JOHNSON V PASTORIZA
Docket No. 142127
Supreme Court of Michigan
June 5, 2012
491 Mich. 417
Argued November 9, 2011 (Calendar No. 5).
In an opinion by Justice ZAHRA, joined by Chief Justice YOUNG and Justices MARKMAN and MARY BETH KELLY, the Supreme Court held:
The 2005 amendment of the wrongful-death statute, which incorporated the language “or death as described in”
- Plaintiffs’ cause of action accrued before the effective date of 2005 PA 270. The intent of the Legislature governs whether a statute applies retroactively. The Legislature failed to include any language in 2005 PA 270 indicating that it should be applied retroactively. And while statutes that operate in furtherance of a
remedy or mode of procedure and neither create new rights nor destroy, enlarge, or diminish existing rights are generally held to apply retroactively unless a contrary legislative intent is manifested, this exception to the presumption of prospective application was inapplicable because 2005 PA 270 affected substantive rights. Accоrdingly, the Court of Appeals erred by holding that MCL 600.2922 , as amended by 2005 PA 270, could be applied retroactively and that plaintiffs could proceed under that statute. - Because the 2005 amendment of
MCL 600.2922 was not retroactive, plaintiffs could only have proceeded with their wrongful-death claim underMCL 600.2922a .MCL 600.2922a(1) , however, provides that a person who commits “a wrongful or negligent act” against a pregnant woman 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 fetus or embryo. The Legislature did not use expansive terms in the statute such as “neglect” or “fault of another” that would permit liability on the basis of omissions. Thus, from the language used by the Legislature, it is clear that the Legislature intended to impose liability underMCL 600.2922a(1) only for affirmative or positive acts. Pastoriza‘s alleged refusal to perform a cerclage cannot be characterized as anything other than a willful and knowing failure to do something, which the Supreme Court has long held is the omission of a duty, not an affirmative act. Thus, plaintiffs failed to state a claim underMCL 600.2922a because they did not allege that defendants committed a wrongful or negligent act, and the trial court erred by denying defendants’ motions for summary disposition with regard to plaintiffs’ claims alleging negligence underMCL 600.2922a .
Reversed and remanded for entry of partial summary disposition in favor of defendants.
Justice CAVANAGH, joined by Justice MARILYN KELLY, concurring in the result only, wrote separately to emphasize that the majority opinion did not address whether a plaintiff may base a claim for the wrongful death of a nonviable fetus on a defendant‘s omission occurring after the effective date of 2005 PA 270. Rather, it appeared that the majority‘s holding only applied to claims for the wrongful death of a nonviable fetus arising out of omissions occurring before the effective date of the act.
Justice HATHAWAY, dissenting, would have affirmed the decision of the Court of Appeals. Plaintiffs’ allegations centered on the fact that Pastoriza specifically refused to perform a requested medical procedure.
- STATUTES — RETROACTIVITY — WRONGFUL-DEATH STATUTE.
The wrongful-death statute,MCL 600.2922 , as amended by 2005 PA 270, may not be applied retroactively. - NEGLIGENCE — EMBRYOS OR FETUSES — AFFIRMATIVE ACTS — OMISSIONS OF DUTIES.
MCL 600.2922a(1) provides that a person who commits a wrongful or negligent act against a pregnant wоman is liable for damages if the act results in a miscarriage or stillbirth by that individual or physical injury to or death of a fetus or embryo; liability may be imposed underMCL 600.2922a(1) only for an affirmative act; liability may not be imposed under the statute for an omission or a refusal to act.
Ferris & Salter, P.C. (by Don Ferris), for plaintiffs.
Kitch Drutchas Wagner Valitutti & Sherbrook (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
We hold that the 2005 amendment of the wrongful-death statute, incorporating the language “or death as described in”
600.2922a plainly requires an affirmative act and that an omission or refusal to аct 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
II. LEGAL BACKGROUND
Following amendment by 1985 PA 93, subsection (1) of Michigan‘s wrongful-death statute,
[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
In 1998, the Legislature created a new statute,
(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 to333.18838 .
