Maryland Medical Malpractice Lawyer Blog

As a Maryland medical malpracitce lawyer / attorney, many people ask me what is a wrongful birth case. In Maryland, a wrongful birth case is a case in which parents of a child born with birth defects allege that the negligence of prenatal health care providers deprived them of the opportunity to terminate the pregnancy due to the likelihood of the child being born in an impaired state. These type of cases are brought by parents in an effort to recover the economic expenses that will accrue in raising a child with extraordinary needs.

A. The Maryland Seminal Case Recognizing “Wrongful Birth” Claims in Maryland – Jones v. Malinowski

The first case in Maryland to recognize that Maryland permits a wrongful birth claim is Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984). Jones is an action for damages based on negligent sterilization resulting in the birth of a healthy child. The Court of Appeals in Jones clearly stated that Maryland has not established an independent cause of action for wrongful birth cases; instead, it held that wrongful birth cases in Maryland are embraced within the tort of negligence: "there is a cause of action in tort based upon traditional medical malpractice principles for negligence in the performance of a sterilization procedure is well accepted." Id.

What follows from that premise that the action is one in tort is that, in the absence of some special statutory provision to the contrary, the ordinary rules of tort litigation apply. Once again, Jones v. Malinowski is instructive: "In a tort action for negligence in Maryland the plaintiff may recover “not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural” (string citations omitted). Otherwise stated, it is the general rule of damages, applicable in tort actions in Maryland, that a plaintiff may recover only those damages that are affirmatively proved with reasonable certainty to have resulted as the natural, proximate and direct effect of the tortious misconduct." Jones, 299 Md. at 268-269, 473 A.2d at 435 (italics and boldface added for emphasis) (see also Dehn v. Edgecombe, 152 Md. App. at 677, 834 A.2d at 157 qouting Jones).

Based upon this definition, one issue that arises is whether Plaintiffs can pursue damages for the child’s post-majority (after 18 years old) medical and other care expenses if it can be shown by the Plaintiffs that such damages are the natural, proximate and direct effect of the Defendants’ tortious conduct.

In Jones there was no need for the Court to address the issue of post-majority damages because there was a negligent sterilization case involving a healthy child. Since the parents of the child in Jones clearly would not have to pay for any medical or other care expenses after their healthy child reached the age of majority, the issue of post-majority expenses simply never was an issue. Accordingly, the type of damages that the Court allowed in Jones is different than the type of damages allowed in this case. Since Jones involved a healthy child, the Court in that case allowed “child rearing costs to the age of the child’s majority, offset by the benefits derived by the parents from the child’s aid, society, and comfort.” Id. 299 Md. at 270, 473 A.2d 435. Nevertheless, the Court of Appeals in subsequent wrongful birth cases intentionally and specifically recognized that damages in wrongful birth cases are not limited to the child’s minority.

B. The First Case After Jones - Reed

The first wrongful birth case decided by the Court of Appeals after Jones was Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993). That case involved the alleged wrongful birth of a child with severe physical deficits due to genetic abnormalities, due to the alleged failure of health care providers to inform the parents of the availability of a diagnostic genetic test.
The Reed case reached the Court of Appeals because The United States District Court for the District of Maryland certified two specific questions to the Court of Appeals regarding whether Maryland recognizes a tort cause of action for wrongful birth under the circumstances of that case, and whether the continuation of a pregnancy is a decision requiring the informed consent of the patient which can give rise to a Maryland tort cause of action for lack of informed consent under certain circumstances. However, neither of those Certified Questions called upon the Court of Appeals to specifically decide whether post-majority damages are allowed. According to the Court: "The certified questions do not ask this Court to define the measure of damages. For the purpose of answering the first certified question, it is sufficient to state that there is at least some economic harm to the parents in these cases – a harm that can be quantified under the general rules relating to tort damages." Id., 332 Md. at 236, 630 A.2d at 1150 (emphasis added).

Again, the Court of Appeals in Reed did not limit the amount of damages that may be recovered in wrongful birth cases to the child’s minority. After reviewing wrongful birth law in other states, the Court stated that “those courts that recognize the cause of action alleged by the Reeds permit, at a minimum, damages measured by the extraordinary cost, at least through minority, of supporting the child with severe birth defects as compared with supporting a child who is not so afflicted.” Id., 332 Md. at 238, 630 A.2d at 1151 (emphasis added). The Court further stated, “We cite these authorities not for the purpose of defining or refining a measure of damages in these cases, but simply to demonstrate that there is a legally cognizable injury to the parents in these cases.” Id., 332 Md. at 239, 630 A.2d at 1151 (emphasis added). Clearly, the Court of Appeals in Reed did not limit the period of time over which extraordinary damages may be claimed in a wrongful birth case involving an unhealthy child.

