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Michigan Supreme Court Lansing, Michigan

Opinion
CANDICE JOHNSON and BABY JOHNSON, Plaintiffs-Appellees, v RAJAN PASTORIZA, M.D., and RAJAN PASTORIZA, M.D., P.L.C., d/b/a WOMEN'S FIRST HEALTH SERVICES, Defendants-Appellants. BEFORE THE ENTIRE BENCH ZAHRA, J.

Chief Justice:

Justices:

Robert P. Young, Jr. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra

FILED JUNE 5, 2012 STATE OF MICHIGAN SUPREME COURT

No. 142127

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 MCL 600.2922a, which provides that 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," and medical malpractice. Defendants

moved for summary disposition. The circuit court refused to grant summary disposition, but ordered plaintiffs to appoint a personal representative for the estate of Baby Johnson and to amend the complaint to bring the negligence claim that had been brought on behalf of Baby Johnson through the wrongful-death statute, MCL 600.2922. Defendants

appealed by leave granted. The Court of Appeals held that MCL 600.2922, as amended by 2005 PA 270, effective December 19, 2005, to incorporate the language "or death as described in section 2922a," applied retroactively to plaintiffs' claim for wrongful death, which arose no later than November 1, 2005. The Court of Appeals further held that Pastoriza's refusal to perform a cerclage was a "wrongful or negligent act" under MCL 600.2922a. We hold that the 2005 amendment of the wrongful-death statute, incorporating the language "or death as described in" MCL 600.2922a, does not apply to claims arising before the effective date of the amendment. The Legislature only intended the 2005 amendment to apply to claims arising on or after the effective date. Further, because defendants would be subjected to liability that did not exist at the time the cause of action arose, the amendment is not remedial and, therefore, cannot be deemed retroactive. Because the 2005 amendment of MCL 600.2922(1), incorporating "death as described in" MCL 600.2922a, is not retroactive, plaintiffs can only proceed under MCL 600.2922a.1 In regard to plaintiffs' claim under MCL 600.2922a, we hold that MCL
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Given this disposition, we do not address "whether the reference to `death as described in section 2922a' in the 2005 amendment of MCL 600.2922 incorporates the exceptions to recovery contained at MCL 600.2922a(2)." Johnson v Pastoriza, 489 Mich 856 (2011) (Johnson II).

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600.2922a plainly requires an affirmative act and that an omission or refusal to act 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 Lansing and

2

This opinion does not affect plaintiff's separate medical malpractice claim.

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received an emergency cerclage, but lost the 20-week-old fetus shortly after the transfer. The failed emergency cerclage also resulted in a significant and permanent cervical tear that might prevent Candice from having another child. II. LEGAL BACKGROUND Following amendment by 1985 PA 93, subsection (1) of Michigan's wrongfuldeath statute, MCL 600.2922(1), provided that [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 MCL 600.2922 did not permit a plaintiff to bring a claim for the death of a nonviable fetus because a nonviable fetus was not viewed as a "person."3 In 1998, the Legislature created a new statute, MCL 600.2922a. Section 2922a, which became effective on January 1, 1999, is separate from the wrongful-death statute, and imposes liability for wrongful or negligent acts against a pregnant woman that result

In Thomas v Stubbs, 455 Mich 853; 564 NW2d 463 (1997), this Court acknowledged that "[s]ince at least 1975 it has been held that a nonviable fetus is not a `person' within the meaning of the wrongful death act." Cf. Thomas v Stubbs, 218 Mich App 46; 553 NW2d 634 (1996) (holding that a fetus "born alive," although not viable, is a "person" within the meaning of the wrongful-death statute). The parties have not asked us to reconsider Thomas and such reconsideration is unnecessary given that the Legislature has since amended MCL 600.2922 and adopted MCL 600.2922a, which specifically imposes liability under certain circumstances for wrongful or negligent acts against a pregnant woman that result in physical injury to or the death of a fetus.

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in the pregnant woman's miscarriage or stillbirth or "physical injury" to the fetus. MCL 600.2922a, as added by 1998 PA 2011, provided: (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 to 333.18838. In 2002, the Legislature amended MCL 600.2922a. The amendment extended civil liability to wrongful or negligent acts that caused the "death" of an embryo or fetus and changed the term "medical professional" to "health professional."4 MCL 600.2922a, as amended by 2002 PA 164, currently 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

2001 PA 1 similarly amended the Michigan Penal Code to provide felony penalties for intentional conduct or gross negligence that causes the death of an embryo or fetus.

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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 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838. 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 nonviable fetus."8
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McClain v Univ of Mich Bd of Regents, 256 Mich App 492; 665 NW2d 484 (2003). Id. at 493-495. Id. at 494. Id. at 495.

