Candice Johnson has a medical condition that causes her cervix to open prematurely during pregnancy, causing her to have a number of miscarriages. Despite this condition, she was able to carry three pregnancies to term when her doctor performed a cerclage, a procedure in which the cervix was stitched closed to prevent it from opening prematurely. Doctor Rajan Pastoriza treated Johnson during her pregnancy in 2005; he was aware of Johnson’s medical history. During an appointment on October 19, 2005, Johnson complained of cramping and a feeling she described as “like pre-term labor,” she asked Pastoriza to perform a cerclage, but he declined. On November 1, Johnson’s cervix opened; despite an emergency cerclage, she prematurely delivered a non-viable fetus at 20 weeks gestation.
Johnson, on behalf of herself and Baby Johnson, sued Pastoriza and his professional corporation, seeking damages for medical malpractice, including a claim for her own emotional distress, and for wrongful death of a fetus under MCL 600.2922a. MCL 600.2922a(1) allows for recovery against “[a] person who commits a wrongful or negligent act against a pregnant individual . . . if the act results in a miscarriage or stillbirth by that individual, or physical injury to or the death of the embryo or fetus.” MCL 600.2922a(2) provides several exceptions to that general liability; subsection (b) excludes liability for 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. . . .”
Pastoriza moved to dismiss the case, arguing that his alleged negligence did not make him liable under MCL 600.2922a; he contended that he did not commit a “wrongful or negligent act,” as required by the statute. Pastoriza also argued that the exception for medical procedures, at MCL 600.2922a(2)(b), exempted him from liability. Johnson responded that Pastoriza’s refusal to perform the cerclage was an affirmative act. Moreover, she contended, MCL 600.2922a ties into the wrongful-death act, MCL 600.2922, which allows actions for a fetus’ death when it is caused by a wrongful act or negligence. MCL 600.2922(1), as amended in 2005, states that whenever “. . . death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another . . . the person who . . . would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the . . . death as described in section 2922a . . . .”
The trial court was persuaded by Johnson’s arguments and denied Pastoriza’s motion for summary disposition. In a published opinion, the Court of Appeals affirmed the trial court’s ruling. The panel reasoned that MCL 600.2922(1), the general wrongful death statute, allows a wrongful death claim to be made “[w]henever . . . death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another. . . .” The Court of Appeals concluded that this provision did not allow a defendant to rely on the exception found in MCL 2922a(2)(b) because, “[w]hile MCL 600.6922 references ‘a death described in MCL 600.6922a,’ it does not indicate that the death in question must occur in the manner described in MCL 600.2922a.” Accordingly, Johnson’s claim of negligence “sufficiently establishes a cause of action pursuant to MCL 600.6922.” In the alternative, the court held, Pastoriza’s refusal to perform a cerclage was an affirmative act giving rise to liability under MCL 600.2922a; the exception for physicians performing medical procedures did not apply because no medical procedure was performed, the court reasoned. The court also determined that Johnson could bring her emotional distress claim both under the wrongful death act, MCL 600.2922(6)(d), and under a medical malpractice theory. The defendants appeal.