Johnson v. Pastoriza

                                                                              Michigan Supreme Court
                                                                                    Lansing, Michigan
                                                        Chief Justice:          Justices:



Opinion                                                 Robert P. Young, Jr. Michael F. Cavanagh
                                                                             Marilyn Kelly
                                                                             Stephen J. Markman
                                                                             Diane M. Hathaway
                                                                             Mary Beth Kelly
                                                                             Brian K. Zahra

                                                                         FILED JUNE 5, 2012

                              STATE OF MICHIGAN

                                       SUPREME COURT


 CANDICE JOHNSON and BABY
 JOHNSON,

               Plaintiffs-Appellees,

 v                                                               No. 142127

 RAJAN PASTORIZA, M.D., and RAJAN
 PASTORIZA, M.D., P.L.C., d/b/a
 WOMEN’S FIRST HEALTH SERVICES,

               Defendants-Appellants.


 BEFORE THE ENTIRE BENCH

 ZAHRA, J.
        Candice Johnson suffered a lost pregnancy at 20 weeks’ gestation, and on behalf

 of herself and the deceased fetus, Baby Johnson, sued Rajan Pastoriza, M.D., and his

 professional corporation, alleging negligence under MCL 600.2922a, which provides that

 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,” and medical malpractice. Defendants
moved for summary disposition. The circuit court refused to grant summary disposition,

but ordered plaintiffs to appoint a personal representative for the estate of Baby Johnson

and to amend the complaint to bring the negligence claim that had been brought on behalf

of Baby Johnson through the wrongful-death statute, MCL 600.2922.                Defendants

appealed by leave granted. The Court of Appeals held that MCL 600.2922, as amended

by 

2005 PA 270

, effective December 19, 2005, to incorporate the language “or death as

described in section 2922a,” applied retroactively to plaintiffs’ claim for wrongful death,

which arose no later than November 1, 2005. The Court of Appeals further held that

Pastoriza’s refusal to perform a cerclage was a “wrongful or negligent act” under MCL

600.2922a.

       We hold that the 2005 amendment of the wrongful-death statute, incorporating the

language “or death as described in” MCL 600.2922a, does not apply to claims arising

before the effective date of the amendment. The Legislature only intended the 2005

amendment to apply to claims arising on or after the effective date. Further, because

defendants would be subjected to liability that did not exist at the time the cause of action

arose, the amendment is not remedial and, therefore, cannot be deemed retroactive.

Because the 2005 amendment of MCL 600.2922(1), incorporating “death as described

in” MCL 600.2922a, is not retroactive, plaintiffs can only proceed under MCL

600.2922a.1 In regard to plaintiffs’ claim under MCL 600.2922a, we hold that MCL


1
  Given this disposition, we do not address “whether the reference to ‘death as described
in section 2922a’ in the 2005 amendment of MCL 600.2922 incorporates the exceptions
to recovery contained at MCL 600.2922a(2).” Johnson v Pastoriza, 

489 Mich 856

 (2011)
(Johnson II).



                                             2
600.2922a plainly requires an affirmative act and that an omission or refusal to act cannot

constitute an affirmative act. We therefore reverse the judgment of the Court of Appeals

and remand the case to the circuit court for entry of summary disposition in favor of

defendants on the wrongful-death claim.2

                                   I. FACTUAL HISTORY

         Candice had a history of miscarriages because of an incompetent cervix. Using a

cerclage procedure between 13 and 16 weeks’ gestation, however, Candice was able to

have three consecutive full-term pregnancies. For her next pregnancy, she saw Pastoriza

as her obstetrician. Pastoriza was aware of her success with the cerclage procedure and

had removed her cerclage suture shortly before she last gave birth.

         In September 2005, Candice experienced vaginal bleeding and went to Foote

Hospital in Jackson. Emergency personnel recommended that she rest and meet with her

treating obstetrician. A few days later, she saw Pastoriza, but he did not perform a

cerclage. At that time an ultrasound showed a live, 12-week-old fetus. On October 12,

2005, another ultrasound showed a live fetus at almost 17 weeks’ gestation.            The

ultrasound also showed that the length of Candice’s cervix was roughly the same as when

the previous cerclages had been performed. On October 19, 2005, Candice complained

to Pastoriza that she felt preterm, labor-like cramping. She asked Pastoriza to perform a

cerclage, but he did not do so. On November 1, 2005, Candice’s cervix dilated and she

went into premature labor. She was transferred to Sparrow Hospital in Lansing and


2
    This opinion does not affect plaintiff’s separate medical malpractice claim.



                                               3
received an emergency cerclage, but lost the 20-week-old fetus shortly after the transfer.

The failed emergency cerclage also resulted in a significant and permanent cervical tear

that might prevent Candice from having another child.

                              II. LEGAL BACKGROUND

       Following amendment by 

1985 PA 93

, subsection (1) of Michigan’s wrongful-

death statute, MCL 600.2922(1), provided that

       [w]henever the death of a person or injuries resulting in death shall be
       caused by wrongful act, neglect, or fault of another, and the act, neglect, or
       fault is such as would, if death had not ensued, have entitled the party
       injured to maintain an action and recover damages, the person who or the
       corporation that would have been liable, if death had not ensued, shall be
       liable to an action for damages, notwithstanding the death of the person
       injured, and although the death was caused under circumstances that
       constitute a felony.

This version of MCL 600.2922 did not permit a plaintiff to bring a claim for the death of

a nonviable fetus because a nonviable fetus was not viewed as a “person.”3

       In 1998, the Legislature created a new statute, MCL 600.2922a. Section 2922a,

which became effective on January 1, 1999, is separate from the wrongful-death statute,

and imposes liability for wrongful or negligent acts against a pregnant woman that result



3
  In Thomas v Stubbs, 

455 Mich 853

; 

564 NW2d 463

 (1997), this Court acknowledged
that “[s]ince at least 1975 it has been held that a nonviable fetus is not a ‘person’ within
the meaning of the wrongful death act.” Cf. Thomas v Stubbs, 

218 Mich App 46

; 

553 NW2d 634

 (1996) (holding that a fetus “born alive,” although not viable, is a “person”
within the meaning of the wrongful-death statute). The parties have not asked us to
reconsider Thomas and such reconsideration is unnecessary given that the Legislature has
since amended MCL 600.2922 and adopted MCL 600.2922a, which specifically imposes
liability under certain circumstances for wrongful or negligent acts against a pregnant
woman that result in physical injury to or the death of a fetus.



