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Doctor who refuses to perform procedure can be responsible for death of fetus that is not yet viable

Candice Johnson and "Baby Johnson" filed a wrongful death claim against Rajan Pastoriza, Candice's obstetrician, after Pastoriza refused to perform a cerclage on Johnson's incompetent cervix.  Johnson had previously delivered healthy babies after her previous obstetrician performed cerclage procedures at about 16 weeks gestation.  When Dr. Pastoriza took over her care, she displayed the same symptoms, which the doctor charted, but he refused to perform a cerclage in response to "cramping and pre-term labor."  The baby miscarried at 20 weeks. 

Pastoriza's attorneys argued that Johnson's family should not be able to sue because the baby was not yet viable.  The lower court noted, however, that in 2005 the Michigan Legislature passed an amendment to the Wrongful Death Act making negligent actors responsible for actions that cause the stillbirth of a fetus.  Pastoriza's attorneys then argued that since he had not "acted," but was rather accused of an "omission," the amendment did not apply.  The Court of Appeals made quick work of this semantic dodge, pointing out that Pastoriza's refusal to perfom the cerclage procedure was an "act."  The malpractice insurer's final defense was based on the argument that the stillbirth amendment--which contains an exclusion for medical procedures to which the patient has consented--should actually immunize the doctor from a malpractice claim.  The Court pointed out that by its language the stillbirth amendment exclusion for medical procedures does not apply where the physician has refused to perform an explicitly requested medical procedure.
Thompson O’Neil, P.C.
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