June 16, 2015
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 the complaint and may be granted only when the claim alleged is " so clearly unenforceable as a
matter of law that no factual development could possibly justify recovery." Wade v Dep't of Corrections, 439 Mich. 158, 163; 483 N.W.2d 26 (1992).
[311 Mich.App. 131] The resolution of this matter requires the interpretation of statutory provisions. We review issues of statutory construction de novo. Herald Co v Bay City, 463 Mich. 111, 117; 614 N.W.2d 873 (2000). The rules of statutory interpretation are well-established. The primary goal is to discern the intent of the Legislature. Joseph v Auto Club Ins Ass'n, 491 Mich. 200, 205; 815 N.W.2d 412 (2012). The best indicator of that intent is the language of the statute, and, in determining intent, the words of the statute are given their common and ordinary meaning. Id. at 205-206. Statutory language must be read and understood in its grammatical context, and effect should be given to every phrase, clause, and word in the statute. Sun Valley Foods Co v Ward, 460 Mich. 230, 237; 596 N.W.2d 119 (1999). No word should be treated as surplusage or rendered nugatory. Baker v General Motors Corp, 409 Mich. 639, 665; 297 N.W.2d 387 (1980). When statutory language is unambiguous, " further construction is neither required nor permitted." Joseph, 491 Mich. at 206. Only when the statutory language is ambiguous " is it proper for a court to go beyond the statutory text to ascertain legislative intent." Whitman v City of Burton, 493 Mich. 303, 312; 831 N.W.2d 223 (2013). A statute is not rendered ambiguous merely because reasonable minds may differ regarding its meaning. Mayor of Lansing v Mich. PSC, 470 Mich. 154, 166; 680 N.W.2d 840 (2004). " Rather, a provision of the law is ambiguous only if it 'irreconcilably conflict[s]' with another provision . . . or when it is equally susceptible to more than a single meaning." Id., quoting Klapp v United Ins Group Agency, Inc, 468 Mich. 459, 467; 663 N.W.2d 447 (2003) (alteration in original). Such a conclusion [311 Mich.App. 132] should be arrived at " only after 'all other conventional means of  interpretation' have been applied and found wanting." Mayor of Lansing, 470 Mich. at 165, quoting Klapp, 468 Mich. at 474 (alteration in original).
This is a wrongful-death action brought on behalf of the deceased nonviable fetus. The death alleged is that of the nonviable fetus, and the underlying theory of liability is medical malpractice. Because it was alleged that the wrongful act, neglect, or fault of another resulted in the death of the nonviable fetus, this action had to be brought under the wrongful-death act, MCL 600.2922, which " provides the exclusive remedy under which a plaintiff may seek damages for a wrongfully caused death." Jenkins v Patel, 471 Mich. 158, 164; 684 N.W.2d 346 (2004); see also MCL 600.2921. " [T]he wrongful-death act is essentially a 'filter' through which the underlying claim may proceed." Wesche v Mecosta Co Rd Comm, 480 Mich. 75, 88; 746 N.W.2d 847 (2008). In other words, for example, " a wrongful death action grounded in medical malpractice is a medical malpractice action in which the plaintiff is allowed to collect damages related to the death of the decedent." Jenkins, 471 Mich. at 165-166. Therefore, statutory and common-law limitations, like the noneconomic-damages cap applicable in medical malpractice actions, apply to wrongful-death actions. Wesche, 480 Mich. at 90.
The wrongful-death act, MCL 600.2922, provides:
Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding [311 Mich.App. 133] the death of the person injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony.
There is no dispute in this case that a wrongful-death action may be brought on behalf of a nonviable fetus. Before the language of the statute was amended in 2005, however, a wrongful-death action brought on behalf of a nonviable fetus was not cognizable. That was so because, before the 2005 amendment, MCL 600.2922(1) provided: " Whenever the death of a person or injuries resulting in death shall be caused . . . ."  Accordingly, a wrongful-death action could not be based on the death of an embryo or nonviable fetus. See Thomas v Stubbs, 455 Mich. 853; 564 N.W.2d 463 (1997); Toth v Goree, 65 Mich.App. 296, 304; 237 N.W.2d 297 (1975). In Johnson, our Supreme Court recognized that " [b]efore the 2005 amendment of the wrongful-death statute, a plaintiff could not bring an action under MCL 600.2922 for the death of a nonviable fetus." Johnson, 491 Mich. at 433.
While there is no dispute that a wrongful-death action may now be brought on behalf of a nonviable fetus, there is a dispute regarding the meaning, and operation, of the 2005 amendatory language. As amended, MCL 600.2922(1) provides, " Whenever the death of a person, injuries resulting in death, or death as described in section 2922a shall be caused . . . ." (Emphasis added to highlight the amendatory language). Defendants argued in the trial court that, in light of the amendatory language, plaintiff brought this action under § 2922a, which must be incorporated in its entirety into § 2922. The trial court agreed with [311 Mich.App. 134] defendants, holding that MCL 600.2922a must be incorporated into MCL 600.2922. Essentially, then, the trial court concluded that MCL 600.2922(1) should be read as follows:
Whenever the death of a person, injuries resulting in death, or death as described in section 2922a [" [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" ] shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or death as described in section 2922a, and although the death was caused under circumstances that constitute a felony.
We do not agree with the trial court's interpretation.
