SHAKEETA SIMPSON, as Personal Representative of the ESTATE OF ANTAUN SIMPSON, Plaintiff-Appellant,
ALEX PICKENS, JR., & ASSOCIATES, M.D., PC, doing business as PICKENS MEDICAL CENTER, BRIGHTMOOR GENERAL MEDICAL CENTER INC., doing business as BRIGHTMOOR-PICKENS MEDICAL CENTER, ALEX PICKENS JR., M.D., and LINDA S. HARTMAN, P.A., Defendants-Appellees and SHAKEETA SIMPSON, Plaintiff,
Wayne Circuit Court. LC No. 13-000307-NH.
Before: METER, P.J., and CAVANAGH and WILDER, JJ.
[311 Mich.App. 128] Mark J. Cavanagh,
Shakeeta Simpson, as the personal representative of the estate of Antaun
Simpson, appeals as of right an order granting partial summary disposition [311 Mich.App. 129] in favor of defendants and dismissing the wrongful-death claim brought on behalf of her decedent. We reverse.
In this wrongful-death action, it was alleged that defendants were negligent in the prenatal care and treatment of Simpson, which caused the premature birth and death of the decedent, Simpson's nonviable fetus, Antaun, at 18.2 weeks' gestation. In particular, Simpson suffered a miscarriage allegedly because her physician, defendant Alex Pickens, Jr., failed to perform a cerclage despite knowing that Simpson had two previous pregnancy losses as a consequence of cervical insufficiency.
Defendants filed a motion for partial summary disposition of the wrongful-death claim under MCR 2.116(C)(8) and (10), arguing that dismissal was required under MCL 600.2922a because plaintiff alleged that an omission--the failure to perform a cerclage--led to the death of the fetus. Defendants argued that, in Johnson v Pastoriza, 491 Mich. 417, 436-440; 818 N.W.2d 279 (2012), our Supreme Court held that to state a cause of action under MCL 600.2922a, an " affirmative or positive act" must be alleged, not merely an omission or failure to act. Further, defendants argued, " the amendment of MCL 600.2922 to reference MCL 600.2922a does not change the essential nature of the underlying claim brought under MCL 600.2922a. That is, the essential elements of a claim brought under MCL 600.2922a remain the same, including the need to establish 'an affirmative or positive act' to state a valid cause of action." Accordingly, defendants argued that the wrongful-death claim should be dismissed.
[311 Mich.App. 130] Plaintiff responded, arguing that MCL 600.2922a was not applicable here because this is a wrongful-death action brought on behalf of the decedent, a nonviable fetus. The underlying theory of liability is medical malpractice, not MCL 600.2922a. A wrongful-death claim brought under MCL 600.2922 imposes liability for death caused by " wrongful act, neglect, or fault of another" ; therefore, acts of omission are sufficient to state a claim and to establish liability.
The trial court agreed with defendants, holding that MCL 600.2922a must be incorporated into MCL 600.2922 because that statute refers to " death as described in 2922a . . . ." Further, the court held, an affirmative act must be alleged to state a claim under MCL 600.2922a and plaintiff only alleged that an omission occurred. Therefore, defendants were entitled to summary disposition of the wrongful-death claim.
The sole issue on appeal is whether this wrongful-death action was properly dismissed on the ground that plaintiff failed to allege that defendants committed an affirmative act as required for actions brought under MCL 600.2922a. We conclude that dismissal was improper, and reverse.
A trial court's decision on a motion for summary disposition is reviewed de novo. Spiek v DOT, 456 Mich. 331, 337; 572 N.W.2d 201 (1998). It appears the trial court granted defendants' motion under MCR 2.116(C)(8), after concluding that plaintiff's complaint failed to state a claim upon which relief could be granted. A motion under MCR 2.116(C)(8) tests the legal sufficiency of ...