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From the Law Offices of Garan Lucow Miller, P.C.

Law Fax Volume XXIII, No. 15
June 7, 2011 

From the Co-Editors

James L. Borin & Simeon R. Orlowski

 

Does Michigan Recognize a Separate Claim for the Wrongful Death of a Previable Fetus?

CONTRIBUTOR – DAVID M. SHAFER

 

 EDITORS’ NOTE

David Shafer of our Detroit office recently prepared a short memorandum which came to our attention. With David’s permission, we are publishing this memorandum.

 

Last week a colleague mentioned that he was in the process of settling a tort lawsuit on behalf of a defendant who had negligently driven his car into a pregnant plaintiff’s car. The collision resulted in the death or stillbirth of the plaintiff’s previable fetus. This colleague was wondering, in order to effect a full and final settlement of all possible claims against the defendant, would the plaintiff have to sign a release not only in her personal capacity, to cover her own losses, but also in her capacity as the personal representative of the estate of the previable fetus, to cover losses sustained by the estate of the previable fetus itself? In other words, does Michigan law recognize a separate claim for the wrongful death of a previable fetus?

Good question. And the answer seems to be: maybe.

I remembered that Michigan law has long recognized the personal right of a pregnant woman who suffers the tortious loss of her pregnancy to sue the wrongdoer for money damages to compensate her for her own losses. Those money damages are intended to compensate the pregnant woman for her own physical and mental pain and suffering, including the pain and suffering arising from her loss of the society and companionship of the previable fetus that was stillborn. Tunnicliffe v Bay Cities Consol RR Co, 102 Mich 624 (1894).

I also remembered that in 1997, the Michigan Supreme Court stated that there is no recognized claim in Michigan law for the wrongful death of a previable fetus. Thomas v Stubbs, 455 Mich 853 (1997), recon den 568 NW2d 672 (1997).

However, some quick research disclosed that in the wake of the 1997 decision of the Michigan Supreme Court, the Michigan Legislature passed a new statute, effective January 1, 1999, providing in essence that anyone who negligently causes a pregnant woman to suffer a miscarriage or stillbirth or death of an embryo or fetus is liable for damages:

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. [MCL 600.2922a.]

This 1999 statute includes exceptions to liability for acts committed by the pregnant woman herself and for medical procedures performed by a physician with the pregnant woman’s consent. So a voluntary abortion would be excluded from liability under the statute.

While this 1999 statute seems to create or recognize a cause of action for the “miscarriage, stillbirth . . . or death of the embryo or fetus,” that is, for the death of a previable fetus, it does not specify who would be a proper party to bring such an action or what damages are available for such loss.

When the 1999 statute was being considered by the Michigan Legislature, there had been concerns expressed during the legislative process that the new law should not be interpreted as affording a previable fetus the same legal status for wrongful-death rights held by a person, including a viable fetus, because that would unconstitutionally conflict with holdings of the U.S. Supreme Court in abortion cases concerning the non-personhood of a fetus. The exceptions to liability included in the statute may have been included to avoid such conflict.

At least one commentator has analyzed the history and language of the 1999 Michigan statute and has concluded that “the legislature’s apparent intent was to provide recovery for the death of an embryo or fetus, without regard to viability,” and that the most logical interpretation of who can bring the cause of action for that recovery would be a personal representative of the previable fetus’s estate, who could then recover damages in conformity with the damages otherwise allowed under Michigan’s wrongful death statute. Such damages would include those incurred by the previable fetus’s estate for medical and burial expenses and also those sustained by the people who would have been the previable fetus’s close family members (parents, grandparents, brothers, or sisters). Dena M. Marks, Person v potential: judicial struggles to decide claims arising from the death of an embryo or fetus and Michigan’s struggle to settle the question, 37 Akron L Rev 41 (2004); Dena M. Marks and John H. Marks, Lingering questions about the wrongful death of a previable fetus: prenatal torts in Michigan, Mich Bar Jrnl (June 2004).

After the 1999 statute became effective, there was a medical-malpractice case considered by the Michigan Court of Appeals that concerned damages sought by a plaintiff arising from the miscarriage of her previable fetus. In that case, however, the plaintiff sought only damages in her own right, and neither the parties involved nor the court itself cited or mentioned the 1999 statute. McClain v University of Michigan Bd of Regents, 256 Mich App 492 (2003), lv den 469 Mich 948 (2003).

And so, apparently, at this time there is no case law determining whether or to what extent the 1999 statute creates a separate claim for the wrongful death of a previable fetus. While this issue (thankfully!) does not arise often, it would seem that it’s only a matter of time for it to arise and to be resolved by an appellate court in Michigan.

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SAVE THE DATE

 EVENT: Garan Lucow Miller’s Annual Golf Outing

DATE: Tuesday, August 23, 2011

VENUE: Forest Akers West Golf course on the campus of MSU

Banquet dinner to be held at the University Club

 

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