PER CURIAM.
In this cause of action involving the wrongful-death act, MCL 600.2922 and MCL 600.2922a, defendants appeal by leave granted the trial court's denial of their motion for summary disposition. On appeal, defendants argue that none of plaintiffs' claims are compensable under the wrongful-death act. We affirm.
As alleged by plaintiffs in their first amended complaint, the medical history of plaintiff Candice Johnson (hereafter Johnson) reflects that her cervix is incompetent. Johnson's incompetent cervix resulted in her having a number of miscarriages. However, in 1999, defendant Dr. Rajan Pastoriza's predecessor, Dr. Dennis Means, performed a cerclage on Johnson when she was 16 weeks pregnant. As a result of the procedure, Johnson's pregnancy proceeded to a full-term vaginal birth in 2000. In 2001, when Johnson was once again 16 weeks pregnant, Dr. Means performed another cerclage, which resulted in that pregnancy reaching 36 weeks. A cesarean section was performed to prevent a breech delivery. In 2002, Dr. Means once again performed a cerclage on Johnson early in the second trimester of a pregnancy. Dr. Means removed the cerclage suture shortly before Johnson vaginally delivered a full-term baby.
Johnson became pregnant again in June 2005. On August 25, 2005, Johnson began receiving treatment from defendant Dr. Rajan Pastoriza and defendant Rajan Pastoriza, M.D., P.L.C. Dr. Pastoriza possessed all of Johnson's previous medical records. An August 25, 2005, note reveals that an ultrasound was scheduled to be conducted at 12 weeks' gestation with a possible cerclage to follow. On September 9, 2005, Johnson appeared at Foote Hospital in Jackson because of vaginal bleeding. An ultrasound was performed, which showed a live fetus at 12 weeks' gestation. Personnel at the hospital recommended bed rest and indicated that Johnson should follow up with her obstetrician. Johnson followed up with Dr. Pastoriza on September 13, 19, and 23, as well as on October 6. Dr. Pastoriza's records from September and October 2005 continued to note Johnson's history of an incompetent cervix and cerclages.
On October 12, 2005, another ultrasound was ordered because of Johnson's short cervix. The ultrasound revealed a viable fetus at almost 17 weeks' gestation. The findings of the ultrasound also revealed that the length of Johnson's cervix was consistent with the length of Johnson's cervix when the cerclages were performed during her previous successful pregnancies. On October 19, 2005, during an examination by Dr. Pastoriza, Johnson complained of cramping and described a "feeling like pre-term labor." Thereafter, Johnson asked Dr. Pastoriza to perform a cerclage, but he refused to do so.
On November 1, 2005, Johnson went into premature labor, which resulted in advanced cervical dilation. She went to Foote Hospital and was subsequently transferred to Sparrow Hospital in Lansing to receive an emergency cerclage. The emergency cerclage did not prevent the baby's premature birth at 20 weeks' gestation, and, as alleged in the first amended complaint, "Johnson lost the 20 week old fetus shortly after the transfer."
Subsequently, Johnson attempted to have another child and received a cerclage.
Plaintiffs, Candice Johnson and Baby Johnson, the child who died following its premature birth on November 1, 2005, subsequently brought suit. Plaintiffs alleged two counts, one of medical malpractice and one of negligence under MCL 600.2922a, which is a portion of the wrongful-death act. MCL 600.2922a(1) provides as follows: "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." Thereafter, defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) on the ground that the wrongful-death act allows recovery for the death of a fetus only when "death as described in section 2922a [MCL 600.2922a]" occurs. Defendants asserted that no "death as described in section 2922a" occurred "because § 2922a clearly requires an affirmative act, as opposed to a nonobservable negligent omission that causes a death." In contrast, plaintiffs argued that defendant doctor's refusal to perform the cerclage was an act of commission and, in addition, that MCL 600.2922a ties into the wrongful-death act, which allows actions for the death of a fetus when it is caused by a wrongful act or neglect.
