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Wrongful Birth Medical Malpractice Law In Maryland

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.