                                             4
in the pregnant woman’s miscarriage or stillbirth or “physical injury” to the fetus. MCL

600.2922a, as added by 

1998 PA 2011

, provided:

              (1) 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 the embryo or fetus.

             (2) This section does not apply to any of the following:

             (a) An act committed by the pregnant individual.

             (b) A medical procedure performed by a physician or other licensed
      medical professional within the scope of his or her practice and with the
      pregnant individual’s consent or the consent of an individual who may
      lawfully provide consent on her behalf or without consent as necessitated
      by a medical emergency.

            (c) The lawful dispensation, administration, or prescription of
      medication.

             (3) This section does not prohibit a civil action under any other
      applicable law.

             (4) As used in this section, “physician or other licensed medical
      professional” means a person licensed under article 15 of the public health
      code, 

1978 PA 368

, MCL 333.16101 to 333.18838.

      In 2002, the Legislature amended MCL 600.2922a. The amendment extended

civil liability to wrongful or negligent acts that caused the “death” of an embryo or fetus

and changed the term “medical professional” to “health professional.”4 MCL 600.2922a,

as amended by 

2002 PA 164

, currently provides:

            (1) A person who commits a wrongful or negligent act against a
      pregnant individual is liable for damages if the act results in a miscarriage


4
  

2001 PA 1

 similarly amended the Michigan Penal Code to provide felony penalties for
intentional conduct or gross negligence that causes the death of an embryo or fetus.



                                            5
         or stillbirth by that individual, or physical injury to or the death of the
         embryo or fetus.

                  (2) This section does not apply to any of the following:

                  (a) An act committed by the pregnant individual.

                (b) A medical procedure performed by a physician or other licensed
         health professional within the scope of his or her practice and with the
         pregnant individual’s consent or the consent of an individual who may
         lawfully provide consent on her behalf or without consent as necessitated
         by a medical emergency.

               (c) The lawful dispensation, administration, or prescription of
         medication.

                (3) This section does not prohibit a civil action under any other
         applicable law.

                (4) As used in this section, “physician or other licensed health
         professional” means a person licensed under article 15 of the public health
         code, 

1978 PA 368

, MCL 333.16101 to 333.18838.

         In 2003, the Court of Appeals addressed a medical malpractice action concerning

a miscarriage in McClain v Univ of Mich Bd of Regents.5 In McClain, the mother sought

to recover damages for emotional distress resulting from the medical malpractice that had

caused the miscarriage.6 The defendant moved for summary disposition, claiming that

the plaintiff was not entitled to recover damages arising from the loss of her deceased

fetus.7 The trial court granted summary disposition, holding that the plaintiff had failed

to state a valid medical malpractice claim “with regard to delivery of a nonviable fetus.”8

5
    McClain v Univ of Mich Bd of Regents, 

256 Mich App 492

; 

665 NW2d 484

 (2003).
6
    

Id. at 493-495

.
7
    

Id. at 494

.
8
    

Id. at 495

.



                                                 6
         The Court of Appeals reversed.9 It first noted that a wrongful-death action under

MCL 600.2922 could not be brought on behalf of the fetus because the wrongful-death

statute applied only to a “person” and the plaintiff’s nonviable fetus was not a person.10

The mother, therefore, could not recover for loss of society and companionship under

MCL 600.2922.11 Significantly, the McClain panel did not recognize or address the

import of MCL 600.2922a.

         The Legislature amended the wrongful-death statute in 2005 to specifically

incorporate and cross-reference MCL 600.2922a. Because of the 2005 amendment, MCL

600.2922(1) currently reads as follows:

                Whenever the death of a person, injuries resulting in death, or death
         as described in section 2922a shall be caused by wrongful act, neglect, or
         fault of another, and the act, neglect, or fault is such as would, if death had
         not ensued, have entitled the party injured to maintain an action and recover
         damages, the person who or the corporation that would have been liable, if
         death had not ensued, shall be liable to an action for damages,
         notwithstanding the death of the person injured or death as described in
         section 2922a, and although the death was caused under circumstances that
         constitute a felony. [Emphasis added.]

Public Act 270 of 2005 was signed into law and given immediate effect as of December

19, 2005.




9
    

Id. at 499-500

.
10
     

Id.

 at 495
11
     

Id. at 495-496

.



                                               7
                              III. PROCEDURAL HISTORY

       Plaintiffs filed a complaint against defendants alleging negligence under MCL

600.2922a and medical malpractice. The complaint did not mention wrongful death or

MCL 600.2922.

       Defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10).

Defendants first argued that plaintiffs could not sustain a wrongful-death claim for a

nonviable fetus under MCL 600.2922 because a nonviable fetus is not a person.

Defendants also argued that plaintiffs had failed to state a claim under MCL 600.2922a

because there was no allegation that defendants had committed an affirmative act.

       In response, plaintiffs maintained that the refusal to perform a cerclage was an

affirmative act. Plaintiffs further argued that MCL 600.2922, as amended by 

2005 PA 270

, was inapplicable because the amendment took effect after the instant case arose,

stating, “It was not until December, 2005 that the legislature made clear that a cause of

action for the death of a fetus under MCL 600.2922a now must be brought as a wrongful

death action . . . .” Indeed, they indicated, “[f]or this reason, [p]laintiffs fashioned their

complaint on behalf of the fetus under MCL 600.2922a, not under the wrongful death

act.” Plaintiffs did posit, however, that “if this Court disagrees, then plaintiff has only to

either amend the complaint to add a Count III of wrongful death of the fetus, or bring a

separate wrongful death action on behalf of the fetus under MCL 600.2922, and then

consolidate.”

       Defendants then filed an additional motion for summary disposition. Defendants

argued that the 2005 amendment of MCL 600.2922 was retroactive, and by incorporating

references to MCL 600.2922a, MCL 600.2922, as amended by 

2005 PA 270

, requires


                                              8
that a plaintiff establish, in a case in which “death as described in section 2922a” occurs,

negligence through an affirmative act.

         After a hearing, the circuit court denied defendants’ motions, finding that plaintiffs

could develop a cause of action under MCL 600.2922a through the wrongful-death

statute or by pursuing a standard medical malpractice claim under McClain. The court

reasoned that Pastoriza’s refusal to perform the cerclage after Candice asked for it could

be interpreted under MCL 600.2922a as an affirmative act and that the exception for

medical providers did not apply.        The court also permitted plaintiffs to amend the

complaint.