At the September 11, 2008, hearing on the summary disposition motion, defendants also asserted that under MCL 600.2922a(2)(b), acts by medical professionals are specifically excluded. MCL 600.2922a(2)(b) provides that the section allowing for liability does not apply to "[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. The court said that it interpreted the statute as saying that the provision only applies when the act in question is necessitated by a medical emergency." Defendants argued that the medical-emergency provision relates to the notion of consent and does not apply when a patient is incapable of giving consent. Plaintiffs argued that MCL 600.2922a(2)(b) by its own terms applies to the performance of a medical procedure, but noted that their cause of action was based on the failure to perform a medical procedure.
Defendants also argued that
The court noted that that argument would cause Johnson to request to amend her complaint, and defense counsel replied that
Lastly, defendants argued that summary disposition of Johnson's claim for emotional damages for grief and sorrow for her baby's death was proper under the ruling in McClain v. Univ. of Mich. Bd. of Regents, 256 Mich.App. 492, 665 N.W.2d 484 (2003). Johnson argued that she had also suffered and alleged physical injuries as well as emotional distress. Johnson had alleged that she had an unsuccessful emergency cerclage just before the premature birth. Her attorney told the court that the emergency cerclage ripped, causing physical injury. She also argued that McClain did not do away with actions on behalf of a mother because MCL 600.2922a(3) states, "This section does not prohibit a civil action under any other applicable law."
The trial court denied defendants' motion for summary disposition, ruling that Johnson had alleged that she had asked defendant doctor to perform a cerclage, but he did not, and that could be interpreted as an affirmative act. The court also said:
Defendants subsequently sought leave to appeal, which this Court granted in an unpublished order, entered February 26, 2009 (Docket No. 288338).
This Court reviews de novo a motion for summary disposition. Teel v. Meredith, 284 Mich.App. 660, 662, 774 N.W.2d 527 (2009). This Court must review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v. Auto-Owners Ins. Co., 458 Mich. 288, 294, 582 N.W.2d 776 (1998). Although defendants initially brought their motion pursuant to multiple court rules, it was subsequently conceded that the motion was pursuant solely to MCR 2.116(C)(8). A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint. Dolan v. Continental Airlines, 454 Mich. 373, 380, 563 N.W.2d 23 (1997). The motion may not be supported with documentary evidence, affidavits, admissions, or depositions because pursuant to MCR 2.116(G)(5), the trial court must only rely on the pleadings. Patterson v. Kleiman, 447 Mich. 429, 432, 526 N.W.2d 879 (1994). All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. Wade v. Dep't of Corrections, 439 Mich. 158, 162-163, 483 N.W.2d 26 (1992). However, "the mere statement of a pleader's conclusions, unsupported by allegations of fact, will not suffice to state a cause of action." ETT Ambulance Serv. Corp. v. Rockford Ambulance, Inc., 204 Mich.App. 392, 395, 516 N.W.2d 498 (1994). A motion under MCR 2.116(C)(8) may be granted only when the claims alleged "are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Wade, 439 Mich. at 163, 483 N.W.2d 26.
Additionally, this appeal requires this Court to consider the meaning of MCL 600.2922 and MCL 600.2922a. The
If judicial construction is warranted, this Court should construe the statute according to its common meaning, and common sense should not be abandoned. Jordan v. Jarvis, 200 Mich.App. 445, 451, 505 N.W.2d 279 (1993); Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994). "Terms that are not defined in a statute must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary definition for those meanings." Hamed v. Wayne Co., 284 Mich.App. 681, 694, 775 N.W.2d 1 (2009).
Defendants first assert that the trial court erred by denying their motion for summary disposition regarding plaintiffs' claim arising out of the death of plaintiff Baby Johnson. We disagree.
Defendants argue that summary disposition should have been granted because plaintiffs cannot state a claim for a "death as described in" MCL 600.2922a. MCL 600.2922(1), as amended by 2005 PA 270, currently provides:
At the time of the alleged negligence in this matter, MCL 600.2922, as amended by 2000 PA 56, was slightly different and did not include the language regarding "death as described in section 2922a." Therefore, before determining whether MCL 600.2922 allows for a recovery in this instance, this Court must first determine which version of that statute applies.