In 2002, the Legislature amended
(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 bеhalf 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 to333.18838 .
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
The Court of Appeals reversed.9 It first noted that a wrongful-death action under
The Legislature amended the wrongful-death statute in 2005 to specifically incorporate and cross-reference
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
Defendants moved for summary disposition under
In response, plaintiffs maintained that the refusal to perform a cerclage was an affirmative act. Plaintiffs further argued that
Defendants then filed an additional motion for summary disposition. Defendants argued that the 2005 amendment of
Defendants applied for interlocutory leave to appeal.12 On leave granted, the Court of Appeals affirmed the circuit court‘s decision in a published opinion.13 Before addressing the substance of plaintiffs’ claims, the Court considered whether
Pursuant to
MCL 600.2922 , a party need not establish that the injury was caused by an act. Rather,MCL 600.2922 specifically provides that liability is possible when the injury is “caused by wrongful act, neglect, or fault of another....” WhileMCL 600.2922 refers to a “death as described in [MCL 600.2922a],” it does not indicate that the death in question must occur in the manner described inMCL 600.2922a . Plaintiffs are alleging that defendants caused their injuries when they neglected to perform the requested procedure in a timely manner. That allegation, when accepted as true, sufficiently established a cause of action pursuant toMCL 600.2922 .15
The Court reasoned in the alternative that Pastoriza‘s refusal to perform the cerclage constituted an affirmative act.16 The Court also concluded that the medical provider exception of
Defendants filed an application for leave to appeal in this Court. This Court granted leave to appeal in an order dated March 23, 2011, and directed the parties to brief “(1) whether the 2005 amendment of
IV. STANDARD OF REVIEW
We review de novo a trial court‘s ruling on a motion for summary disposition.19 Likewise, whether a statute
V. ANALYSIS
A. RETROACTIVITY OF MCL 600.2922(1) AS AMENDED BY 2005 PA 270
Public Act 270 of 2005 took effect on December 19, 2005, and plaintiffs’ cause of action arose on November 1, 2005. Plaintiffs argue that the Court of Appeals was correct in holding that 2005 PA 270 is retroactive and applicable to this case. Plaintiffs argue that the Court of Appeals correctly held that
In determining whether a statute applies retroactively or prospectively, the intent of the Legislature governs.22 Statutes are presumed to apply prospectively unless the Legislature clearly manifests the intent for retroactive application.23 This is “especially true when giving a statute retroactive operation will... create a new liability in connection with a past transaction, or invalidate a defense which was good when the statute
While 2005 PA 270 was given immediate effect, nothing in the statutory amendment suggests that the Legislature intended retroactive effect. The phrase “immediate effect” simply refers to
As we have noted in other cases, “the Legislature has shown...that it knows how to make clear its intention that a statute apply retroactively.”28 In this case, that the Legislature knows how to do so is palpably demonstrated by considering a previous amendment of the
This Court has recognized that “providing a specific, future effective date and omitting any reference to retroactivity supports a conclusion that a statute should be applied prospectively only.”33 This is akin to what the 2005 amendment of the wrongful-death statute does: it provides a specific effective date, that being the date of filing with the Secretary of State, without the slightest hint of retroactive application. The amendment contains no language suggesting that it applies to an antecedent “death as described in section 2922a.” Therefore, the amended language applies only to injuries occurring on or after the effective date of 2005 PA 270, December 19, 2005.
Acknowledging the absence of statutory language expressing legislative intent to apply the statute retroactively, both plaintiffs and the Court of Appeals’ opinion rely on an “exception” to the presumption that statutes apply prospectively: that “statutes which operate in furtherance of a remedy or mode of procedure
[W]e have rejected the notion that a statute significantly affecting a party‘s substantive rights should be applied retroactively merely because it can also be characterized in a sense as “remedial.” In that regard, we agree with Chief Justice RILEY‘s plurality opinion in White v General Motors Corp, that the term “remedial” in this context should only be employed to describe legislation that does not affect substantive rights. Otherwise, the mere fact that a statute is characterized as remedial is of little value in statutory construction. Again, the question is one of legislative intent.35
This exception to the presumption of prospective application for remedial statutes is inapplicable here because the statutory amendment affects substantive rights. Before the 2005 amendment of the wrongful-death statute, a plaintiff could not bring an action under
Given these considerations, we conclude that the 2005 amendment of
B. VALID CLAIM UNDER MCL 600.2922a
The Court of Appeals held that the circuit court properly denied defendants’ motion for summary disposition under
(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 оf the public health code, 1978 PA 368,
MCL 333.16101 to333.18838 .