The Court of Appeals in Reed also gave guidance on how courts should consider damages in wrongful birth cases when the child is unhealthy. According to the Court: “For the purpose of answering the first certified question, it is sufficient to state that there is at least some economic harm to the parents in these cases – a harm that can be quantified under the general rules relating to tort damages.” Id., 332 Md. at 236, 630 A.2d at 1150 (emphasis added). As the Court of Appeals previously stated in Jones, the general rules are: “In a tort action for negligence in Maryland the plaintiff may recover not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural.” Jones, 299 Md. at 268-269, 473 A.2d at 435. It goes to follow, that the Court’s findings in Reed would also permit Plaintiffs to recover economic damages for a child’s post-majority medical and other care expenses.

C. The Second Case After Jones - Kassama

The second wrongful birth case decided by Court of Appeals after Jones was Kassama v. Magat, 368 Md. 113, 792 A.2d 1102 (2002). That case involved the alleged wrongful birth of a child with severe physical and mental deficits from Down syndrome, due to the alleged failure of health care providers to report to the parents the abnormal results of a screening genetic test.
The Kassama case reached the Court of Appeals after a jury verdict in favor of the plaintiff on the issue of wrongful birth, but a finding of contributory negligence on the part of the plaintiff resulting in judgment being entered in favor of the physician. The plaintiff appealed alleging that the trial court erred in dismissing a wrongful life claim, submitting the issue of contributory negligence to the jury, and refusing to give a last clear chance instruction. Once again, the Court of Appeals was not called upon to specifically decide whether post-majority damages are allowed.

D. The Third Case After Jones - Dehn

The third and final wrongful birth case decided by the Court of Appeals after Jones was Dehn v. Edgecombe, 384 Md. 606, 865 A.2d 603 (2005). That case involved the alleged wrongful birth of a healthy child due to negligence in the post-operative care following a vasectomy. Like Kassama, the Dehn case reached the Court of Appeals after a jury verdict in favor of the plaintiff on the issue of wrongful birth, but a finding of contributory negligence on the part of the plaintiff resulting in judgment being entered in favor of the physician. The plaintiff appealed and the “principal question” before the court was “whether Maryland recognizes an independent cause of action in a patient’s wife against a doctor who acted negligently while treating her husband but who had no relationship or direct interaction with the wife.” Id., 384 Md. at 611, 865 A.2d at 606. Once again, the appellate issue did not call upon the Court to specifically decide whether post-majority damages are allowed. Nevertheless, in quoting Jones v. Malinowski, the Dehn court did, however, reiterate and reinforce that the general law of tort damages in Maryland governs in wrongful birth cases.

E. Other Judges of the Circuit Court of Maryland Have Allowed Plaintiffs to Pursue Post-Majority Damages In Wrongful Birth Cases

Faced with the same question of whether Maryland law permits the recovery of post-majority damages in wrongful birth cases, The Honorable Clifton Gordy of the Circuit Court for Baltimore City allowed a plaintiff in a wrongful birth case to claim post-majority damages in Bach v. Steinberg, Case No. 94006047/CL174650.

Additionally, The Honorable Robert Cadigan of the Circuit Court for Baltimore County also held that a plaintiff was allowed to claim post-majority damages in a wrongful birth case, when he denied the Defendants’ Motion in Limine in Canelos v. Manley, Case No. 03-96-1226.

In sum, there is a very strong argument that plaintiffs in Maryland wrongful birth cases should be able to claim post-majority medical and other care expsnes in wrongful birth cases.

Many peole ask what type of damages they can get in a medical malpractice / medical negligenc cases. One type is lost wages. Maryland courts have repeatedly acknowledged the legitimacy of lost wage claims in negligence cases. For instance, in Adams v. Benson, 208 Md. 261, 270-271, 117 A.2d 881, 885 (1955), the Court of Appeals recognized: "That in an action for personal injuries caused by the negligence of the defendant, the plaintiff may recover not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural." The Court then recognized that in a personal injury action, a plaintiff may claim: "damages for (1) resulting loss of time and loss of earnings; (2) loss or diminution of earning capacity sustained by being temporarily deprived of her capacity to perform her ordinary labor, and (3) loss of future earnings, if shown with reasonable certainty and not merely speculative in character". Id., 208 Md. at 271, 117 A.2d at 885.

