Background Facts
Court Denies Wrongful Death Claim For 13-Day-Old Baby: Plaintiff gave birth to Maryjane on December 1, 2016, at Beaumont Hospital Royal Oak, preterm at 31 weeks. Maryjane weighed only two pounds, 5.1 ounces. Maryjane had hypoglycemia and difficulty feeding, so human milk fortifier (HMF) was added to breast milk, but she began spitting up. She was taken off HMF, but the hypoglycemia returned, so it was added again. Then she began having episodes of emesis (vomiting) and her abdomen became distended.
On the morning of December 12, 2016, she had “large ‘coffee ground’ ” emesis, was made “NPO” (nothing by mouth), an orogastric tube was placed, and abdominal x-rays were taken. The findings showed a possible developing bowel obstruction. She continued to have emesis, abdominal distention, and skin mottling throughout the day. X-rays were taken at 4:10 p.m. and 8:55 p.m., both indicating developing bowel obstruction or early NEC (necrotizing enterocolitis).
The next morning, December 13, 2016, an x-ray taken at 7:45 a.m. still demonstrated developing obstruction or NEC. At 10:40 a.m., an upper gastrointestinal (GI) study was performed and revealed a malrotation of the intestines with mid-gut volvulus. Pediatric surgery was consulted, and an emergency surgery was performed to twist Maryjane’s bowel into the proper position, but ischemic and necrotic bowel were encountered, and surgery was scheduled for the next day. During the surgery on December 14, 2016, it was discovered that there was no viable small bowel remaining, and there was nothing left to do. Maryjane died that day.
Plaintiff, as personal representative of the estate of Maryjane Pearl Sutherland, sued the hospital for wrongful death and included a claim for loss of earning capacity damages, which the trial court denied. The Plaintiff appealed.
The State of Michigan Court of Appeals held in its unpublished opinion dated January 26, 2023: “Maryjane was born
premature, and lived only 13 days. Thus, there is no way to know anything about her “interests, aspirations, personality, strengths and weaknesses, academic performance, or any other characteristic that could be extrapolated.” Id. at _; slip op at 9. Plaintiff offered the expert testimony of economist Nitin V. Paranjpe, Ph.D. as evidence to calculate Maryjane’s loss of earning potential. However, his calculations were based on “the average earnings of Caucasian women with a high school level of education” and “the average earnings of Caucasian women with an associates level of education.” When Paranjpe was asked at his deposition whether his calculations were specific to Maryjane, he testified that he considered Maryjane’s birthday, gender, and race, and the education level of plaintiff. Besides the information in the complaint and in the parents’ depositions, he was not familiar with Maryjane’s prematurity or survivability. Thus, there was no evidence in the record to permit a reasonable basis for personalizing an estimation specific to Maryjane. Therefore, ultimately, the trial court did not abuse its discretion when it granted defendants’ motion in limine to preclude plaintiff’s claims for Maryjane’s loss of earning capacity because as an infant decedent, the claim was too speculative.”
Source Sutherland v. Klarr, M.D., No. 360059.
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