         Defendants applied for interlocutory leave to appeal.12 On leave granted, the

Court of Appeals affirmed the circuit court’s decision in a published opinion.13 Before

addressing the substance of plaintiffs’ claims, the Court considered whether MCL

600.2922, as amended by 

2005 PA 270

, applied retroactively. The Court concluded that

the 2005 amendment was remedial and, thus, that the presumption that new statutes only

have prospective application was inapplicable.          The Court reasoned that the 2005

amendment “was enacted in order to clarify MCL 600.2922 and MCL 600.2922a and to

resolve a controversy regarding their meaning.”14 Having concluded that the amended

12
     This interlocutory appeal does not involve Candice’s standard malpractice action.
13
  Plaintiffs submitted their third amended complaint after the Court of Appeals issued its
opinion in this case. The third amended complaint, filed in October 2010, reasserted
Candice’s claims of medical malpractice under McClain, her individual negligence claim
under MCL 600.2922a, and added a new claim for wrongful death on behalf of the estate
of Baby Johnson.
14
     Johnson v Pastoriza, 

290 Mich App 260, 272

; 

810 NW2d 42

 (2010) (Johnson I).



                                               9
version of MCL 600.2922 applies retroactively, the Court then rejected defendants’

position that MCL 600.2922a requires an affirmative act in order to establish a claim

under the wrongful-death statute for death of a fetus. The Court stated:

                  Pursuant to MCL 600.2922, a party need not establish that the injury
          was caused by an act. Rather, MCL 600.2922 specifically provides that
          liability is possible when the injury is “caused by wrongful act, neglect, or
          fault of another . . . .” While MCL 600.2922 refers to a “death as described
          in [MCL 600.2922a],” it does not indicate that the death in question must
          occur in the manner described in MCL 600.2922a. Plaintiffs are alleging
          that defendants caused their injuries when they neglected to perform the
          requested procedure in a timely manner. That allegation, when accepted as
          true, sufficiently established a cause of action pursuant to MCL
          600.2922.[15]

          The Court reasoned in the alternative that Pastoriza’s refusal to perform the

cerclage constituted an affirmative act.16 The Court also concluded that the medical

provider exception of MCL 600.2922a was inapplicable because no medical procedure

had been performed.17

          Defendants filed an application for leave to appeal in this Court. This Court

granted leave to appeal in an order dated March 23, 2011, and directed the parties to brief

“(1) whether the 2005 amendment of MCL 600.2922, 

2005 PA 270

, applies retroactively

and (2) if so, whether the reference to ‘death as described in section 2922a’ in the 2005




15
     

Id. at 272-273

 (alteration in original).
16
     

Id. at 273

.
17
     

Id. at 274

.



                                                10
amendment of MCL 600.2922 incorporates the exceptions to recovery contained at MCL

600.2922a(2).”18

                               IV. STANDARD OF REVIEW

         We review de novo a trial court’s ruling on a motion for summary disposition.19

Likewise, whether a statute applies retroactively is a question of statutory construction

that this Court reviews de novo.20 Questions of statutory interpretation are questions of

law that are reviewed de novo.21

                                      V. ANALYSIS

       A. RETROACTIVITY OF MCL 600.2922(1) AS AMENDED BY 

2005 PA 270

         Public Act 270 of 2005 took effect on December 19, 2005, and plaintiffs’ cause of

action arose on November 1, 2005. Plaintiffs argue that the Court of Appeals was correct

in holding that 

2005 PA 270

 is retroactive and applicable to this case. Plaintiffs argue

that the Court of Appeals correctly held that MCL 600.2922 specifically provides that

liability is possible when the “death as described in [MCL 600.2922a]” is “caused by

wrongful act, neglect, or fault of another.” Thus, plaintiffs need not establish under MCL

600.2922, as amended by 

2005 PA 270

, that the injury was caused by Pastoriza’s

affirmative act.

18
     Johnson II, 489 Mich at 856.
19
     Haynes v Neshewat, 

477 Mich 29, 34

; 

729 NW2d 488

 (2007).
20
  Frank W Lynch & Co v Flex Technologies, Inc, 

463 Mich 578, 583

; 

624 NW2d 180

(2001).
21
     Haynes, 

477 Mich at 34

.



                                            11
         In determining whether a statute applies retroactively or prospectively, the intent

of the Legislature governs.22 Statutes are presumed to apply prospectively unless the

Legislature clearly manifests the intent for retroactive application.23 This is “especially

true when giving a statute retroactive operation will . . . create a new liability in

connection with a past transaction, or invalidate a defense which was good when the

statute was passed.”24     Further, “[e]ven if the Legislature acts to invalidate a prior

decision of this Court, the amendment is limited to prospective application if it enacts a

substantive change in the law.”25

         While 

2005 PA 270

 was given immediate effect, nothing in the statutory

amendment suggests that the Legislature intended retroactive effect.            The phrase

“immediate effect” simply refers to Const 1963, art 4, § 27, which provides that “[n]o act

shall take effect until the expiration of 90 days from the end of the session at which it was

passed, but the legislature may give immediate effect to acts by a two-thirds vote of the




22
     Lynch, 

463 Mich at 583

.
23
  Brewer v A D Transp Express, Inc, 

486 Mich 50, 55-56

; 

782 NW2d 475

 (2010);
Franks v White Pine Copper Div, 

422 Mich 636, 670

; 

375 NW2d 715

 (1985).
24
     Hansen-Snyder Co v Gen Motors Corp, 

371 Mich 480, 484

; 

124 NW2d 286

 (1963).
25
  Brewer, 

486 Mich at 56

, citing Hurd v Ford Motor Co, 

423 Mich 531, 533

; 

377 NW2d 300

 (1985).



                                             12
members elected to and serving in each house.” (Emphasis added.)26 Use of the phrase

“immediate effect” does not at all suggest that a public act applies retroactively.27

       As we have noted in other cases, “the Legislature has shown . . . that it knows how

to make clear its intention that a statute apply retroactively.”28 In this case, that the

Legislature knows how to do so is palpably demonstrated by considering a previous

amendment of the wrongful-death statute. MCL 600.2922, as amended 

1985 PA 93

, was

ordered to take immediate effect on the date the act was filed, July 10, 1985.29 In contrast

to 

2005 PA 270

, however, § 2 of 

1985 PA 93

 expressly provided, in pertinent part, “This

amendatory act applies to cases and matters pending on or filed after the effective date of

this amendatory act. While the Legislature made clear its intention that 

1985 PA 93

 take

immediate effect on the date it was filed, it also made clear that the amendatory act would

be applied retroactively to cases and matters that were pending on the effective date of

the amendatory act. We will not ignore that the Legislature did not include language


26
  We agree with the opinion that a bill passed by the Legislature, given immediate effect
in accordance with Const 1963, art, 4, § 27, and signed by the Governor becomes law
upon its filing with the Secretary of State. See OAG, 1983-1984, No 6201, p 230
(January 30, 1984).
27
   Compare Ludka v Dep’t of Treasury, 

155 Mich App 250, 260-261

; 

399 NW2d 490

(1986) (holding that Const 1963, art 4, § 27 does not require the Legislature to pass
legislation by a ⅔ vote in order to make the legislation retroactive).
28
    Lynch, 

463 Mich at 584

, citing MCL 141.1157 (“This act shall be applied
retroactively . . . .”); MCL 324.21301a(2) (“The changes in liability that are provided for
in the amendatory act that added this subsection shall be given retroactive application.”).
29
  Section 3 of 

1985 PA 93

 conditioned the effective date of the act on the enactment of
HB 4486 of the 83rd Legislature. That bill became law 

1985 PA 92

 and was also filed
with the Secretary of State on July 10, 1985.



                                             13
making MCL 600.2922, as amended by 

2005 PA 270

, retroactive given that a previous

amendment of MCL 600.2922 was specifically made retroactive.30 The Legislature was

cognizant of the operative language necessary to apply any particular provision in the

amendatory act retroactively but did not include such language in 

2005 PA 270

.31 The

Court of Appeals improperly held that “MCL 600.2922, as amended by 

2005 PA 270

, . . .

may be applied retroactively from April 1, 2000, the effective date of the last prior

amendment of MCL 600.2922 before its amendment in 2005.”32 Had the Legislature

intended that 

2005 PA 270

 apply retroactively, the Legislature could readily have

provided that “[t]his amendatory act applies to a cause of action arising on or after

April 1, 2000.”



30
   We also note that the most recent amendment of another statute relevant to this case,
MCL 600.2922a, was also given immediate effect. See 

2002 PA 164

. Again, that
indicates that the Legislature by a ⅔ vote expressed an intention that the amendatory act
take effect on the date it was filed, April 11, 2002. However, within the language of

2002 PA 164

 itself the Legislature provided an enacting section that expressly stated that
“[t]his amendatory act applies to a cause of action arising on or after May 1, 2002.”
While we recognize that the Legislature gave 

2002 PA 164

 immediate effect and that the
amendment was filed on April 11, 2002, we also recognize the Legislature made clear
that the amendatory act only applies “to a cause of action arising on or after May 1,
2002.”
31
   As an additional example, during the 2005 session, the Legislature passed a law
providing for limited immunity from civil liability for guardians ad litem. The law
specifically provided, in part, that “[a] guardian ad litem is immune from civil liability for
an injury to a person or damage to property if he or she is acting within the scope of his
or her authority as guardian ad litem.” MCL 691.1407(6), as amended by 

2005 PA 318

.
The law then expressly states that “[t]his subsection applies to actions filed before, on, or
after May 1, 1996.” 

Id.

32
     Johnson I, 

290 Mich App at 272

.



                                             14
         This Court has recognized that “providing a specific, future effective date and

omitting any reference to retroactivity supports a conclusion that a statute should be

applied prospectively only.”33 This is akin to what the 2005 amendment of the wrongful-

death statute does: it provides a specific effective date, that being the date of filing with

the Secretary of State, without the slightest hint of retroactive application.           The

amendment contains no language suggesting that it applies to an antecedent “death as

described in section 2922a.” Therefore, the amended language applies only to injuries

occurring on or after the effective date of 

2005 PA 270

, December 19, 2005.

         Acknowledging the absence of statutory language expressing legislative intent to

apply the statute retroactively, both plaintiffs and the Court of Appeals’ opinion rely on

an “exception” to the presumption that statutes apply prospectively: that “statutes which

operate in furtherance of a remedy or mode of procedure and which neither create new

rights nor destroy, enlarge, or diminish existing rights are generally held to operate

retrospectively unless a contrary legislative intent is manifested.”34 Simply calling a

statute “remedial,” however, is not enough for retroactive application, as we explained in

Lynch:

                [W]e have rejected the notion that a statute significantly affecting a
         party’s substantive rights should be applied retroactively merely because it
         can also be characterized in a sense as “remedial.” In that regard, we agree
         with Chief Justice RILEY’s plurality opinion in White v General Motors
         Corp, that the term “remedial” in this context should only be employed to
         describe legislation that does not affect substantive rights. Otherwise, the
33
 Brewer, 

486 Mich at 56

, citing White v Gen Motors Corp, 

431 Mich 387, 398-399

; 

429 NW2d 576

 (1988) (opinion by RILEY, J.) (quotation marks omitted).
34
     Lynch, 

463 Mich at 584

 (citations and quotation marks omitted).



                                              15
         mere fact that a statute is characterized as remedial is of little value in
         statutory construction. Again, the question is one of legislative intent.[35]

         This exception to the presumption of prospective application for remedial statutes

is inapplicable here because the statutory amendment affects substantive rights. Before

the 2005 amendment of the wrongful-death statute, a plaintiff could not bring an action

under MCL 600.2922 for the death of a nonviable fetus. Nothing in the language of

either MCL 600.2922 or MCL 600.2922a indicated that the death of a nonviable fetus

could be redressed under § 2922. Under MCL 600.2922, as amended by 

2005 PA 270

,

the representative of the fetus’s estate is now able to file a wrongful-death claim on the

basis of the fetus’s death.36 Additionally, MCL 600.2922, as amended by 

2005 PA 270

,

permits plaintiffs to bring claims, as the result of the death of a nonviable fetus, for loss

of consortium and other damages unique to the wrongful-death statute that plaintiffs

would not otherwise be entitled to bring.37        The 2005 amendment thus affects the

substantive rights of those who would harm or kill a nonviable fetus, as well as the

substantive rights of those who bring claims on behalf of a fetus’s estate.



35
     Id. at 585 (emphasis added; citations and quotations marks omitted; formatting altered).
36
   The pregnant woman appears to have a cause of action in her own right under MCL
600.2922a. Under § 2922a, a defendant is liable for damages if his or her acts resulted in
a “miscarriage or stillbirth” by the pregnant woman or “physical injury to or death of” the
fetus. The pregnant woman’s injuries are distinct from those of the fetus, although either
a miscarriage or stillbirth has the same result—death of the fetus.
37
  Sizemore v Smock, 

430 Mich 283, 285

, 296 n 24; 

422 NW2d 666

 (1988) (noting that
common-law negligence principles do not permit recovery for the loss of a child’s society
and companionship, whereas the wrongful-death statute extends a defendant’s liability to
consortium damages).



