Kassama v. Magat

• Decision Date: 05 February 2002
• Docket Number: No. 38,38
• Citation: 792 A.2d 1102,368 Md. 113
• Parties: Millicent KASSAMA, Individually, et al., v. Aaron H. MAGAT, et al.
• Court: Maryland Court of Appeals

792 A.2d 1102

368 Md. 113

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

No. 38, Sept. Term, 2001.

Court of Appeals of Maryland.

February 5, 2002.

Reconsideration Denied April 5, 2002.

Matt R. Ballenger (James M. Roquemore of The Suder Law Firm, P.A., on brief), Baltimore, for petitioners/cross-respondents.

E. Dale Adkins, III and Gregory L. Van Geison (Lynne B. Malone of Anderson, Coe & King, LLP, on brief), Baltimore, for respondents/cross-petitioners.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

WILNER, Judge.

This is a medical malpractice action brought by petitioner, Millicent Kassama, for herself and for her young daughter, Ibrion, against Aaron Magat, the obstetrician who treated her during her pregnancy.¹ The action arises from the unfortunate fact that Ibrion was born with Down's Syndrome.² Dr. Magat is not charged with having caused that disorder but rather with causing Ibrion to be born, with negligently having precluded petitioner from exercising her option to abort the pregnancy.

The gravamen of the complaint, as it has evolved during the course of the litigation, is that Dr. Magat failed to advise petitioner of the result of an alpha-fetoprotein (AFP) blood test that indicated a heightened possibility that Ibrion might be afflicted with Down's Syndrome.³ Had she received that information, petitioner now contends, she would have undergone an amniocentesis, which would have confirmed that prospect, and, had that occurred, she would have chosen to terminate the pregnancy through an abortion.

Four causes of action were pled. In Count I, petitioner, on behalf of Ibrion, complained that, but for Dr. Magat's negligence, petitioner would have terminated the pregnancy and Ibrion would not have been born with her current afflictions. This kind of action has often, though perhaps misleadingly, been referred to as one for "wrongful life."⁴ It is based on the premise that being born, and having to live, with the affliction is a disadvantage and thus a cognizable injury, when compared with the alternative of not having been born at all—that an impaired existence is worse than nonexistence—and that, if that injury results from the defendant's negligence, a cause of action exists. Through her mother, Ibrion sought recompense for the care and attention she would require, for the expense she would incur for the rest of her life, for the loss of future income, for physical and emotional pain and suffering, and for past and future bodily injury. In Count II, petitioner sought damages for her own pain, suffering, and distress and for the expenses she has incurred and will incur by reason of Ibrion's disability.

Counts III and IV were captioned "Informed Consent." In them, petitioner, for herself in one instance and for Ibrion in the other, alleged that Dr. Magat had an obligation to administer an AFP screening, an amniocentesis, or other fetal diagnostic procedure and to inform petitioner of the increased risk that she would give birth to a baby afflicted with Down's Syndrome, that had he informed her of that risk, she "would have sought an AFP screening, an amniocentesis, and/or other tests," and, based on the results of those tests, would have terminated the pregnancy. As the result of "the lack of informed consent," she relied on "all of the Defendants' representations," and gave birth to a child afflicted with Down's Syndrome.

Three of the four counts were dismissed either prior to or during trial. Count IV— Ibrion's action for lack of informed consent—was disposed of through the pretrial granting of a motion for partial summary judgment. Petitioner voluntarily withdrew Count III, her own action for lack of informed consent, and Count I—Ibrion's claim for "wrongful life"—was dismissed on motion for judgment made at the end of the plaintiff's case. Only Count II—petitioner's action for negligence—was submitted to the jury, which found for Dr. Magat. In a special verdict, it found that Dr. Magat was negligent but that petitioner was contributorily negligent. Petitioner appealed, complaining about the dismissal of Count I, the submission of the issue of her contributory negligence on Count II to the jury, and the court's refusal to give a "last clear chance" instruction with respect to Count II. No complaint was made about the fate of the informed consent claims. The Court of Special Appeals affirmed, Kassama v. Magat, 136 Md.App. 637, 767 A.2d 348 (2001), and so shall we.

