Michigan Supreme Court's Republican majority denies mom's right to sue for wrongful death of 20 week fetus
This week, the Court divided on partisan lines, 4-3, once again, as the Republican majority overturned the lower courts and dismissed a wrongful death claim brought for a 20-week old fetus. Although the Michigan legislature has adopted specific statutes intended to incorporate the death of a fetus into the Wrongful Death Act and to allow a civil liability action for the "wrongful or negligent act" resulting in stillbirth or miscarriage of a non-viable fetus, the four insurance-oriented Republican Justices declined to apply those statutes in Baby Johnson v. Rajan Pastoriza, M.D., and Women's First Health Services.Candice Johson was 20 weeks pregnant when she miscarried. She had suffered a history of miscarriages which had been successfully addressed in her latest pregnancies by the insertion of an intrauterine cerclage. When she became pregnant for "Baby Johnson" she asked the Defendant to insert a cerclage, however, he refused. She went into premature labor and lost the baby, after an emergency cerclage proved ineffective.
The lower courts applied the Legislature's amendments to the Johnson case, recognizing an intent to allow a medical malpractice claim death claim, even of a fetus not yet viable, where there was a "negligent or wrongful" act. The Republican Supreme Court majority overturned this outcome and dismsssed the wrongful death claim. It held that the mere "omission" involved in refusing to insert a cerclage did not count as a "negligent or wrongful act" and that the amendment to the Death Act should not apply under the circumstances presented in Johnson.
Needless to say, the other three Justices adamantly disagreed with the majority's analysis, to the extent that the majority concluded that a negligent violation of the professional standard of care is not a "negligent or wrongful act" under current wrongful death law. Think a drunk driver who made a similar "omission" would get the benefit of this kind of analysis?