EMAIL TO A FRIEND COMMENT

 

Wrongful Conception Without Gross Negligence Limited To Malpractice Damages


A woman had not used birth control for several years, while having sexual intercourse two or three times a week, and did not get pregnant. After her divorce, she began taking birth control pills. At her annual gynecological physical, the 41-year-old woman requested permanent sterilization. Her OB/GYN 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, the OB/GYN was unable to insert the device into either of the woman's fallopian tubes. He then attempted a laparoscopic tubal ligation, but was unable to perform the procedure. She underwent a hysterosalpingogram to verify that her fallopian tubes were blocked. When the x-ray dye did not flow through her fallopian tubes, it was determined that both of her fallopian tubes were occluded.

 

Considering the woman’s age and her history of infertility despite an active sex life, in conjunction with the results of both the failed sterilization procedure and the hysterosalpingogram, the OB/GYN advised the woman that birth control was not necessary because her fallopian tubes were blocked, which had the same effect as a tubal ligation. Although the OB/GYN had seen blocked fallopian tubes become unblocked, in his over 30 years of practicing, the OB/GYN had never had a similarly-situated patient become pregnant with such blockages. The probability of pregnancy in the population of women who are 41 years of age, without any known fertility issues, is about less than one percent. Further, the risks associated with birth control pills, although small, were probably greater than the risk of the woman getting pregnant; therefore, they would not have been indicated even if she had requested birth control pills.

 

Nonetheless, the woman subsequently became pregnant and gave birth to her daughter who had Down's syndrome. The woman sued her OB/GYN and his practice group for wrongful conception seeking both traditional medical malpractice damages and damages for daily living, medical, educational, or other expenses necessary to raise the child to the age of majority.

 

The OB/GYN and his practice group filed a motion for summary disposition, arguing that the woman could not establish that a genuine issue of material fact existed as to whether any alleged act or omission of the OB/GYN constituted gross negligence as required by MCL 600.2971. MCL 600.2971(2), the section that pertains to wrongful conception cases, states:

 

A person shall not bring a civil action for 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 that, but for an act or omission of the defendant, the child would not or should not have been conceived.

 

The woman responded to the OB/GYN and his practice group’s 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 the OB/GYN's conduct amounted to gross negligence.

 

The trial court entered an order denying the OB/GYN and his practice group’s motion for summary disposition. On appeal, the OB/GYN and his practice group argued that the trial court erred in holding that MCL 600.2971 created a cause of action for wrongful conception caused by gross negligence and permitted recovery of the costs of raising a child to the age of majority.

 

The Court of Appeals of Michigan affirmed in part, reversed in part, and remanded for further proceedings. The court held that a person may bring a civil action for 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 that, but for an intentional or grossly negligent act or omission of the defendant, the child would not or should not have been conceived; the woman in this case failed to establish a genuine issue of material fact that the OB/GYN's conduct was grossly negligent; and the woman was permitted to seek the recovery of traditional damages on her wrongful conception medical malpractice claim alleging negligence.

 

A person may bring a civil action for 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 that, but for an intentional or grossly negligent act or omission of the defendant, the child would not or should not have been conceived. Wrongful conception medical malpractice claims generally contend that the defendant's negligent conduct failed to prevent the birth of a child in the following situations: (1) where a physician negligently performs a vasectomy or tubal ligation or when a physician, pharmacist, or other health professional provides any other type of ineffective contraception, the parents conceive, and the birth of a healthy, but unplanned, baby results; (2) where a physician negligently fails to diagnose a pregnancy, thereby denying the mother the choice of termination of the pregnancy at a timely state, and the birth of a healthy, but unwanted, baby results; and (3) where a physician negligently attempts to terminate the pregnancy and the birth of a healthy, but unwanted, baby results. The court noted that this case differed from the typical wrongful conception case, however, in that the woman alleged that the OB/GYN's grossly negligent advice regarding her ability to conceive, and failure to prescribe birth control pills, led to an unplanned, unwanted pregnancy. This case also differed in that she gave birth to a daughter with Down's syndrome.