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The Court of Appeals reversed.9 It first noted that a wrongful-death action under MCL 600.2922 could not be brought on behalf of the fetus because the wrongful-death statute applied only to a "person" and the plaintiff's nonviable fetus was not a person.10 The mother, therefore, could not recover for loss of society and companionship under MCL 600.2922.11 Significantly, the McClain panel did not recognize or address the import of MCL 600.2922a. The Legislature amended the wrongful-death statute in 2005 to specifically incorporate and cross-reference MCL 600.2922a. Because of the 2005 amendment, MCL 600.2922(1) currently reads as follows: 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.

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Id. at 499-500. Id. at 495 Id. at 495-496.

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III. PROCEDURAL HISTORY Plaintiffs filed a complaint against defendants alleging negligence under MCL 600.2922a and medical malpractice. The complaint did not mention wrongful death or MCL 600.2922. Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). Defendants first argued that plaintiffs could not sustain a wrongful-death claim for a nonviable fetus under MCL 600.2922 because a nonviable fetus is not a person. Defendants also argued that plaintiffs had failed to state a claim under MCL 600.2922a because there was no allegation that defendants had committed an affirmative act. In response, plaintiffs maintained that the refusal to perform a cerclage was an affirmative act. Plaintiffs further argued that MCL 600.2922, as amended by 2005 PA 270, was inapplicable because the amendment took effect after the instant case arose, stating, "It was not until December, 2005 that the legislature made clear that a cause of action for the death of a fetus under MCL 600.2922a now must be brought as a wrongful death action . . . ." Indeed, they indicated, "[f]or this reason, [p]laintiffs fashioned their complaint on behalf of the fetus under MCL 600.2922a, not under the wrongful death act." Plaintiffs did posit, however, that "if this Court disagrees, then plaintiff has only to either amend the complaint to add a Count III of wrongful death of the fetus, or bring a separate wrongful death action on behalf of the fetus under MCL 600.2922, and then consolidate." Defendants then filed an additional motion for summary disposition. Defendants argued that the 2005 amendment of MCL 600.2922 was retroactive, and by incorporating references to MCL 600.2922a, MCL 600.2922, as amended by 2005 PA 270, requires 8

that a plaintiff establish, in a case in which "death as described in section 2922a" occurs, negligence through an affirmative act. After a hearing, the circuit court denied defendants' motions, finding that plaintiffs could develop a cause of action under MCL 600.2922a through the wrongful-death statute or by pursuing a standard medical malpractice claim under McClain. The court reasoned that Pastoriza's refusal to perform the cerclage after Candice asked for it could be interpreted under MCL 600.2922a as an affirmative act and that the exception for medical providers did not apply. complaint. 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 MCL 600.2922, as amended by 2005 PA 270, applied retroactively. The Court concluded that the 2005 amendment was remedial and, thus, that the presumption that new statutes only have prospective application was inapplicable. The Court reasoned that the 2005 The court also permitted plaintiffs to amend the

amendment "was enacted in order to clarify MCL 600.2922 and MCL 600.2922a and to resolve a controversy regarding their meaning."14 Having concluded that the amended
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This interlocutory appeal does not involve Candice's standard malpractice action.

Plaintiffs submitted their third amended complaint after the Court of Appeals issued its opinion in this case. The third amended complaint, filed in October 2010, reasserted Candice's claims of medical malpractice under McClain, her individual negligence claim under MCL 600.2922a, and added a new claim for wrongful death on behalf of the estate of Baby Johnson. Johnson v Pastoriza, 290 Mich App 260, 272; 810 NW2d 42 (2010) (Johnson I).

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version of MCL 600.2922 applies retroactively, the Court then rejected defendants' position that MCL 600.2922a requires an affirmative act in order to establish a claim under the wrongful-death statute for death of a fetus. The Court stated: 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 . . . ." While MCL 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 in MCL 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 to MCL 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 MCL 600.2922a was inapplicable because no medical procedure had been performed.17 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 MCL 600.2922, 2005 PA 270, applies retroactively and (2) if so, whether the reference to `death as described in section 2922a' in the 2005

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Id. at 272-273 (alteration in original). Id. at 273. Id. at 274.

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amendment of MCL 600.2922 incorporates the exceptions to recovery contained at MCL 600.2922a(2)."18 IV. STANDARD OF REVIEW We review de novo a trial court's ruling on a motion for summary disposition.19 Likewise, whether a statute applies retroactively is a question of statutory construction that this Court reviews de novo.20 Questions of statutory interpretation are questions of law that are reviewed de novo.21 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 MCL 600.2922 specifically provides that liability is possible when the "death as described in [MCL 600.2922a]" is "caused by wrongful act, neglect, or fault of another." Thus, plaintiffs need not establish under MCL 600.2922, as amended by 2005 PA 270, that the injury was caused by Pastoriza's affirmative act.
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Johnson II, 489 Mich at 856. Haynes v Neshewat, 477 Mich 29, 34; 729 NW2d 488 (2007).

Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001).
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Haynes, 477 Mich at 34.

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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 was passed."24 Further, "[e]ven if the Legislature acts to invalidate a prior

decision of this Court, the amendment is limited to prospective application if it enacts a substantive change in the law."25 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 Const 1963, art 4,

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