                                              16
         Given these considerations, we conclude that the 2005 amendment of MCL

600.2922 does not apply retroactively.      The Legislature gave the amendatory act

immediate effect without giving any indication that it intended retroactive effect. The

amendment affects substantive rights and therefore cannot be given retroactive effect on

the basis that it is remedial.38

                        B. VALID CLAIM UNDER MCL 600.2922a

         The Court of Appeals held that the circuit court properly denied defendants’

motion for summary disposition under MCR 2.116(C)(8) because Candice alleged that

she had “specifically requested the performance of a cerclage and defendants consciously

chose to deny the request,” and [t]heir conduct in denying the requested care is

tantamount to an affirmative act.”39 A motion for summary disposition under MCR

2.116(C)(8) tests the legal sufficiency of the complaint.40    All well-pleaded factual

allegations are accepted as true and construed in a light most favorable to the

nonmovant.41 A motion under MCR 2.116(C)(8) may be granted only when the claims




38
   The dissent simply does not address whether the language of 

2005 PA 270

 justifies
retroactive application of MCL 600.2922, as amended by 

2005 PA 270

. Finding that the
legislative history supports the dissent’s position, the dissent chooses to ignore the
dispositive statutory text.
39
     Johnson I, 

290 Mich App at 273

.
40
  Dolan v Continental Airlines/Continental Express, 

454 Mich 373, 380

; 

563 NW2d 23

(1997).
41
     Wade v Dep’t of Corrections, 

439 Mich 158, 162-163

; 

483 NW2d 26

 (1992).



                                           17
alleged “are so clearly unenforceable as a matter of law that no factual development

could possibly justify recovery.”42

          MCL 600.2922a provides:

                  (1) 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.

                   (2) This section does not apply to any of the following:

                   (a) An act committed by the pregnant individual.

                 (b) A medical procedure performed by a physician or other licensed
          health professional within the scope of his or her practice and with the
          pregnant individual’s consent or the consent of an individual who may
          lawfully provide consent on her behalf or without consent as necessitated
          by a medical emergency.

                (c) The lawful dispensation, administration, or prescription of
          medication.

                 (3) This section does not prohibit a civil action under any other
          applicable law.

                 (4) As used in this section, “physician or other licensed health
          professional” means a person licensed under article 15 of the public health
          code, 

1978 PA 368

, MCL 333.16101 to 333.18838.

          We must give effect to the Legislature’s intent, and the best indicator of the

Legislature’s intent is the words used.43 We must give every word its plain and ordinary




42
     Id. at 163.
43
     Wesche v Mecosta Co Rd Comm, 

480 Mich 75, 83

; 

746 NW2d 847

 (2008).



                                                 18
meaning, unless otherwise defined, and may rely on dictionary definitions.44 If the

language is plain and unambiguous, then judicial construction is neither necessary nor

permitted.45

          MCL 600.2922a(1) provides that a person “who commits a wrongful or negligent

act” against a pregnant woman 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 term “act” commonly means “anything done, being done, or to be done[.]”46 The

phrases “wrongful act” and “negligent act” also have plain legal connotations. According

to Black’s Law Dictionary, the phrase “wrongful act” is synonymous with the phrase

“wrongful conduct,” which means “[a]n act taken in violation of a legal duty; an act that

that unjustly infringes on another’s rights.”47       And Black’s Law Dictionary defines

“negligent act” as an “act that creates an unreasonable risk of harm to another.”48

Further, Black’s Law Dictionary compares the phrase, “active negligence,” with the

phrase “passive negligence.”         The former means “[n]egligence resulting from an

affirmative or positive act, such as driving through a barrier.”49 On the other hand,

44
   Krohn v Home-Owners Ins Co, 

490 Mich 145, 156-157

; 

802 NW2d 281

 (2011), citing
Veenstra v Washtenaw Country Club, 

466 Mich 155, 160

; 

645 NW2d 643

 (2002), in turn
citing MCL 8.3a.
45
     Griffith v State Farm Mut Auto Ins Co, 

472 Mich 521, 526

; 

697 NW2d 895

 (2005).
46
     Random House Webster’s College Dictionary (2001).
47
     Black’s Law Dictionary (9th ed), pp 337, 1751.
48
     Id. at 28.
49
     Id. at 1134 (emphasis added).



                                             19
“passive negligence” means “[n]egligence resulting from a person’s failure or omission

in acting, such as failing to remove hazardous conditions from public property.”50 The

Legislature clearly intended to impose liability for affirmative or positive acts under

MCL 600.2922a(1).

         In comparison, it is very clear that the Legislature did not intend to impose

liability for omissions, something it can and has done in other statutes.51 The Legislature

did not even include the more expansive terms “neglect” and “fault of another” that it

included in MCL 600.2922(1), which permit liability on the basis of omissions. The

Legislature’s decision to exclude omissions from MCL 600.2922a indicates that it did not

intend to attach liability to omissions that cause prenatal death or injury. To read the

phrase “wrongful or negligent act” as including omissions would expand liability under

MCL 600.2922a beyond the Legislature’s intent.

         In addition, MCL 600.2922a exempts health-care professionals from liability for

medical procedures performed either with consent or under emergency circumstances,

and from liability for lawfully dispensing and prescribing medication.         It would be



50
     Id. at 1135.
51
   The Legislature has specifically addressed liability for acts and omissions in numerous
statutes. See, e.g., MCL 3.751, art 7, § a(9) (concerning liability for acts or omissions for
those involved in the transport of radioactive waste); MCL 41.711a (eliminating liability
for good-faith acts or omissions of emergency personal when rendering care at the scene
of an emergency); MCL 52.205(7) (concerning liability for acts or omissions of medical
examiners); MCL 333.18826 (concerning liability for acts or omissions of veterinarians
and veterinary technicians); MCL 600.2962 (concerning liability for acts or omissions of
certified public accountants); MCL 600.5838a(2) (providing that a medical malpractice
action generally accrues at time of the act or omission claimed).



                                             20
incongruous to read the statute as providing liability for negligent omissions when it

specifically exempts health-care professionals from liability for their affirmative acts of

commission performed within the scope of their practice under MCL 600.2922a(2)(b).

Because the statute specifically requires a wrongful or negligent act, a wrongful or

negligent omission does not impose liability under the statute.

