Cichewicz v. Salesin

306 Mich.App. 14

854 N.W.2d 901

CICHEWICZ

v.SALESIN.

Docket No. 312806.

Court of Appeals of Michigan.

Submitted March 12, 2014, at Detroit.

Decided June 26, 2014, at 9:05 a.m.

Morgan & Meyers, PLC, Dearborn (by Jeffrey T. Meyers ), for plaintiff.

Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit, (by Beth A. Wittman and William W. Vertes ) for defendants.

Before: M.J. KELLY, P.J., and MARK J. CAVANAGH and FORT HOOD, JJ.

Opinion

PER CURIAM.

This case is before the Court on order of our Supreme Court for consideration, as on leave granted, of a trial court order denying defendants' motion for summary disposition in this wrongful-conception medical malpractice case.¹ We affirm in part, reverse in part, and remand for further proceedings.

On August 8, 2011, plaintiff, Lori Cichewicz, filed a complaint against defendants Michael S. Salesin, M.D.; Michael S. Salesin, M.D., P.L.C.; and Walnut Lake OB/GYN, P.L.L.C., averring that she was advised by Salesin in September 2007 that her fallopian tubes were blocked and, therefore, it was no longer necessary for her to use contraceptives. However, in October 2010, plaintiff became pregnant and subsequently gave birth to her daughter, who has Down syndrome.

In Count I of her complaint, plaintiff brought a claim of “gross negligence/medical malpractice” against Salesin. Plaintiff alleged that the standard of care required Salesin “to refrain from informing [her] that it was impossible her [sic] to become pregnant,” “to refrain from informing [her] that she no longer required birth control,” and to “continue to provide [her] with birth control, given her sincere stated desire not to become pregnant.” Plaintiff further alleged that Salesin “grossly violated the standard of care” by taking contrary actions. That is, plaintiff alleged, “Salesin's negligent actions and omissions, as outlined above, were so reckless as to demonstrate a substantial lack of concern, on the part of Salesin, for whether [plaintiff] would become pregnant as well as the ramifications of [plaintiff's] becoming pregnant.” Plaintiff claimed that, as a direct and proximate result of Salesin's violations of the standard of care, she stopped using birth control and became pregnant; consequently, she “was entitled to damages as are deemed fair and just regarding the pregnancy and continuing attendant care of her child....” Specifically, plaintiff sought damages for physical injury, emotional distress, mental anguish, medical expenses related to her pregnancy, incidental expenses resulting from her pregnancy, denial of social pleasures and enjoyments because of her pregnancy, emotional distress related to knowing she would deliver a child with Down syndrome, loss of wages and earning capacity, as well as medical, daily living, attendant care, and educational expenses, and all other expenses associated with raising her child.

In Count II of her complaint, plaintiff brought a claim of vicarious liability against Walnut Lake OB/GYN, alleging that Salesin was its agent or employee when the purported negligence occurred. In Count III, plaintiff brought a claim of vicarious liability against Michael S. Salesin, M.D., P.L.C., alleging that Salesin was its agent or employee when the purported negligence occurred.

In June 2012, defendants moved for summary disposition, arguing that plaintiff could not establish that a genuine issue of material fact existed with regard to whether any alleged act or omission of Salesin constituted gross negligence as required by MCL 600.2971 in wrongful-conception cases. In particular, defendants noted that during 14 years of plaintiff's marriage, she did not use birth control while having sexual intercourse two or three times a week without getting pregnant. However, in 2005, after her divorce, she began taking birth control pills and remained on the medication at the time of her annual gynecological physical in June 2007, when she requested permanent sterilization. Thereafter, in August 2007, Salesin attempted a sterilization procedure known as an Essure procedure, which involved the implantation of a device in each fallopian tube that causes scarring and results in permanent blockage of the fallopian tubes. However, Salesin was unable to insert the device into either of plaintiff's fallopian tubes. He then attempted a laparoscopic tubal ligation, but was unable to perform the procedure. In September 2007, plaintiff underwent a hysterosalpingogram to determine whether her fallopian tubes were blocked. When the x-ray dye did not flow through plaintiff's fallopian tubes, it was determined that both of plaintiff's fallopian tubes were occluded. Consequently, Salesin advised plaintiff that birth control was not necessary because her fallopian tubes were blocked and that the blockage had the same effect as a tubal ligation. Salesin testified that in his more than 30 years of practicing, he had never had a similarly situated patient become pregnant with such blockages. Defendants argued that reasonable jurors could not honestly conclude that Salesin's conduct constituted gross negligence, i.e., “ ‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.’ ” Odom v. Wayne Co., 482 Mich. 459, 469, 760 N.W.2d 217 (2008) (citation omitted). And because “MCL 600.2971 prohibits claims for wrongful conception, including claims for the cost of raising the child to the age of majority, regardless of the child's health, unless the alleged wrongful conduct was intentional or grossly negligent,” defendants argued that they were entitled to summary disposition of plaintiff's complaint.

