Court of Appeals clarifies interaction of wrongful death act and statute allowing suit for injury to fetus

The Estate of Simpson v. Pickens, et al., involved a wrongful death claim brought by the family of a non-viable fetus after a premature delivery and death.  The family of the fetus argued that the mother's physician negligently failed to perform a cerclage, despite knowing that the mother had lost two previous pregnancies due to cervical insufficiency.   At the urging of the Defendants' attorneys, the trial judge granted summary disposition against the Estate, ruling that a wrongful death malpractice action could not be based on a negligent omission.  The judge concluded that absent a claimed negligent "ACT" by the doctor, no claim could be pursued by statute.

The Court of Appeals rejected this analysis, finding it inconsistent with the statutory language and normal statutory interpretation.  The judges noted that the recent amendatory act granted the right to sue for injury to a non-viable fetus or for its death, and that in either case the death claim must be pursued under a particular tort theory.  In the instant case, the alleged negligence was of a medical provider, so the medical malpractice rules applied--and a death claim could be pursued under the Wrongful Death Act if an injury claim would be sustainable.  The judges unanimously rejected the strained statutory interpretation sought by the insurance attorneys and adopted by the Circuit Court judge which would distinguish negligent actions from negligent inaction.