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Kassama v. Magat2/28/2001
re to have an abortion.
A patient has a duty to cooperate with her physician by following his or her instructions regarding treatment and tests. This is especially true in situations like the one in which Mrs. Kassama, as a late registrant, found herself on April 19, 1995. By the time she decided to have the AFP test, she had delayed so long that her fetus was on the cusp of viability.
There was evidence from which the jury could have found:
1. Dr. Magat, on April 19th, explained to Mrs. Kassama the purpose of the AFP test and told her that it was to be performed between the fifteenth and nineteenth week of pregnancy.
2. Dr. Magat told Mrs. Kassama to have the AFP test "as soon as possible."
3. As of April 19th, Mrs. Kassama knew that she was almost eighteen weeks pregnant - yet she waited for almost four weeks -which put her well beyond her nineteenth week - to have the blood drawn for the AFP test.
4. By delaying nearly four weeks in having the genetic test, "Mrs. Kassama breached a duty to herself." (See n.13, supra.)
5. If Mrs. Kassama had followed her doctor's orders, Dr. Magat would have had plenty of time to handle her pregnancy in the usual fashion, i.e., schedule an amnio-centesis, obtain the amniocentesis results, and, if requested, arrange for an abortion in Maryland.
6. Because Mrs. Kassama failed to follow her doctor's orders, her case went from the routine - to one where any abortion performed would come extremely late in her pregnancy - so late that no doctor in Maryland would abort the fetus - even though such an abortion would not have been prohibited by state law.
In her brief, Mrs. Kassama focuses on the fact that her own negligence would have caused her no harm but for Dr. Magat's subsequent negligence. If, on May 25, 1995, Dr. Magat failed to tell his patient that she could still get an abortion out of state, and if Mrs. Kassama was, in fact, willing to travel out of state for an abortion, this is true. But the fact that there would have been no injury but for Dr. Magat's negligence is not dispositive. In any case where both primary and contributory negligence are proven, it is always true that the plaintiff would have suffered no injury had the defendant not also been negligent.
Although she does not phrase her argument as such, Mrs. Kassama contends, in effect, that (1) Dr. Magat's negligence was a superseding cause of her injury ; and (2) a superseding cause negates a defendant's contributory negligence defense. Intervening negligence is a superseding cause if it is not reasonably foreseeable. Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 52 (1995). When the issue is whether a defendant is guilty of primary negligence, a third party's intervening negligence that is a superseding cause absolves a defendant from his or her act of negligence. Id. But recently, in May v. Giant Food, Inc., 122 Md. App. 364 (1998), we held that "for purposes of contributory negligence, the issue of whether the defendant's act of primary negligence constitutes an intervening or superseding cause is properly analyzed as a question of proximate causation and foreseeability" - not under a superseding cause analysis. Id. at 391. At bottom, however, the matter comes down to a question of semantics rather than substance. See Rawl v. United States, 778 F.2d 1009 (4th Cir. 1985), where the Court said:
The problem of whether the superseding and intervening negligence theory is available only for the benefit of defendants may, however, be simply no more than a matter of labels, for the doctrine of intervening and superseding negligence is very similar to a rule of law which
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