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Kassama v. Magat2/28/2001
In this "wrongful life" case, an infant plaintiff asserts that she would have been better off if she had never been born and that she should have been aborted. This presents a question of first impression in Maryland, viz:
May a doctor whose negligence caused a mother not to abort her pregnancy be successfully sued for "wrongful life" by a genetically defective child born as a consequence of the doctor's negligence?
We hold that Maryland does not recognize a cause of action for wrongful life and, accordingly, answer that question in the negative.
Other issues that arose out of a companion "wrongful birth" claim must also be decided.
I. PROCEDURAL AND FACTUAL BACKGROUND
On September 19, 1995, a daughter, Ibrion Fatuo Kassama, was born to Millicent Kassama. The delivery was uneventful; unfortunately, however, Ibrion was born with Down's Syndrome. During her pregnancy, Mrs. Kassama was treated by Dr. Aaron H. Magat, a board-certified obstetrician and gynecologist.
Mrs. Kassama, individually and on behalf of Ibrion, filed suit in the Circuit Court for Baltimore County against Dr. Magat, his professional association, and one of his associates. The complaint contained counts for negligence and lack of informed consent. Mrs. Kassama alleged, inter alia, that, but for Dr. Magat's negligence, she would have had an abortion and would not have delivered Ibrion (hereinafter "the wrongful-birth claim"). In her wrongful-birth claim, Mrs. Kassama, individually, claimed economic damages caused by the necessity of raising her genetically defective child.
On behalf of Ibrion, Mrs. Kassama filed a claim for wrongful life based on negligence and lack of informed consent theories. Prior to trial, the court granted the defendants' motion for partial summary judgment as to Ibrion's claim of lack of informed consent.
The case was tried before a jury in the Circuit Court for Baltimore County. At the close of the plaintiff's case, the trial court granted the defendants' motion for judgment as to Ibrion's claim of negligence, as well as Mrs. Kassama's lack of informed consent claim. Thus, only Mrs. Kassama's wrongful-birth claim was considered by the jury.
The jury found that Dr. Magat had breached the applicable standard of care and that the breach was a proximate cause of Mrs. Kassama's injury . The jury also found that Mrs. Kassama was contributorily negligent and that her negligence was a proximate cause of her own injury.
After the trial judge considered and denied Mrs. Kassama's motion for judgment notwithstanding the verdict, and motion for new trial, a timely appeal was filed by Mrs. Kassama, individually and on behalf of Ibrion. The defendants responded by filing a conditional cross-appeal.
II. QUESTIONS PRESENTED
Several of the questions raised by Mrs. Kassama deal with damages and need not be decided. The questions that must be resolved are:
1. Did the trial court err in allowing the jury to consider the issue of whether Mrs. Kassama was contributorily negligent?
2. Assuming that the answer to Question No. 1 is "no," did the trial court err in failing to give the jury a last clear chance instruction?
3. Did the trial court err in granting Dr. Magat's motion for judgment in regard to Ibrion's wrongful- life claim?
We answer all three questions in the negative. Because we shall affirm the judgment entered in favor of the defendants, it is unnecessary to decide the issues raised in the cross-appeal.
III. MEDICAL BACKGROUND
An alpha fetoprotein ("AFP") blood test is used to de
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