It has been held that in determining whether a statute should be applied prospectively or retroactively, the intent of the Legislature controls. Frank W. Lynch & Co. v. Flex Technologies, Inc., 463 Mich. 578, 583, 624 N.W.2d 180 (2001). Specifically, "a statute is presumed to operate prospectively unless the Legislature either expressly or impliedly indicates an intention to give the statute retroactive effect." Allstate Ins. Co. v. Faulhaber, 157 Mich.App. 164, 166, 403 N.W.2d 527 (1987). However, as this Court has previously explained, the rule that a statute is presumed to operate prospectively
In addition, "[a]n amendment may apply retroactively where the Legislature enacts an amendment to clarify an existing statute and to resolve a controversy regarding its meaning." Mtg. Electronic Registration Sys., Inc. v. Pickrell, 271 Mich.App. 119, 126, 721 N.W.2d 276 (2006) (emphasis added).
In this case, it is clear that MCL 600.2922 was amended to add the language "or death as described in section 2922a" in order to clarify both MCL 600.2922 and MCL 600.2922a and to resolve a controversy regarding their meaning. During the discussion of the proposed 2005 amendment of MCL 600.2922 to add the language "or death as described in section 2922a," it was indicated during deliberations in the House of Representatives that MCL 600.2922a had been enacted to "amend the... wrongful death statute ... to extend... civil penalties to conduct causing the death of an embryo or fetus." House Legislative Analysis, HB 4777, October 24, 2005, at 1.
On the basis of the foregoing, we conclude that the 2005 amendment of MCL 600.2922, which added the language "or death as described in section 2922a," was enacted in order to clarify MCL 600.2922 and MCL 600.2922a and to resolve a controversy regarding their meaning. Therefore, MCL 600.2922, as amended by 2005 PA 270, which was immediately effective on December 19, 2005, may be applied retroactively from April 1, 2000, the effective date of the last prior amendment of MCL 600.2922 before its amendment in 2005. Mtg. Electronic Registration Sys., 271 Mich.App. at 126, 721 N.W.2d 276.
We note that even if we were to agree with defendants' interpretation and conclude that plaintiffs were required to establish that an affirmative act caused the injuries, defendants would still not be entitled to relief. It is improper in this instance to classify defendants' alleged conduct as an omission. The pleadings on which this motion must be considered note that Johnson specifically requested the performance of a cerclage and defendants consciously chose to deny the request. Their conduct in denying the requested care is tantamount to an affirmative act.
In addition to arguing that a cause of action was not permitted because there was no act that led to plaintiffs injuries, defendants also assert that plaintiffs cause of action is barred by MCL 600.2922a(2)(b) and that the trial court misinterpreted that statutory provision. While we agree that the trial court's interpretation of MCL 600.2922a(2)(b) was inaccurate, we further conclude that a correct interpretation of that provision does not lead to the conclusion that plaintiffs' action was barred. This Court can affirm a trial court's decision when the trial court reached the correct decision albeit for the wrong reason. Lane v. KinderCare Learning Ctrs., Inc., 231 Mich.App. 689, 697, 588 N.W.2d 715 (1998).
MCL 600.2922a(2)(b) provides that a person is not liable for damages for the death of an embryo or fetus if the death is the result of "[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." The trial court indicated that it interpreted the medical-procedure exception as applying only when the medical procedure was necessitated by a medical emergency. We disagree. MCL 600.2922a(2)(b) provides three exceptions enumerating when a person is not liable for damages for the death of an embryo or fetus: (1) if the death is the result of "[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," (2) if the death is the result of "[a] medical procedure performed by a physician or
MCL 600.2922a(2)(b) clearly provides that there is an exception to MCL 600.2922a if the death of the fetus is the result of the performance of a medical procedure. However, in this case, there was no medical procedure performed. Rather, the claim was based on defendants' failure or refusal to perform an explicitly requested medical procedure. Consequently, we find that MCL 600.2922a(2)(b) is inapplicable to the factual allegations in this case.
Defendants next argue that Johnson cannot recover for emotional distress damages because the wrongful-death act only allows for claims brought by a personal representative of the estate of the deceased and does not allow recovery for individual claims. We disagree.