          In People v Thomas,52 this Court similarly distinguished between the omission of a

duty and an affirmative act. In Thomas, a police officer was charged with crimes related

to his falsification of a police report, including common-law obstruction of justice, MCL

750.505. The question presented was whether the trial court erred by dismissing the

obstruction of justice charge because the alleged conduct fell within the statutory

prohibition of failing to uphold the law, MCL 752.11.53 The relevant statute, MCL

752.11 provided:

                 Any public official, appointed or elected, who is responsible for
          enforcing or upholding any law of this state and who wilfully and
          knowingly fails to uphold or enforce the law with the result that any
          person’s legal rights are denied is guilty of a misdemeanor.

          Just as in this case, the Thomas Court found it necessary when reading the relevant

statute to “distinguish between the omission of a duty and affirmative acts.”54 We

concluded that MCL 752.11 “proscribes the wilful and knowing failure to uphold the




52
     People v Thomas, 

438 Mich 448

; 

475 NW2d 288

 (1991).
53
     

Id. at 450-451

.
54
     

Id. at 454

.



                                              21
law, acts of omission.”55 We also unanimously concluded that falsifying a police report

is clearly an act of commission, not an act of omission.56

          Under the analytical framework laid out in Thomas, even assuming that defendant

“refused” to perform a procedure,57 his refusal still could not be characterized as anything

other than “wilful and knowing failure to [do something],” language which this Court in

Thomas unequivocally construed as an act of omission.58

          Moreover, we cannot accept the dissent’s conclusion “that an active decision-

making process clearly involves an affirmative act.”59 This conclusion morphs all willful

omissions into commissions. And even assuming that Pastoriza did refuse to perform a

cerclage, his words of refusal did not create any risk of harm. Rather, as plaintiffs claim,

it was Pastoriza’s failure to perform a medical procedure that caused the harm, and this

alleged failure cannot be reasonably characterized as an affirmative act. The dissent’s

conclusion that Pastoriza committed an “act” when he “refused to act” is untenable. A

refusal to act is to abstain from action and, therefore, cannot reasonably be considered an

act. In sum, the dissent distorts the express language of MCL 600.2922a, obliterates the

55
     

Id. at 455

 (emphasis added).
56
     

Id.

 (CAVANAGH, C.J.); 

id. at 458-459

 (BOYLE, J., concurring).
57
   Plaintiffs’ original complaint alleges that Candice “asked [Pastoriza] to place a
cerclage, but he did not do so.” It also alleges that Pastoriza “fail[ed] to perform a
cerclage,” but it says nothing about his “refusing” to perform a cerclage. Indeed, it was
not until plaintiffs’ third amended complaint, filed after the Court of Appeals rendered its
decision, that they alleged that Pastoriza “refused” to perform the procedure.
58
     

Id. at 455

.
59
     Post at 4.



                                             22
long-recognized distinction between the omission of a duty and affirmative acts, and

improperly equates saying “no” with an affirmative act.

         Viewing the pleadings in a light most favorable to plaintiff and accepting each and

every factual allegation as true, Pastoriza’s act was, at most, an omission. Consequently,

plaintiffs have failed to state a claim under MCL 600.2922a because defendants did not

commit a “wrongful or negligent act.”         Therefore, the trial court erred by denying

summary disposition to defendants.

                                     VI. CONCLUSION

         In sum, we hold that the 2005 amendment of MCL 600.2922(1) does not have

retroactive application because (1) the Legislature failed to give any indication that

retroactive application was intended, and (2) the amendment affects substantive rights

and cannot be given retroactive application on the ground that it is remedial. Therefore,

plaintiffs may not proceed under MCL 600.2922. Further, we hold that the text of MCL

600.2922a provides liability only for affirmative acts and does not encompass omissions.

In this case, plaintiffs have only alleged an omission or failure to act by defendants;

therefore, plaintiffs have failed to state a claim under MCL 600.2922a. We therefore

reverse the judgment of the Court of Appeals and remand the case to the trial court for

the entry of partial summary disposition in favor of defendants.60

                                                         Brian K. Zahra
                                                         Robert P. Young, Jr.
                                                         Stephen J. Markman
                                                         Mary Beth Kelly
60
     Again, this opinion does not affect Candice’s separate medical malpractice claim.



                                              23
                           STATE OF MICHIGAN

                                     SUPREME COURT


CANDICE JOHNSON and BABY
JOHNSON,

             Plaintiffs-Appellees,

v                                                          No. 142127

RAJAN PASTORIZA, M.D., and RAJAN
PASTORIZA, M.D., P.L.C., d/b/a
WOMEN’S FIRST HEALTH SERVICES,

             Defendants-Appellants.


CAVANAGH, J. (concurring).
      I concur with the majority’s result only. I write separately to emphasize that,

because the majority concludes that MCL 600.2922(1), as amended by 

2005 PA 270

,

does not apply retroactively, the majority opinion does not address whether a plaintiff

may base a claim for the wrongful death of a nonviable fetus on a defendant’s omission

occurring after the effective date of the amendatory act. As the majority notes, however,

the terms “neglect” and “fault of another” in MCL 600.2922(1) “permit liability on the

basis of omissions.” Ante at 20. Accordingly, it appears that the majority’s holding is

applicable only to claims for the wrongful death of a nonviable fetus arising out of

omissions occurring before December 19, 2005.


                                                      Michael F. Cavanagh
                                                      Marilyn Kelly
                            STATE OF MICHIGAN

                                      SUPREME COURT


CANDICE JOHNSON and BABY
JOHNSON,

              Plaintiffs-Appellees,

v                                                          No. 142127

RAJAN PASTORIZA, M.D., and RAJAN
PASTORIZA, M.D., P.L.C., d/b/a
WOMEN’S FIRST HEALTH SERVICES,

              Defendants-Appellants.


HATHAWAY, J. (dissenting).
       At issue is the extent of liability imposed under two statutes, MCL 600.2922a and

MCL 600.2922, for wrongful or negligent acts against a pregnant woman that result in

injuries to or the death of a fetus.     The majority holds that plaintiffs’ claims for

negligence brought under MCL 600.2922a, which provides a cause of action for injuries

to or the death of a fetus, fail as a matter of law. The majority believes that MCL

600.2922a only imposes liability for negligent conduct when the conduct complained of

consists of an “affirmative” act rather than an “omission.” The majority further holds

that claims brought under the wrongful-death statute, MCL 600.2922, as amended by

2005 PA 270

, fail because the majority believes that the 2005 amendment of the statute,

incorporating the death of a fetus, is not retroactive. Because I find both of these

conclusions erroneous, I respectfully dissent.
       The underlying claims in this case involve allegations of negligence resulting in

the death of plaintiff Baby Johnson,1 as well as injuries to his mother, plaintiff Candice

Johnson. Ms. Johnson had a history of miscarriages resulting from a condition known as

an incompetent cervix. Treatment for this condition includes placement of a cerclage,

which involves suturing the lower end of the uterus to strengthen it and prevent

miscarriages. Ms. Johnson had multiple previous pregnancies, and in each pregnancy in

which a cerclage was not placed, she miscarried; however, in her last three pregnancies, a

cerclage was used, and she was able to carry her children to full-term. Defendant Rajan

Pastoriza, M.D.,2 was briefly involved in Ms. Johnson’s last pregnancy and had removed

the cerclage before the successful birth of her last full-term child.