Additionally, in Lumber Terminals Inc. v. Nowakowski, 36 Md. App. 82, 89, 373 A.2d 282, 287 (1977), the Court of Special Appeals held that, “In personal injury cases courts generally, and Maryland particularly, consider among other losses lost wages and earnings suffered by the injured person not only from the time of the injury to trial, but those reasonably certain to occur in the future.” That Court recognized, “In short, the measure of damages, broadly stated, is the amount which will compensate the injured person for all losses he has sustained by reason of the injury.” Id., 36 Md. App. at 92, 373 A.2d at 289; see also Monias v. Endal, 330 Md. 274, 623 A.2d 656 (1993) (“In an action for personal injuries, a plaintiff may recover for loss of future earnings which will reasonably and probably result from the tort.”).

A South Carolina jury has awarded $4.4 million to the parents of a 4-year-old girl who died after suffering brain injury at birth at a hospital there. The jury found that the hospital was at fault in 2003 when it assigned a nurse trainee to monitor the mother, who had come to the hospital three days before her scheduled induction, complaining of nausea and vomiting. Lawyers for the family argued the nurse trainee misread fetal heart monitoring information showing the baby was in severe distress and needed emergency intervention. The infant subsequently was born with a severe brain injury caused by oxygen deprivation, and died of complications from cerebral palsy more than four years later. While the child was alive, the family endured constant challenges, including giving medication to battle seizures, taking her to therapy several times a week and relying on a feeding tube to keep her nourished. A copy of an article regarding the case can be found here.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Maryland involving birth injuries. These cases are always tragic.

A Texas man who lost both of his arms and legs to a hospital acquired infection infection, called methicillin-resistant Staphylococcus aureus also known as MRSA, has been awarded $17.5 million by a Texas jury. After medical malpractice caps are applied, the plaintiff could collect up to $7.5 million from the doctor, an infectious-disease specialist who treated the infection in 2003. The doctor had treated the plaintiff six years ago when he developed an infection following ulcer surgery at a hospital in Texas. The doctor administered eight antibiotics to Fitzgerald but not the one drug that would have treated MRSA. The hospital-acquired infection is resistant to several common antibiotics and can become deadly if it spreads and is not treated quickly.
As a result of the malpractice, the patient went into septic shock, which caused irreparable damage to his limbs. By the time the infection was diagnosed and treated, gangrene had set in, requiring the removal of both arms below his elbows and both legs below his knees. A copy of an article regarding the case can be found here.

In the past year, there has been a number of multi-million dollar medical malpractice verdicts involving hospital acquired infections. For example, in July, a couple was awarded $2.5 million in Missouri after the husband developed MRSA and then lost a foot, leg and kidney. Subsequently, in November, a Massachusetts jury awarded $13 million to the family of a woman who died from a flesh eating infection. After that, in November, a woman reached a confidential settlement after filing a $16 million suit after a Utah hospital failed to diagnose flesh eating bacteria before she gave birth. This caused her to lose three limbs and several organs.

Hopefully, these awards award will be a reminder to doctors and hospitals that it is important for them to recognize and treat MRSA as quickly as possible before a patient develops septic shock. Nobody should go through this.

Every year in the United States, approximately 5% of patients admitted to hospitals develop hospital acquired infections (Staph, MRSA, etc.). A hospital acquired infection is one that is caused by just being in the hospital. Such infections double the rate of mortality for admitted patients, and it a leading cause of death in this country.

There has been a lot of talk lately about efforts to reduce the number of hospital acquired infections, which generally start in the tubes and catheters inserted into the body. Today, there was a great article in the Washington Post about one doctor’s initial skepticism that these infections could be prevented, and his eventual realization that these infections can largely be prevented. This doctor was skeptical when his hospital joined the quality improvement initiative led by the Institute for Healthcare Improvement, a nonprofit founded by Harvard pediatrician Donald Berwick. By looking at the process, measuring the results, providing feedback to key people and developing strategies to improve the care of their patients, they made checklists to ensure that certain procedures were followed to prevent hospital acquired infections. These were procedures similar to what intensive care units in Michigan did to reduce bloodstream infections to nearly zero.

For this particular doctor, after two years, there was a 50 percent decline in the intensive care unit infection rate, with a 21 percent (or $702) reduction in cost per ICU discharge. In fact, the results were so stunning, that the group published the results in the journal Quality and Safety in Health Care. A copy of an article regarding the case can be found here.

As of today, there have been only a handful of major verdicts in cases alleging that medical malpractice for causing a hospital acquired infection. As these checklists become generally accepted, there certainly will be more cases.