Plaintiff, the personal representative of the Estate of Kenneth Pionk, III, brought a medical-malpractice action alleging that defendants’ negligence caused Kenneth Pionk, III, to die a few days after he was born. Plaintiff claimed, in relevant part, that Pionk’s death caused her to suffer lost-earning-capacity damages and loss-of-services damages. Defendants moved for partial summary disposition, asking the trial court to dismiss plaintiff’s complaint to the extent that it requested these damages. The trial court denied defendants’ motion, and defendants appealed.
The Court of Appeals of Michigan stated in its July 17, 2025 decision: “The parties on appeal agree that lost-earning-capacity damages are no longer available under the wrongful death act (WDA), MCL 600.2922, following our Supreme Court’s decision in Daher v Prime Healthcare Servs-Garden City, LLC, ––– Mich ––––, ––––; ––– N.W.3d ––––, 2024 WL 3587935 (2024) (Docket No. 165377). The trial court thus erred by refusing to dismiss plaintiff’s complaint to the extent that it requested lost-earning-capacity damages. But Daher did not resolve whether loss-of-services damages remain available under the WDA, and we hold that such damages do indeed remain available under the act. Defendants contend that plaintiff’s request for loss-of-services damages in this case is too speculative to go to a jury because plaintiff only requested loss-of-services damages for the period after Pionk would have turned 18, and there are no facts from which such damages can be reasonably extrapolated given that Pionk was only a few days old when he passed away. We hold that, in cases like this one, plaintiff’s claim for loss-of-services damages is not barred as a matter of law, and her request for such damages can proceed at this early stage in the litigation. The trial court’s ruling denying defendants’ motion for partial summary disposition is therefore affirmed in part and reversed in part.”
The Michigan appellate court reasoned: “After Michigan’s death act was combined with the survival act in 1939, the newly-combined WDA continued to permit damages for “pecuniary injury.” 1939 PA 297. See also Daher, ––– Mich at –––– – –––– n 12, ––– N.W.3d ––––; slip op. at 9-10 n 12. Our Supreme Court thereafter repeatedly reaffirmed that damages for loss of household services were recoverable under the WDA as part of damages for “pecuniary injury.” See, e.g., In re Olney’s Estate, 309 Mich. 65, 84, 14 N.W.2d 574 (1944) … As discussed above, the Legislature in 1971 removed the phrase “pecuniary injury” from the WDA and specified that damages under the act now “includ[ed]” damages “for the loss of the society and companionship of the deceased.” MCL 600.2922(2), as amended by 1971 PA 65 … by concluding that loss-of-services damages remain available under the WDA following the 1971 amendments, we are not expanding the types of damages available under the act but merely concluding that the 1971 amendment did not disallow damages that were historically available under the act. Such an interpretation is consistent with the “unique facts and the extensive statutory history of the WDA and the caselaw interpreting it.””
“The historical treatment of loss-of-services damages under the WDA also makes the question presented in this case materially different from the one presented in Daher. As Daher explained, lost-earning-capacity damages were only available in actions brought under the survival act, while loss-of-services damages were historically available under Michigan’s death act” … Given our Supreme Court’s repeated explanation for the removal of the phrase “pecuniary injury” and the fact that “including” is generally not a term of limitation, we conclude that the Legislature did not intend to make loss-of-services damages unavailable under the WDA when it amended the WDA’s damages provision in 1971. We therefore hold that loss-of-services damages remain available under the WDA following Daher, as they have been since Michigan’s death act was enacted in 1848.”
“We further hold that a plaintiff in a WDA action involving an infant-decedent is not barred as a matter of law from recovering loss-of-services damages for the time after the decedent would have reached the age of 18.”
Source Demott III v. VHS Harper-Hutzel Hospital, Inc., No. 369500.
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