 

Wrongful conception claims have consistently been permitted in Michigan. However, the types of damages recoverable in wrongful conception cases have varied. Subsection (3) of MCL 600.2971 prohibited a wrongful pregnancy or wrongful conception claim for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority. But subsection (4) provided for an exception to the prohibition stated in subsection (3). Subsection (4) provided, in relevant part:

 

The prohibition stated in subsection (1), (2), or (3) does not apply to a civil action for damages for an intentional or grossly negligent act or omission, including, but not limited to, an act or omission that violates the Michigan penal code, 1931 PA 328, MCL 750 .1 to 750.568.

 

Applying subsection (4) to subsection (3), the court reasoned that a person may bring a civil action for 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 that, but for an intentional or grossly negligent act or omission of the defendant, the child would not or should not have been conceived. A plaintiff asserting a wrongful conception claim premised on a negligent act or omission of a defendant still could not recover damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority. Thus, the types of damages recoverable in a wrongful conception claim depended upon whether the defendant's act or omission was negligent or whether the defendant's act or omission was intentional or grossly negligent. The court concluded that the trial court did not err when it held that MCL 600.2971 does not prohibit a wrongful conception claim for damages for daily living, medical, educational, and other expenses necessary to raise a child to the age of majority that, but for the grossly negligent act or omission of the defendant, the child would not or should not have been conceived.

 

Even though the woman could bring a cause of action for wrongful conception caused by gross negligence, she failed to establish a genuine issue of material fact that the OB/GYN's conduct was grossly negligent. In contexts where civil liability would only exist if a defendant's conduct was grossly negligent, Michigan courts have generally applied the standard articulated in the government tort liability act, MCL 691.1401 et seq., which defines gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” The court found that, under the circumstances of this case, informing the woman that she could not become pregnant and that she no longer required birth control, as well as failing to prescribe birth control pills, was not conduct so reckless as to demonstrate a substantial lack of concern for whether plaintiff would become pregnant. The court held that no reasonable juror could conclude that the OB/GYN's conduct was so reckless that it demonstrated a substantial lack of concern for whether the woman would get pregnant as a consequence of his advice regarding the need for contraception and his failure to prescribe birth control pills. The OB/GYN's advice to the woman regarding the necessity of contraception was based on his over 30 years of experience and grounded on several objective and persuasive factors that informed his medical judgment and subsequent actions, including her age (41–years–old), her multiple-year history of infertility despite an active sex life with two different partners, the OB/GYN's inability to place devices into either of her fallopian tubes because of occlusion, and his visualization of the fallopian tube occlusions during the hysterosalpingogram. Accordingly, the court reversed the trial court's order denying the OB/GYN and his practice group's motion for summary disposition with regard to the woman's claim that, because of the OB/GYN's gross negligence, she was permitted to seek recovery for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority on this wrongful conception medical malpractice claim.

 

The woman was permitted to seek the recovery of traditional damages on her wrongful conception medical malpractice claim alleging negligence. A plaintiff in a wrongful conception action is entitled to recover traditional medical malpractice damages. While MCL 600.2971(3) expressly limited a plaintiff's right to recover the expenses related to raising a child to the age of majority in a wrongful conception medical malpractice action premised on negligence, the statute included no language limiting a plaintiff's ability to recover traditional medical malpractice damages. The court affirmed the trial court’s order denying the OB/GYN and his practice group's motion for summary disposition with regard to the woman's claim that, because of the OB/GYN's negligence, she was permitted to seek recovery for traditional medical malpractice damages on the wrongful conception claim.

 

The Court of Appeals of Michigan affirmed the trial court’s denial of the OB/GYN and his practice group’s motion for summary judgment in part, reversed in part, and remanded for further proceedings.

 

See: Cichewicz v. Salesin, 2014 WL 2894919 (Mich.App., June 26, 2014) (not designated for publication).

 

 

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