Kassama v. Magat, 837

CourtCourt of Special Appeals of Maryland
Citation767 A.2d 348,136 Md. App. 637
Docket NumberNo. 837,837
PartiesMillicent KASSAMA, Individually, etc. v. Aaron H. MAGAT, et al.
Decision Date28 February 2001

767 A.2d 348
136 Md.
App. 637

Millicent KASSAMA, Individually, etc.
Aaron H. MAGAT, et al

No. 837, Sept. Term, 1999.

Court of Special Appeals of Maryland.

February 28, 2001.

767 A.2d 350
Matt R. Ballenger (T. Christine Pham and Suder & Suder, P.A., on the brief), Baltimore, for appellant

E. Dale Adkins, III (Lynne B. Malone, Gregory L. VanGeison and Anderson, Coe & King, LLP, on the brief), Baltimore, for appellees.

Argued before SALMON, MOYLAN,1 and GEORGE J. HELINSKI, (Ret., Specially Assigned), JJ.

767 A.2d 349

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.2

767 A.2d 351

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.3 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.4 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.5 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.


Several of the questions raised by Mrs. Kassama deal with damages and need not

767 A.2d 352
be decided.6 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.7


An alpha fetoprotein ("AFP") blood test is used to detect genetic defects. Ideally, the blood sample for the AFP test is drawn when a woman is fifteen to sixteen weeks pregnant, but it is acceptable to obtain a blood sample as late as nineteen weeks.8 An abnormally high AFP test score indicates that the fetus may have spina bifida, open spinal cord congenital abnormalities, or certain other serious potential problems. An abnormally low score is associated with Down's Syndrome.

Even if an AFP test shows an increased risk of Down's Syndrome or other serious potential problems, the test is not definitive—it merely shows a potential problem. To find out for certain whether a fetus is afflicted with certain genetic problems, the mother must undergo an amniocentesis, a test whereby a physician, with the assistance of an ultrasound machine, extracts genetic material from the fluid in the sac surrounding the fetus. The material extracted is sent to a laboratory that grows the cells contained in the fluid in order to obtain a genetic profile. Once the results of an amniocentesis is known, the mother must consider the test results and, assuming there is still time for an abortion, decide whether she wants to abort the pregnancy. The parties agreed at trial that if an amniocentesis had been performed in this case it would have shown that the fetus Mrs. Kassama was carrying had Down's Syndrome.

In Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), Judge Blackman noted that the normal term of human pregnancy is 266 days (38 weeks). When Roe was decided, it was believed that a fetus was viable9 "at about seven

767 A.2d 353
months (28 weeks) but [that viability] may occur earlier, even at 24 weeks." Id. at 160, 93 S.Ct. 705. (Citing L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed.1971)). More recently, in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), Justice O'Connor observed that viability sometimes occurs as early as twenty-three weeks.10 Id. at 860, 112 S.Ct. 2791.


There is no statutory time limitation in Maryland after which a genetically defective fetus or one suffering from a "serious deformity or abnormality" may not be terminated. In this regard, section 20-209(b) of the Health General article of the Annotated Code of Maryland (2000 Repl.Vol.) reads:

(b) State Intervention. Except as otherwise provided in this subtitle, the State may not interfere with the decision of a woman to terminate a pregnancy:

(1) Before the fetus is viable; or

(2) At any time during the woman's pregnancy, if:

(i) The termination procedure is necessary to protect the life or health of the woman; or
(ii) The fetus is affected by genetic defect or serious deformity or abnormality.

As will be seen, however, the fact that Maryland's abortion law is extremely liberal does not mean that a woman can find a Maryland doctor who will perform an abortion at any time merely because the mother is carrying a genetically defective fetus.


A. Dr. Magat's Version of Events

Mrs. Kassama first visited Dr. Magat's office on April 19, 1995. On that date, an ultrasound test showed that the gestational age of Mrs. Kassama's fetus was seventeen weeks, four days.

Dr. Magat noted on his patient's chart that Mrs. Kassama was a "late registrant," meaning that she had come to him late in her pregnancy. He ordered blood work, including an AFP test. The doctor filled out a form for Mrs. Kassama to have the blood drawn and referred her to a laboratory, which was within walking distance from his office, where the blood was to be drawn and analyzed. Dr. Magat dated the blood work requisition slip for the next day—April 20, 1995—when he expected that the blood for the AFP test would be drawn.

Dr. Magat told Mrs. Kassama to have the blood work done "as soon as possible." He also told his patient:

767 A.2d 354
I am going to give you two more slips. Those slips ... are for basically [an] AFP test, the test we want to get between 15 and 19 weeks and I, again, briefly went over, obviously, as we talked about, screenings for spina bifida.