       Ms. Johnson became pregnant with Baby Johnson in June 2005 and chose

defendant as her obstetrician. In September 2005, Ms. Johnson began bleeding vaginally

and went to Foote Hospital, where she was advised to follow up with defendant.

Defendant failed to place a cerclage during that follow-up visit. Ms. Johnson continued

treatment with defendant as instructed, but he never placed a cerclage, despite ultrasound

findings that Baby Johnson was the appropriate gestational age for placement of a



1
 This action was originally filed in the name of two plaintiffs, Baby Johnson and
Candice Johnson. The complaint was subsequently amended, identifying the decedent,
Baby Johnson, as Ordane Michael Johnson, and adding a count on behalf of the estate of
Ordane Michael Johnson. To avoid confusion, I refer to the decedent as Baby Johnson.
2
  Plaintiffs brought suit against Dr. Rajan Pastoriza, M.D., in his individual capacity and
against his professional corporation. Plaintiffs’ allegations center on the actions of Dr.
Pastoriza in his individual capacity. Accordingly, I use the singular term “defendant”
throughout this opinion for ease of reference.



                                              2
cerclage. On October 19, 2005, Ms. Johnson complained to defendant that she felt

preterm labor-like cramping. On this occasion, she specifically asked defendant to place

a cerclage, but he refused to do so.

       On November 1, 2005, Ms. Johnson went into premature labor.               She was

transferred to Sparrow Hospital where an emergency cerclage was placed. However, the

cerclage failed to prevent the miscarriage. Baby Johnson was delivered at 20 weeks’

gestation and did not survive. Plaintiffs alleged that the cerclage was placed too late to

be effective in preventing the miscarriage and that Baby Johnson died as a result of

defendant’s refusal to place the cerclage at an earlier time. Ms. Johnson also alleged that

the failed emergency cerclage caused a significant and permanent cervical tear that will

prevent her from having any more children.

       Only counts II and III of plaintiffs’ third amended complaint are at issue in this

appeal.3 Count II, brought by Ms. Johnson, is based on MCL 600.2922a, which provides

for liability for injuries to or the death of a fetus caused by a wrongful or negligent act

against a pregnant individual. Count III, on behalf of Baby Johnson, was brought under

MCL 600.2922a and the wrongful-death statute, MCL 600.2922. The trial court denied

defendant’s motions for summary disposition, and the Court of Appeals affirmed. I

believe that the trial court and the Court of Appeals reached the correct result with

respect to both of these issues.

3
 Count I, alleging medical malpractice for Ms. Johnson’s injuries, is not at issue in this
appeal. Additionally, the majority’s opinion does not address Ms. Johnson’s claim for
emotional-distress damages. See ante at 3 n 2. The Court of Appeals ruled in favor of
Ms. Johnson on the issue of whether she can recover emotional-distress damages. The
majority opinion does not affect that ruling.



                                             3
       With regard to the claims brought under MCL 600.2922a, the majority opines that

those claims fail as a matter of law because it believes that this statute only imposes

liability for negligent or wrongful conduct consisting of an affirmative act, rather than an

omission. I disagree with the majority’s conclusion that the conduct complained of in

this case was an omission. Instead, defendant’s conduct involved affirmative acts. As

such, it is unnecessary to reach the issue whether liability can be based on an omission

under this statute.

       MCL 600.2922a(1) provides in relevant part:

               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.

       According to the plain language of this subsection, the relevant inquiry is whether

a person has committed a wrongful or negligent act against a pregnant individual. This

case involves conduct, consisting of medical treatment by a physician, which is alleged to

be “wrongful” or “negligent.” The specific allegation is that Ms. Johnson needed a

cerclage, defendant was aware of her need for the procedure, and he made a conscious

decision not to perform that treatment. On one occasion, after having been asked to place

the cerclage, defendant specifically refused to perform the procedure. Thus, the salient

question is whether a defendant’s active decision-making process in refusing to perform a

necessary and specifically requested medical procedure is properly characterized as an

omission or whether it is, in fact, an affirmative act. I believe that an active decision-

making process clearly involves an affirmative act.




                                             4
         To hold otherwise ignores the language of the statute and the obvious intent of the

Legislature. MCL 600.2922a imposes liability when a person “commits a wrongful or

negligent act . . . .” This defendant committed “an act” when he consciously and actively

refused to perform the procedure. An active, conscious decision is not an omission.

Thus, I agree with the Court of Appeals’ conclusion that “[i]t is improper in this instance

to classify defendants’ alleged conduct as an omission” and that “conduct in denying the

requested care is tantamount to an affirmative act.”4           Accordingly, I believe that

plaintiffs’ claims under MCL 600.2922a may proceed.

         The majority also addresses the claims brought under the wrongful-death statute

on behalf of the estate of Baby Johnson. The relevant portion of the wrongful-death

statute, MCL 600.2922(1), as amended by 

2005 PA 270

, currently provides in pertinent

part:

                Whenever the death of a person, injuries resulting in death, or death
         as described in section 2922a shall be caused by wrongful act, neglect, or
         fault of another, and the act, neglect, or fault is such as would, if death had
         not ensued, have entitled the party injured to maintain an action and recover
         damages, the person who or the corporation that would have been liable, if
         death had not ensued, shall be liable to an action for damages,
         notwithstanding the death of the person injured or death as described in
         section 2922a, and although the death was caused under circumstances that
         constitute a felony. [Emphasis added.]

         At the time of the alleged negligence, MCL 600.2922(1) did not include the

language regarding “death as described in section 2922a,” which is now twice cross-

referenced in this subsection.        This amendatory language was added in 2005 to


4
    Johnson v Pastoriza, 

290 Mich App 260, 273

; 

810 NW2d 42

 (2010).



                                               5
specifically incorporate fetal deaths into the purview of actionable claims that can be

pursued under the wrongful-death statute. The effective date of the amendatory act was

in December 2005, the month following the death of Baby Johnson. The majority opines

that because the negligent acts complained of occurred before the effective date of the

amendatory act, the claims for Baby Johnson must fail because the amendatory act was

not retroactive. I disagree. I believe that the Court of Appeals correctly analyzed this

issue and properly found that the amended version of the wrongful-death statute applies

retroactively.