MCL 600.2922 provides, in part:
Thus, pursuant to MCL 600.2922(2), an action under the wrongful-death act must be brought in the name of the personal representative of the estate of the deceased. In addition, although the claim is brought in the name of the personal representative, the persons who may be entitled to damages must submit a claim for those damages to the personal representative. MCL 600.2922(7). The trial court or the jury then awards the amount of damages that it believes is fair and equitable considering the amount of damages sustained by each person and the estate of the deceased. MCL 600.2922(6)(d). Consequently, pursuant to the plain language of the statute, an individual cannot maintain an action in his or her name under the wrongful-death act. MCL 600.2922(2); USAA Ins. Co., 220 Mich.App. at 389-390, 559 N.W.2d 98. However, although plaintiffs did not properly bring their claim in the name of the personal representative, but only in the names of Johnson and her baby who died following its premature birth on November 1, 2005, the trial court clearly stated in its order denying defendants' motion for summary disposition that "plaintiffs must appoint a personal representative for the estate of baby Johnson and amend the complaint to bring such a claim through the wrongful death act." Plaintiffs were properly granted leave to amend their complaint. MCR 2.116(I)(5) provides that when summary disposition is sought "based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified." The deficiency in plaintiffs' complaint can be corrected through amendment. Therefore, summary disposition would have been improper.
Finally, defendants also argue that the wrongful-death act is the exclusive remedy in this case because McClain was superseded by the 2005 amendment of MCL 600.2922 when that amendment eliminated any individual claim of a mother outside the wrongful-death act. In the alternative, defendants argue that if McClain remains valid, this Court should overrule that decision because it was wrongly decided. We conclude that the holding in McClain is
In McClain, 256 Mich.App. at 496, 665 N.W.2d 484, the plaintiff filed a medical-malpractice action relating to the death of her fetus. The Court indicated that the wrongful-death act, specifically MCL 600.2922, did not apply to the case because MCL 600.2922 dealt with a person and not a nonviable fetus. Id. at 495-496, 665 N.W.2d 484. Thus, the Court specifically indicated that the parent in that case could not recover damages for the loss of society and companionship. Id. The Court, however, indicated that a "plaintiff's cause of action for damages in her own right as a result of her miscarriage is well grounded in Michigan law" and, thus, that the plaintiff could recover damages that are recoverable in a tort action. Id. at 496, 665 N.W.2d 484. The Court went on to conclude that the plaintiff could recover damages for emotional distress, mental anguish, and grief and sorrow. Id. at 500-503, 665 N.W.2d 484. Further, other damages would be available to a plaintiff who could prove them, such as damages for physical pain and suffering, fright, shock, denial of social pleasure and enjoyment, embarrassment, humiliation, or other appropriate damages. Id. at 498-499, 665 N.W.2d 484.
Defendants' contention that McClain was superseded by the 2005 amendment of MCL 600.2922 is without merit. The only language that was added to MCL 600.2922 as a result of the 2005 amendment was the language "or death as described in section 2922a." That language appears to have only been added to clarify that a wrongful-death action can be brought not only for the death of a person, pursuant to MCL 600.2922, but also for the death of an embryo or fetus, pursuant to MCL 600.2922a. There is no indication in the statute or in the legislative history of the enactment of the 2005 amendment of MCL 600.2922 that the Legislature intended to supersede the general proposition that a plaintiff can bring a cause of action for damages in the plaintiff's own right as a result of a miscarriage in order to recover tort damages. Absent any evidence of the Legislature's intent to eliminate a plaintiff's ability to bring such a cause of action, it would be improper for this Court to conclude that McClain is no longer good law regarding that point. Furthermore, we are not persuaded by defendants' assertions that McClain was incorrectly decided. As a result, defendants are not entitled to relief.
When viewing the evidence in the light most favorable to plaintiffs, we conclude that the trial court properly denied defendants' motion for summary disposition regarding each count of plaintiffs' complaint and properly granted plaintiffs an opportunity to amend that complaint to comply with the statutory requirements.
Affirmed.
DAVIS, P.J., did not participate.