Plaintiff responded to defendants' motion for summary disposition, arguing that MCL 600.2971 did not prohibit her claim for traditional medical malpractice damages, regardless of whether she could demonstrate gross negligence. Plaintiff further argued that she had, in fact, presented sufficient evidence to create a question of material fact regarding whether Salesin's conduct amounted to gross negligence.

Defendants replied that there was “no merit to plaintiff's argument that the plain language of MCL 600.2971 entitles plaintiff to recover damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority on a wrongful pregnancy or wrongful conception claim in cases of intentional or grossly negligent acts or omissions [.]” Defendants argued that MCL 600.2971 “specifically prohibits an action for damages in a wrongful conception case, and provides that the prohibition does not apply to a civil action for damages for an intentional or grossly negligent act or omission.” Defendants asserted that this statute did not abrogate the “traditional common-law rule that a person may not recover damages in a wrongful conception action.... [T]he common law would apply to prohibit a wrongful conception action for damages until the child's age of majority.” Further, defendants argued, plaintiff was not entitled to recover “damages in her own right as a result of her pregnancy, including her own medical expenses, pain and suffering, and lost wages” because, “[g]iven that [MCL 600.2971(3) and (4) ] clearly prohibit[ ] ‘a person’ from bringing a wrongful pregnancy or wrongful conception claim, plaintiff's claim in this case cannot go forward.” Defendants also reiterated their argument that plaintiff had not established a question of fact on the issue of gross negligence.

Following oral argument, the trial court denied defendants' motion for summary disposition. After noting that defendants' motion was premised on MCR 2.116(C)(10), the trial court stated, “MCL 600.2971 prohibits claims for wrongful conception, including claims for the cost of raising a child to the age of majority, regardless of the child's health unless the alleged wrongful conduct was intentional or grossly negligent.” The trial court recounted the underlying facts, including that Salesin advised plaintiff that, because her fallopian tubes were blocked, she would not be able to get pregnant and did not need birth control. The trial court then held:

Based on this evidence and particularly the testimony of plaintiff that the chance of the pregnancy was impossible according to him; and that even if plaintiff wanted another child ... she would not be able to do so; further, that she had testified she specifically asked Salesin about going back to birth control as a precautionary measure; and that he said there's no need for birth control as the tubes are blocked; his own testimony that he had seen tubes come unblocked once they're blocked, the Court finds that evidence exists creating a question of fact as to whether or not the defendant's act or omission was so reckless as to demonstrate a substantial lack of concern for whether an injury would result; and thus, should be decided by a trier-of-fact.

The trial court then entered an order denying defendants' motion for summary disposition. On April 10, 2013, the trial court entered a stipulated order for the dismissal of all claims against defendant Walnut Lake OB/GYN, P.L.L.C. Defendants then filed an application for leave to appeal in this Court, which was denied. Cichewicz v. Salesin, unpublished order of the Court of Appeals, entered May 16, 2013 (Docket No. 312806). Thereafter, defendants applied for leave to appeal in our Supreme Court, which, in lieu of granting leave to appeal, remanded the matter to us for consideration as on leave granted. Chichewicz v. Salesin, 494 Mich. 873, 832 N.W.2d 249 (2013).

On appeal, defendants argue that the trial court erred by ruling that MCL 600.2971 creates a cause of action for wrongful conception caused by gross negligence and permits recovery of the costs of raising a child to the age of majority.

This Court reviews de novo a trial court's decision on a motion for summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). We also review de novo as a question of law issues of...