In comparison, it is very clear that the Legislature did not intend to impose liability for omissions, something it can and has done in other statutes.51 The Legislature did not even include the more expansive terms “neglect” and “fault of another” that it included in
In addition,
In People v Thomas,52 this Court similarly distinguished between the omission of a duty and an affirmative act. In Thomas, a police officer was charged with crimes related to his falsification of a police report, including common-law obstruction of justice,
Any public official, appointed or elected, who is responsible for enforcing or upholding any law of this state and who wilfully and knowingly fails to uphold or enforce the law with the result that any pеrson‘s legal rights are denied is guilty of a misdemeanor.
Just as in this case, the Thomas Court found it necessary when reading the relevant statute to “distinguish between the omission of a duty and affirmative acts.”54 We concluded that
Moreover, we cannot accept the dissent‘s conclusion “that an active decision-making process clearly involves an affirmative act.”59 This conclusion morphs all willful omissions into commissions. And even assuming that Pastoriza did refuse to perform a cerclage, his words of refusal did not create any risk of harm. Rather, as plaintiffs claim, it was Pastoriza‘s failure to perform a medical procedure that caused the harm, and this alleged failure cannot be reasonably characterized as an affirmative act. The dissent‘s сonclusion that Pastoriza committed an “act” when he “refused to act” is untenable. A refusal to act is to abstain from action and, therefore, cannot reasonably be considered an act. In sum, the dissent distorts the express language of
Viewing the pleadings in a light most favorable to plaintiff and accepting each and every factual allegation as true, Pastoriza‘s act was, at most, an omission. Consequently, plaintiffs have failed to state a claim
VI. CONCLUSION
In sum, we hold that the 2005 amendment of
YOUNG, C.J., and MARKMAN and MARY BETH KELLY, JJ., concurred with ZAHRA, J.
CAVANAGH, J. (concurring). I concur with the majority‘s result only. I write separately to emphasize that, because the majority concludes that
MARILYN KELLY, J., concurred with CAVANAGH, J.
HATHAWAY, J. (dissenting). At issue is the extent of liability imposed under two statutes,
The underlying claims in this case involve allegations of negligence resulting in the death of plaintiff Baby Johnson,1 as well as injuries to his mother, plaintiff
Ms. Johnson became pregnant with Baby Johnson in June 2005 and chose defendant as her obstetrician. In September 2005, Ms. Johnson began bleeding vaginally and went to Foote Hospital, where she was advised to follow up with defendant. Defendant failed to place a cerclage during that follow-up visit. Ms. Johnson continued treatment with defendant as instructed, but he never placed a cerclage, despite ultrasound findings that Baby Johnson was the appropriate gestational age for placement of a cerclage. On October 19, 2005, Ms. Johnson complained to defendant that she felt preterm labor-like cramping. On this occasion, she specifically asked defendant to place a cerclage, but he refused to do so.
On November 1, 2005, Ms. Johnson went into premature labor. She was transferred to Sparrow Hospital where an emergency cerclage was placed. However, the
Only counts II and III of plaintiffs’ third amended complaint are at issue in this appeal.3 Count II, brought by Ms. Johnson, is based on
With regard to the claims brought under
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.
According to the plain language of this subsection, the relevant inquiry is whether a person has committed a wrongful or negligent act against a pregnant individual. This case involves conduct, consisting of medical treatment by a physician, which is alleged to be “wrongful” or “negligent.” The specific allegation is that Ms. Johnson needed a cerclage, defendant was aware of her need for the procedure, and he made a conscious decision not to perform that treatment. On one occasion, after having been asked to place the cerclage, defendant specifically refused to perform the procedure. Thus, the salient question is whether a defendant‘s active decision-making process in refusing to perform a necessary and specifically requested medical procedure is properly characterized as an omission or whether it is, in fact, an affirmative act. I believe that an active decision-making process clearly involves an affirmative act.
