Since 2005, Michigan law imposes liability for negligence causing the death of a non-viable fetus; but according to the Michigan Supreme Court, that was not the case when Mrs. Johnson's obstetrician refused to perform a procedure that could have prevented the miscarriage of Baby Johnson. In Johnson v. Pastoriza the Court held that the 'fetus wrongful death act''the only act that applied to death of a fetus at that time, requires an affirmative act to trigger liability, not just a negligent omission. The refusal to perform a medical procedure was not an affirmative act. Further, the 2005 amendment adding death of a fetus to the scope of the 'universal wrongful death act', where negligence does trigger liability, was not retroactive. Joined by three other justices, Justice Zahra explained that generally statutes apply prospectively, in the absence of language to the contrary. And the exception to that rule for 'remedial' statutes, where retroactive effect would be presumed, does not apply to 'remedial' statutes that affect substantive rights. Here, the 2005 amendment to the universal statute expanded the substantive rights of plaintiffs upon death of a nonviable fetus, and contains no language expressing a legislative intent that it apply retroactively. It therefore applies only prospectively.
After her doctor refused to perform a procedure that would have allowed her to carry her pregnancy to term, the plaintiff miscarried her child in her second term. She then brought several negligence and medical malpractice actions against the doctor for the wrongful death of her fetus. Following the denial of defendant's motion for summary disposition, the Michigan Court of Appeals on interlocutory review held that: (1) the universal wrongful-death statute applied in this case because a 2005 amendment that made the statute applicable to nonviable fetuses was retroactive, and (2) the defendant's refusal to perform a procedure constituted an affirmative act under the wrongful-death statute that specifically applied to nonviable fetuses. The Michigan Supreme Court disagreed. For the reasons explained above, the Court held that the universal wrongful-death act did not apply before 2005, and the doctor's failure to perform the necessary procedure was an omission, not an affirmative act. The Michigan Supreme Court reversed the Court of Appeals and remanded the case to the circuit court for entry of summary disposition in favor of the defendant.
Justice Cavanagh, joined by Justice Marilyn Kelly, concurred with the majority's result only. He wrote separately to emphasize that the majority's opinion regarding a failure to act only applies to claims for the wrongful death of a nonviable fetus that arise out of instances prior to passage of the 2005 amendment.
In a lone dissent, Justice Hathaway said she would have the 2005 amendment apply retroactively. Moreover, she thought that the doctor's 'active, conscious decision' was not an omission, but rather that the doctor committed an affirmative act when he 'consciously and actively refused to perform the procedure.' She would have affirmed the Court of Appeals and allowed the case to proceed.