       To determine whether a statute should be applied prospectively or retroactively,

the primary rule is that the intent of the Legislature controls, and all other rules of

construction are subservient to this rule. Frank W Lynch & Co v Flex Technologies, Inc,

463 Mich 578, 583

; 

624 NW2d 180

 (2001). Generally, statutes are presumed to operate

prospectively unless a contrary intent is expressed. 

Id.

 However, there is a long-

recognized exception when a statute is deemed remedial or procedural in nature.

Hansen-Snyder Co v Gen Motors Corp, 

371 Mich 480, 484-485

; 

124 NW2d 286

 (1963).

“Statutes which operate in furtherance of a remedy already existing and which neither

create new rights nor destroy existing rights are held to operate retrospectively, unless a

contrary legislative intention is manifested.” Selk v Detroit Plastic Prod, 

419 Mich 1, 10

;

345 NW2d 184

 (1984).

       The 2005 amendment of MCL 600.2922(1) incorporated fetal deaths, as described

in MCL 600.2922a, into the purview of the wrongful-death statute. By amending MCL

600.2922(1), the Legislature did not create a new right because the right to bring a cause

of action based on wrongful or negligent acts that resulted in the death of a fetus already


                                            6
existed under MCL 600.2922a. This clearly delineated statutory right contained in MCL

600.2922a was seemingly disregarded or at least overlooked in McClain v Univ of Mich

Bd of Regents, 

256 Mich App 492

; 

665 NW2d 484

 (2003). McClain held that an action

for wrongful death could not be brought on behalf of a nonviable fetus. The Court

opined that because a nonviable fetus is not a “person” within the meaning of the

wrongful-death statute, such an action could not proceed. 

Id. at 495

. However, McClain

failed to address or acknowledge the rights embodied in MCL 600.2922a, which permits

a cause of action for injuries to or the death of a fetus irrespective of whether the fetus

was viable. In doing so, McClain effectively abrogated the rights given to nonviable

fetuses in MCL 600.2922a. Thus, it appears that the purpose of the 2005 amendment was

merely to clarify the legislative intent that a cause of action could be brought on behalf of

a nonviable fetus.

       This conclusion is buttressed by the following legislative history5 from the House

Fiscal Agency’s analysis of the amendatory act:

              Prior to 1998, the Michigan law did not specifically speak to the
       right of an individual to sue if the death in question was that of the unborn.
       Historically, lawsuits through the years went back and forth, sometimes
       applying regardless of gestational age, then more recently, being limited to
       instances in which the fetus was viable. Legislation in 1998 sought to settle
       the question by establishing both civil liability and criminal penalties for
       conduct against a pregnant woman that caused a miscarriage or stillbirth or
       that caused physical injury to the embryo or fetus (Public Act 211 – civil
       and Public Act 238 – criminal).



5
  An analysis of a statute’s legislative history is an important tool in ascertaining
legislative intent. Bush v Shabahang, 

484 Mich 156, 168

; 

772 NW2d 272

 (2009); In re
MCI Telecom Complaint, 

460 Mich 396, 415

; 

596 NW2d 164

 (1999).


                                             7
                The language establishing the civil penalty was placed in a separate
         section (MCL 600.2922a) from the existing wrongful death provision
         (MCL 600.2922) as a compromise between pro-life and pro-choice
         advocates. Since Section 2922 specifies a right to recover damages for the
         wrongful death of a “person,” pro-choice advocates voiced a concern that
         including conduct against a pregnant woman in that section would, by
         association, attach “personhood” to a fetus or embryo and subsequently
         could be used to attack laws protecting reproductive rights.

                Many thought the 1998 legislation was clear, but a 2000 Oakland
         County case proved otherwise. The Oakland County Circuit Court ruled
         that a man who had killed his pregnant wife could not be charged with the
         death of his wife’s embryo because his actions did not “technically” result
         in either a miscarriage or a stillbirth as the embryo was not expelled from
         the wife’s body. As a result, Public Act 2 of 2001 and Public Act 164 of
         2002 were enacted to amend the Michigan Penal Code and the wrongful
         death statute, respectively, to extend the criminal and civil penalties to
         conduct causing the death of an embryo or fetus. It was believed at the
         time that Public Act 164 closed the loophole in the wrongful death statute
         and so would apply to all situations in which conduct toward a pregnant
         woman resulted in the death of the embryo or fetus she carried.

                However, in subsequent civil actions, courts around the state have
         apparently only looked at Section 2922 of the wrongful death statute and
         not Section 2922a. Most notably, in McClain v University of Michigan
         Board of Regents, 

256 Mich App 492

 (2003), the court held that “under
         Michigan law, an action for wrongful death, MCL 600.2922, cannot be
         brought on behalf of a nonviable fetus, because a nonviable fetus is not a
         ‘person’ within the meaning of the wrongful-death act.”

                Once again, it has become clear that legislation is needed to clarify
         the legislature’s intent of providing a cause of action for the wrongful death
         of not only a person, but also an embryo or fetus.[6]

         These comments make clear that this amendment was intended to clarify that

claims for the wrongful death of a nonviable fetus may be pursued under the wrongful-

death statute. The amendatory act did not establish any new rights because the right to


6
    House Legislative Analysis, HB 4777, October 24, 2005, p 1 (emphasis added).



                                               8
pursue an action for the death of a fetus already existed under MCL 600.2922a. The

2005 amendment of the wrongful-death statute was only adopted to resolve the confusion

created by McClain regarding whether a claim may be brought for the death of a

nonviable fetus.

         Thus, I agree with the Court of Appeals’ conclusion that “it is clear that MCL

600.2922 was amended to add the language ‘or death as described in section 2922a’ in

order to clarify both MCL 600.2922 and MCL 600.2922a and to resolve a controversy

regarding their meaning.”7      Under these circumstances, I am persuaded that the

Legislature intended the amended version of the wrongful-death statute to apply

retroactively. As such, Baby Johnson’s estate, as a matter of law, is entitled to proceed

with its wrongful-death claim. Whether plaintiffs’ allegations will ultimately prevail on

the merits involves issues to be resolved by a jury.

         Therefore, I believe that the trial court’s denial of defendant’s motions for

summary disposition was proper. I would affirm the Court of Appeals. Accordingly, I

dissent.


                                                       Diane M. Hathaway

7 Johnson, 290

 Mich App at 271.



                                             9