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Court again denies summary disposition to medical defendants; upholds woman's right to pursue wrongful conception claim

Lori Cichewicz sued Michael S. Salesin and his PLC and Walnut Lake OB/Gyn Clinic, maintaining that he was professionally negligent in failing to fully interrupt her fallopian tubes.  Cichewicz gave birth to a child with Down's syndrome after Salesin advised her that she could stop using contraceptives because her fallopian tubes were "blocked" when he attempted an Essure procedure to implant a device that causes permanent scarring and blockage.

Salesin argued that he had never seen a similar patient become pregnant and that in his opinion it was a reasonable judgment to tell the patient that she did not need a tubal ligation or to practice contraception. He also argued that a recently enacted statute granted him immunity from any malpractice claim alleging "wrongful conception."

The trial court denied summary disposition and ruled that it was a question of fact whether Salesin was guilty of "gross negligence" in advising the patient that she "could not become pregnant, did not need a tubal ligation, and did not need to practice birth control."  On appeal, the Court of Appeals upheld the lower court, however, the Michigan Supreme Court sent the case back to the appellate panel to consider additional issues regarding "wrongful birth" claims that the Republicans have abolished in Michigan.

After examining the existing common law and the wording of the statute governing "wrongful birth" or "wrongful conception" claims, the appellate judges ruled that the patient had set forth a claim that should be evaluated on its facts and merits by the jury.  The panel noted that "wrongful conception" claims had always been recognized under the common law and that the statute cited by the Defendants continued to allow a "wrongful conception" claim, provided that damages collectible were properly limited.  

The Court held that no reasonable juror could find that the doctor was guilty of "gross negligence," and therefore the woman could not pursue that claim.  To the extent her lawsuit raised a viable ordinary negligence claim, her damages will be limited by the "wrongful conception" doctrine and will not include damages for a "wrongful life."

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