To hold otherwise ignores the language of the statute and the obvious intent of the Legislature.
The majority also addresses the claims brought under the wrongful-death statute on behalf of the estate of Baby Johnson. The relevant portion of the wrongful-death statute,
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.]
At the time of the alleged negligence,
To determine whether a statute should be applied prospectively or retroactively, the primary rule is that the intent of the Legislature controls, and аll other rules of construction are subservient to this rule. Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001). Generally, statutes are presumed to operate prospectively unless a contrary intent is expressed. Id. However, there is a long-recognized exception when a statute is deemed remedial or procedural in nature. Hansen-Snyder Co v Gen Motors Corp, 371 Mich 480, 484-485; 124 NW2d 286 (1963). “Statutes which operate in furtherance of a remedy already existing and which neither create new rights nor destroy existing rights are held to operate retrospectively, unless a contrary legislative intention is manifested.” Selk v Detroit Plastic Prod, 419 Mich 1, 10; 345 NW2d 184 (1984).
The 2005 amendment of
This conclusion is buttressed by the following legislative history5 from the House Fiscal Agency‘s analysis of the amendatory act:
Prior to 1998, the Michigan law did not specifically speak to the right of an individual to sue if the death in question was that of the unborn. Historically, lawsuits through the years went back and forth, sometimes applying regardless of gestational age, then more recently, being limited to instances in which the fetus was viable. Legislation in 1998 sought to settle the question by establishing both civil liability and criminal penalties for conduct against a pregnant woman that caused a miscarriage or stillbirth or that caused physical injury to the embryo or fetus (Public Act 211 — civil and Public Act 238 — сriminal).
The language establishing the civil penalty was placed in a separate section (
MCL 600.2922a ) from the existing wrongful death provision (MCL 600.2922 ) as a compromise between pro-life and pro-choice advocates. Since Section 2922 specifies a right to recover damages for the wrongful death of a “person,” pro-choice advocates voiced a concern that including conduct against a pregnant woman in that section would, by association, attach “personhood” to afetus or embryo and subsequently could be used to attack laws protecting reproductive rights. Many thought the 1998 legislation was clear, but a 2000 Oakland County case proved otherwise. The Oakland County Circuit Court ruled that a man who had killed his pregnant wife could not be charged with the death of his wife‘s embryo because his actions did not “technically” result in either a miscarriage or a stillbirth as the embryo was not expelled from the wife‘s body. As a result, Public Act 2 of 2001 and Public Act 164 of 2002 were enacted to amend the Michigan Penal Code and the wrongful death statute, respectively, to extend the criminal and civil penalties to conduct causing the death of an embryo or fetus. It was believed at the time that Public Act 164 closed the loophole in the wrongful death statute and so would apply to all situations in which conduct toward a pregnant woman resulted in the death of the embryo or fetus she carried.
However, in subsequent civil actions, courts around the state have apparently only looked at Section 2922 of the wrongful death statute and not Section 2922a. Most notably, in McClain v University of Michigan Board of Regents, 256 Mich App 492 (2003), the court held that “under Michigan law, an action for wrongful death,
MCL 600.2922 , cannot be brought on behalf of a nonviable fetus, because a nonviable fetus is not a ‘person’ within the meaning of the wrongful-death act.”Once again, it has become clear that legislation is needed to clarify the legislature‘s intent of providing a cause of action for the wrongful death of not only a person, but also an embryo or fetus.6
These comments make clear that this amendment was intended to clarify that claims for the wrongful death of a nonviable fetus may be рursued under the wrongful-death statute. The amendatory act did not establish any new rights because the right to pursue an
Thus, I agree with the Court of Appeals’ conclusion that “it is clear that
Therefore, I believe that the trial court‘s denial of defendant‘s motions for summary disposition was proper. I would affirm the Court of Appeals. Accordingly, I dissent.