Michigan Court of Appeals Confirms Loss-of-Services Damages in Infant Wrongful Death Case

Michigan Court of Appeals Confirms Loss-of-Services Damages in Infant Wrongful Death Case

A recent decision by the Michigan Court of Appeals in Estate of Kenneth Pionk III v. VHS Harper-Hutzel Hospital Inc. has renewed attention on the types of damages that can be recovered under Michigan’s Wrongful Death Act—especially in heartbreaking cases involving infant decedents.

Case Background

In March 2017, Kenneth Pionk III was born prematurely and, tragically, passed away a few days later due to neonatal sepsis. His mother, acting as personal representative of his estate, filed a medical malpractice–based wrongful death suit, alleging that defendants’ negligence led to Kenneth’s death. Among other damages, she sought lost earning capacity and loss-of-household services.

Defendants moved for partial summary disposition, arguing that both categories of damages should be dismissed. The trial court denied the motion. The appellate court then granted leave and considered two central questions:

1. Whether lost earning capacity (future earnings) is available under the Wrongful Death Act (WDA)

2. Whether loss-of-services damages remain recoverable under the WDA, even after recent statutory and case law changes.

Lost Earning Capacity: Not Recoverable

Following the Michigan Supreme Court’s decision in Daher v. Prime Healthcare, the Court of Appeals affirmed that lost future earnings or earning capacity claims are no longer permissible under Michigan’s Wrongful Death Act. The appellate court held that the trial court erred by refusing to dismiss the plaintiff’s claim for this category of damages. 

Loss-of-Services Damages: Still Available

The more novel and significant ruling is the Court’s decision that loss-of-household services damages remain available under the WDA—despite the legislative and judicial changes that have narrowed other categories of recovery.

• The court emphasized that loss-of-services damages have been historically recoverable under Michigan's death acts since the 19th century and under the combined WDA since 1939.

• Even though the Legislature removed the term “pecuniary injury” from the statute in 1971 and inserted a clause allowing “society and companionship” damages, the court reasoned that those changes did not eliminate the historically recognized loss-of-services recovery. 

• The court declined to bar the loss-of-services claim as a matter of law, even in a case involving an infant who died days after birth, though defendants challenged the damages as too speculative to calculate.

• In particular, the court allowed that even though the expert report addressed loss-of-services only for the period after the decedent would have turned 18, the request was valid at summary disposition. 

Thus, while the plaintiff cannot pursue a claim for lost future earnings, she may still ask a jury to award compensation for the value of services her child might have provided during his lifetime.

Implications for Wrongful Death Litigation in Michigan

This ruling carries important consequences for personal injury and medical malpractice wrongful death cases, especially involving young children or infants:

• Narrowing of recoverable damages: The decision reaffirms that the WDA’s scope has been limited—future earnings are off the table, leaving only statutory and historically recognized damages.

• Salvaging loss-of-services claims: For cases where the decedent was too young to have employment or a track record of earning, loss-of-services becomes a critical remaining avenue of economic recovery.

• Speculation challenges: Defendants will still challenge loss-of-services calculations as speculative or too remote, particularly when dealing with infants. But Pionk shows that the appellate court will allow such claims to proceed to jury consideration, even at early stages.

• Strategic drafting and expert proof: Plaintiffs’ counsel must carefully craft expert opinions and factual evidence to support service valuations—even for periods far in the future.

• Precedential traction: This case may influence how other appellate courts and trial courts interpret the WDA in similar contexts.