It is clear by a plain reading of MCL 600.2922 that the amendatory language refers to another death that is actionable under the wrongful-death statute--a " death as described in section 2922a . . . ." Thus, we turn to MCL 600.2922a(1), which provides:
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.
There is no ambiguity; the " death as described in section 2922a" is the death of an embryo or fetus. No other " death" is described in § 2922a. The statutory [311 Mich.App. 135] language is not equally susceptible to more than this single meaning. See Mayor of Lansing, 470 Mich. at 166. The amendatory language merely differentiates between the death of " a person," as that term had been construed under MCL 600.2922 and the death of an embryo or fetus. Under the language of the 2005 amendment, the first requirement for a wrongful-death action--that there be a death--is satisfied when the death is of an embryo or fetus. And that is the extent of the effect this amendment had on the wrongful-death statute; it merely expanded the scope of actionable deaths to include the death of an embryo or fetus. The trial court's interpretation of the amendatory language as incorporating the entirety of one statute into the other statute contravenes our longstanding rules of statutory interpretation that statutory language is to be read and understood in its grammatical context, words are to be accorded their plain and ordinary meaning, and no word should be treated as surplusage or rendered nugatory. See Joseph, 491 Mich. at 206; Sun Valley Foods Co, 460 Mich. at 237; Baker, 409 Mich. at 665.
Neither defendants nor the trial court provided any sound legal basis for treating a wrongful-death action [311 Mich.App. 136] brought on behalf of an embryo or fetus any differently than a wrongful-death action brought on behalf of " a person." Again, the first requirement for a wrongful-death action is a death. The second requirement is that the death " be caused by wrongful act, neglect, or fault of another . . . ." The third requirement is that the " wrongful act, neglect, or fault of another" be such that, if death had not ensued, a cause of action could have been filed against the responsible party and damages recovered from them. See MCL 600.2922. As our Supreme Court noted in O'Neill v Morse, 385 Mich. 130, 133; 188 N.W.2d 785 (1971),
the " obvious purpose" of the wrongful-death statute " is to provide an action for wrongful death whenever, if death had not ensued, there would have been an action for damages." In other words, the action brought on behalf of the deceased is the same legal action--with all of its statutory and common-law limitations--that the deceased could have brought if the injuries the deceased sustained because of the wrongful act, neglect, or fault of another had not caused death. See Wesche, 480 Mich. at 90-91; Hardy v Maxheimer, 429 Mich. 422, 438-439; 416 N.W.2d 299 (1987). The nature and purpose of this type of action does not change because it is the death of an embryo or fetus giving rise to the wrongful-death action.
Further, contrary to defendants' argument, a wrongful-death action brought on behalf of an embryo or fetus is not required to be construed as " brought under § 2922a" because of the amendatory language at issue. As our Supreme Court noted in Johnson, MCL 600.2922a " is separate from the wrongful-death statute . . . ." Johnson, 491 Mich. at 422-423. While MCL 600.2922a does recognize as actionable certain prenatal injuries--miscarriage, stillbirth, and physical injury to, or the death of, an embryo or fetus--it does not [311 Mich.App. 137] require that the prenatal injuries result in death to be actionable. Therefore, for example, the " pregnant individual" and the child who suffered but survived injury in utero may pursue statutory causes of action under MCL 600.2922a for such prenatal injuries. See, e.g. Johnson, 491 Mich. at 433 n 36. However, a legal action for death or injuries resulting in death brought on behalf of a deceased person, fetus, or embryo must be brought under the wrongful-death statute, MCL 600.2922, which provides the exclusive remedy. See MCL 600.2921; Jenkins, 471 Mich. at 164.
We also reject defendants' argument that the Supreme Court's holding in Johnson is applicable here. The circumstances in this case are clearly distinguishable. In that case, a wrongful-death action could not be brought on behalf of the deceased fetus because the injuries resulting in death occurred before the effective date of the amendatory language. Johnson, 491 Mich. at 420-421. In this case, the cause of action arose after the effective date of the 2005 amendatory language so, as the Johnson Court acknowledged, " the representative of the fetus's estate is now able to file a wrongful-death claim on the basis of the fetus's death." Id. at 433. In Johnson, " wrongful-death claim" was clearly distinguished from a claim brought under MCL 600.2922a. Id. at 420, 433.
In summary, Simpson brought a wrongful-death action on behalf of her decedent and it was grounded in medical malpractice. This action was not brought under MCL 600.2922a and it need not be considered a statutory cause of action brought under MCL 600.2922a. [311 Mich.App. 138] Therefore, Simpson was not required to allege that defendants committed an affirmative or positive act that caused her decedent's death in order to state a claim under MCL 600.2922. To the contrary, under the wrongful-death statute, MCL 600.2922(1), a cause of action may be brought when death is " caused by wrongful act, neglect, or fault of another . . . ." As the Johnson Court explained, the " more expansive terms 'neglect' and 'fault of another' that [the Legislature]
included in MCL 600.2922(1) . . permit liability on the basis of omissions." Johnson, 491 Mich. at 437. In this case, the alleged " omission" that caused the decedent's death was the failure to perform a cerclage; therefore, plaintiff stated a valid cause of action under MCL 600.2922. Accordingly, the trial court's order granting defendants' motion for partial summary disposition of this wrongful-death action is reversed.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.