Cichewicz v. Salesin

854 N.W.2d 901, 306 Mich. App. 14
CourtMichigan Court of Appeals
DecidedJune 26, 2014
DocketDocket No. 312806
StatusPublished
Cited by15 cases

This text of 854 N.W.2d 901 (Cichewicz v. Salesin) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cichewicz v. Salesin, 854 N.W.2d 901, 306 Mich. App. 14 (Mich. Ct. App. 2014).

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 [17]*17“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 [plaintiffs] 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 [18]*18wrongful-conception cases. In particular, defendants noted that during 14 years of plaintiffs 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 plaintiffs 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 plaintiffs fallopian tubes, it was determined that both of plaintiffs 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 NW2d 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 [19]*19child’s health, unless the alleged wrongful conduct was intentional or grossly negligent,” defendants argued that they were entitled to summary disposition of plaintiffs 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 plaintiffs 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 con[20]*20ception claim, plaintiffs 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.

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Bluebook (online)
854 N.W.2d 901, 306 Mich. App. 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cichewicz-v-salesin-michctapp-2014.