BACKGROUND

This was petitioner's fifth pregnancy. Three of her other children were born healthy and without affliction, and she aborted one pregnancy during the first trimester. Petitioner suspected that she might be pregnant with Ibrion in January, 1995. More certain in February, she consulted her primary care physician late in that month and was referred to Dr. Magat's professional association. According to Dr. Magat's records, she did not call for an appointment until March 29, however— a delay of about a month—and it was not until April 19 that he was able to see her. When petitioner appeared at his office that day, Dr. Magat estimated from an ultrasound examination that the fetus was 17 weeks, 5 days old. He noted in petitioner's record that she was a "late registrant," meaning that she came to him late in her pregnancy.

That fact serves as a critical backdrop for the basic dispute in this case. Although for purposes of estimating a delivery date, the human gestational period is commonly referred to as being approximately 280 days (40 weeks) from the first day of the mother's last normal menstrual period, the actual gestational term, based on ovulatory or fertilization age, is two weeks shorter—38 weeks or 266 days.⁵ When Roe v. Wade, 410 U.S. 113, 160, 93 S.Ct. 705, 730, 35 L.Ed.2d 147, 181 (1973) was decided, it was thought that a fetus became viable—able to live outside the mother's womb—at about 28 weeks, possibly as early as 24 weeks. In Planned Parenthood v. Casey, 505 U.S. 833, 860, 112 S.Ct. 2791, 2811, 120 L.Ed.2d 674, 703 (1992), Justice O'Connor noted that viability may occur as early as 23 weeks.⁶

This has a practical significance in terms of certain treatment options. Maryland law precludes the State from interfering with the decision of a woman to terminate a pregnancy (1) before the fetus is viable, or (2) at any time during the pregnancy if either "the termination procedure is necessary to protect the life or health of the woman" or "the fetus is affected by genetic defect or serious deformity or abnormality." Md.Code, § 20-209(b) of the Health General Article. Notwithstanding that the State may not preclude an abortion, at any time, when the fetus has such a condition, the evidence in this case was undisputed that no doctor in Maryland will perform an abortion with respect to a Down's Syndrome child after the fetus becomes 23 weeks, 6 days old. To have such an abortion performed by a physician at or after 24 weeks, the woman must go out of State—to New York, Kansas, or Arkansas, according to the testimony.

It appears to be a standard part of obstetrical care for a patient such as petitioner, who was 30 at the time, to have blood drawn for an AFP test, which measures the level of alpha-fetoprotein in the blood and serves as a screening device for certain fetal disorders.⁷ An abnormally high level of AFP suggests the possibility that the fetus may have, among other things, spina bifida or other neural tube defects; a very low level suggests the possibility of Down's Syndrome. Evidence in this case indicates that the test is normally performed when the patient is between 15 and 16 weeks pregnant but that it may be performed as late as 19 weeks. The AFP test is not determinative for Down's Syndrome. Testimony indicated that it will return a positive result in about 60% of the cases but accurately diagnoses Down's Syndrome only 2% of the time. The experts all agreed that, if the test shows the prospect for Down's Syndrome, the doctor should explain the significance of that result and offer the patient an amniocentesis, which will more accurately determine the existence of that disorder.

Amniocentesis is a more invasive procedure and carries certain attendant hazards, one of which, according to Dr. Magat, is a slightly increased risk of a miscarriage. It is not, therefore, performed without a reason. Fluid is withdrawn by needle from the amniotic sac in the uterus. Although the fluid consists mostly of fetal waste, it also has in it discarded skin cells that contain fetal DNA. Once extracted, the skin cells are cultured for about two weeks, at which point the DNA can be examined to determine, among other things, the presence of Down's Syndrome. Expert testimony presented by both parties indicated that the normal waiting period for results of an amniocentesis is approximately two weeks, although one of petitioner's experts, Dr. Lawrence Borow, opined that it was possible, with a "rush" amniocentesis, to obtain results in as little as seven days.⁸

The relevance of this is in the sequencing, or time line, working backward from the 24-week practical deadline in Maryland for aborting a pregnancy because of a Down's Syndrome fetus. To protect a patient's option to terminate her pregnancy, the AFP screening which, as noted, is usually done between the fifteenth and nineteenth weeks of pregnancy, must be done in time to obtain and examine the results and determine, if the test is positive for Down's Syndrome, whether to proceed with an amniocentesis. That, in turn, must be done in time to allow for the culturing to take place, so that if it, too, proves positive for Down's Syndrome, the patient will have that information before the twenty-fourth week of pregnancy, in time to have an abortion if that is what she wishes to do. The normal "turn-around" time to obtain the results of an AFP test by mail, according to the evidence, is about four to five...