active sex life with two different partners, Salesin’s inability to place devices into either of plaintiffs fallopian tubes because of occlusion, and his visualization of the fallopian tube occlusions during the hysterosalpingogram. Accordingly, we reverse the trial court’s order denying defendants’ motion for summary disposition with regard to plaintiffs claim that, because of Salesin’s gross negligence, she was permitted to seek recovery “for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority” on this wrongful-conception medical malpractice claim.
Next, defendants argue that plaintiff was not permitted to seek the recovery of even traditional damages on her wrongful-conception medical malpractice claim because neither MCL 600.2971 nor the common law allows for the recovery of such damages. We disagree.
In Michigan, as a general rule, plaintiffs are entitled to recover civil damages for medical malpractice, as long as they satisfy their evidentiary burdens. See MCL 600.2912a. Defendants have provided no authority holding that, in a wrongful-conception medical malpractice action, a plaintiff may not recover damages generally permitted in medical malpractice actions. And prior decisions of this Court have consistently held that a plaintiff in a wrongful-conception action is entitled to recover traditional damages, as discussed earlier. Rinard,
Further, consistent with the common law, the language of MCL 600.2971 implies that such damages are compensable in a wrongful-conception action. “[Although only an aid to interpretation, we note that the maxim expressio unius est exclusio alterius (the expression of one thing suggests the exclusion of all others) means that the express mention of one thing in a statutory provision implies the exclusion of similar things.” People v Carruthers,
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain jurisdiction.
Notes
Cichewicz v Salesin,