OB’s Refusal to Perfrom Cerclage Was Not an Affirmative Act As Is Required to Find Statutory Liability for Negligence Resulting in Death of Fetus

A woman had a history of miscarriages due to incompetent cervix. She then successfully had three full-term births with the aid of an obstetrical surgical procedure known as cerclage. During the birth of her third child, her obstetrician removed her cerclage suture. During her fourth pregnancy, the same obstetrician refused to perform a cerclage. In September 2005, the woman went into pre-term labor and the fetus, at 17 weeks gestation, died. 


The woman sued her obstetrician and his professional corporation on her own behalf and on behalf of the deceased fetus. One claim was brought under a Michigan statute which states, “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.” The Michigan Supreme Court held that the obstetrician’s refusal to perform the cerclage was not an affirmative act as required by the statute. The statute provides liability only for affirmative acts and does not encompass omissions. In this case, the plaintiffs only alleged an omission or failure to act by the defendants. Therefore, the plaintiffs failed to state a claim under the statute.


The Michigan Supreme Court reversed and remanded the case to the trial court for the entry of partial summary disposition in favor of the obstetrician and his professional corporation. The court noted that their decision did not affect the woman’s remaining medical malpractice claims.


Another claim was brought under Michigan’s wrongful death statute. The wrongful death statute had been amended, effective December 2005, to include death as referred to in the statute described above. The Michigan Supreme Court held that the December 2005 amendment to the wrongful death statute did not apply retroactively. 


See: Johnson v. Pastoriza, 2012 WL 2016398 (Mich., June 5, 2012) (not designated for publication).