* * *

I explained, again, [the] AFP test, what it screens for. I also gave her a slip for official ultrasound. We are were [sic] approaching 18 weeks. The best criteria I had to go with at this point was my ultrasound in the office. I have I felt [sic] fairly confident I had gotten a good measurement, but I wanted to confirm my dates were correct as well as there were no anomalies or problems with the baby.

Dr. Magat next saw Mrs. Kassama on May 18, 1995, at which time Mrs. Kassama told him that she had the blood drawn for the AFP test on May 16, 1995.12 She also said she had obtained the second ultrasound on May 11, 1995. Because his patient had not had the blood work done as requested, Dr. Magat wrote on Mrs. Kassama's chart that she had been "non-compliant."

On May 19, 1995, at 3:15 p.m., Maryland Medical Med Path, the laboratory that analyzed Mrs. Kassama's blood sample, completed a report setting forth the AFP test results. The record does not show when the report was sent to Dr. Magat's office or when he received it, but Dr. Magat saw the report for the first time on May 25, 1995. The report showed that Mrs. Kassama had a one in fifty-seven chance of delivering a baby with Down's Syndrome.

Mrs. Kassama was thirty-one years old when Ibrion was born. The normal risk for a Down's Syndrome baby for someone of Mrs. Kassama's age is approximately one in 700.

On May 25, 1995, the gestational age of Mrs. Kassama's fetus was estimated to be twenty-two weeks and four days. According to the undisputed evidence in this case, no physician in Maryland will perform an abortion of a fetus with Down's Syndrome if the fetus is more than twenty-three weeks and six days old. Mrs. Kassama's fetus would reach twenty-three weeks and six days...

To continue reading

Request your trial
24 cases
  • Prudential Securities Inc. v. E-Net, Inc., 1312
    • United States
    • Court of Special Appeals of Maryland
    • September 5, 2001
    ...are a complete bar to recovery. Crews v. Hollenbach, 358 Md. 627, 640, 751 A.2d 481 (2000) (assumption of the risk); Kassama v. Magat, 136 Md.App. 637, 657, 767 A.2d 348 (2001) (contributory A. Assumption of the Risk In assumption of the risk, "by virtue of the plaintiff's voluntary actions......
  • Barbosa v. Osbourne, 1258, Sept. Term, 2015
    • United States
    • Court of Special Appeals of Maryland
    • April 26, 2018
    ...intercourse for the next six weeks, he had ignored that advice and subsequently suffered resultant complications); Kassama v. Magat , 136 Md. App. 637, 647, 663, 767 A.2d 348 (2001) (holding that the issue of contributory negligence was properly submitted to the jury, where the pregnant pla......
  • Layani v. Ouazana, Civil Action No. ELH-20-420
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 3, 2021
    ...A.2d 1272, 1275 (1999)); see also Coleman v. Soccer Ass'n of Columbia, 432 Md. 679, 690, 69 A.3d 1149, 1155 (2013); Kassama v. Magat, 136 Md. App. 637, 657 767 A.2d 348, 359 (2001), aff'd, 368 Md. 113, 792 A.2d 1102 (2002). 13. As noted, the exhibits submitted by plaintiffs with their oppos......
  • McCoy v. Biomet Orthopedics, LLC, Civil Action No. ELH-12-1436
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 25, 2021
    ...Berkenfeld, 921 F.3d at 153; see Coleman v. Soccer Ass'n of Columbia, 432 Md. 679, 690, 69 A.3d 1149, 1155 (2013); Kassama v. Magat, 136 Md. App. 637, 657 767 A.2d 348, 359 (2001), aff'd, 368 Md. 113, 792 A.2d 1102 (2002). "The focus of the contributory negligence defense . . . 'is whether ......
  • Request a trial to view additional results
1 books & journal articles
  • What's Unconstitutional About Wrongful Life Claims? Ask Jane Roe ....
    • United States
    • Defense Counsel Journal Vol. 87 No. 3, July 2020
    • July 1, 2020
    ...in part and rev'd in part on other grounds, 530 So. 2d 1151 (La. 1988); Viccaro v. Milunsky, 551 N.E.2d 8 (Mass. 1990); Kassama v. Magat, 767 A.2d 348 (Md. Ct. Spec. App. 2001); Strohmaier v. Assocs. in Obstetrics & Gynecology, P.C., 332 N.W.2d 432 (Mich. Ct. App. 1982), abrogated on ot......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT