Kassama v. Magat

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 unfortu ¹¹⁶ nate fact that Ibrion was bom 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 bom with her current afflictions. This kind of action has often, though perhaps misleadingly, ¹¹⁷ 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 ¹¹⁸ 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 plaintiffs 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 bom 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 ¹¹⁹ 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 ¹²⁰ (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 amniocen ¹²¹ tesis, 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 days, although the physician can request that the results be reported by telephone immediately. ¹²² It is with that background that we examine the evidence of what occurred at and after petitioner’s first visit to Dr. Magat on April 19, some of which is in dispute. Dr. Magat said that, after concluding from the ultrasound procedure he performed that petitioner was 17 weeks and 5 days into her pregnancy, he gave her a number of referral slips for additional lab testing, including one for an AFP test and one for an “official” ultrasound, the latter to confirm the results of the office ultrasound. He said that he told petitioner to have the AFP test done the next day, and he dated that referral form April 20. Dr. Magat did not see petitioner again until May 18,1995, her next scheduled appointment.

By then, he had received the results of the “official” ultrasound test, performed on May 11, which reported a gestational date of 20.2 weeks. That was consistent with what his office ultrasound had shown. He was surprised to learn, however, that petitioner had waited until May 16 to have the AFP test performed, and he did not yet have the results of that test. He noted in petitioner’s record that she was “noncompliant,” which meant that she had not followed his instructions regarding the AFP test.

Dr. Magat said that he first saw the AFP report on May 25. It had been completed by the lab on May 19, a Friday, at 3:14 p.m. and had arrived at his office at some point during the next week. His partner, Dr. Epstein, saw the report first and pulled the chart for Dr. Magat. The report showed an extraordinarily low level of AFP and estimated the risk of Down’s Syndrome as one in 57.

The normal risk for Down’s Syndrome was stated on the réport as less than one in 270. Testimony by one of petitioner’s experts put the normal risk for a person her age as one in 900; testimony by the other put the risk as one in 400. Dr. Magat said that, upon reading the report, he immediately called petitioner, told her that he was “suspicious for Down’s Syndrome,” but explained that, because, having waited four weeks to have the test performed, she was already 22 weeks and 4 days pregnant, that it took about two weeks to get the results back from an amniocentesis, that she would then be more than 24 weeks pregnant, and that it would then be too late to have an abortion in Maryland. ¹²³ He said that he informed her that there were other States where she could go and that she responded that “she would not act on the results and she didn’t want to do anything about it.” Dr. Magat added that he informed petitioner that she could have an amniocentesis done anyway, although there were risks attached to that procedure, and she again said that she would not act. Finally, he said that he suggested that she get genetic counseling “to explore what options you have left,” and that she replied, for a third time, that she “wouldn’t do anything about it anyway.” Dr. Magat made a number of entries in this regard on petitioner’s medical charts and records, some of which, at least facially, appear to be inconsistent.

Following his conversation with petitioner, he noted on the lab report itself, “Pt informed Needs Genetic Conseling [sic ] Possible Amni.” Part of petitioner’s office medical record was kept on a three-page Sinai Hospital prenatal record form. Page two of that form contains, among other things, sections for laboratory results and treatment notes. In the laboratory section is a space for “AFP” and in that space is written “low too late for amni.” In the treatment part is noted both “Genetic counseling possible amnio,” and “too late for amnio.” Page three of the form contains both dated entries, as in a log, and an undated “Problems List.” Under the date of May 25, 1995, Dr. Magat initially wrote in the log part, “Pt is now 22-h weeks. Pt. offered amnio even though she would be > 24 weeks by time results returned.” He amended that entry, however, to read “Pt. too late for amnio because she would be > 24 weeks by time results returned,” explaining that he had already made the initial note on the lab sheet and wanted this note to reflect the lateness of the test, the lateness of the results, and that, in Maryland, she would be too late to act on an amniocentesis.

He noted as well, under the heading of “Problem List,” “t AFP — too late for amnio.” Nowhere on any of these records did Dr. Magat note his conversation with petitioner or that petitioner had decided not to have an amniocentesis and not to take any other action based on the AFP result. ¹²⁴ Petitioner had a very different story, which changed as the case developed. As noted, in her complaint, she claimed that Dr. Magat refused even to recommend an AFP screening, alleging that he “would not administer a alpha feta-protein [sic ] screening ... to her because Defendants advised Plaintiff that it was too late for her to undergo that screening procedure” and that Dr. Magat was “negligent in failing to administer a AFP screening.” She repeated that charge in her answers to interrogatories-that Dr. Magat assured her that she had no risk factors and that it was too late for her to undergo “any testing,” and that he “therefore, did not send her for AFP testing or any other genetic studies.” At trial, when faced with documentary evidence that she did have an AFP test, she said that Dr. Magat “probably spoke to me about the AFP testing, getting everything done.” Her position at trial was that Dr. Magat never informed her of the results of the AFP test-that the call he testified to never occurred. She said that she had no idea that Ibrion was going to be a Down’s Syndrome baby, that if she had been informed of the result of the AFP test she would have had an amniocentesis, and that if the amniocentesis revealed that she was carrying a Down’s Syndrome child, she would have aborted the pregnancy. The one neutral item of evidence bearing on this dispute— the referral slip filled out by Dr. Magat and given to petitioner to take to the lab when she got the AFP test — is, unfortunately, somewhat ambiguous with respect to dates.

The copy of the slip entered into evidence, consisting of two pages, contains portions that are either difficult to read or have been blotted out altogether. The copy came from the lab that performed the test; Dr. Magat said that he does not keep copies of referral slips. The first page, captioned “Clinical Requisition,” has a space at the top for “Date of Request.” That space is blank. The main part of that page consists of a list of various kinds of tests.

Presumably, the requesting physician is supposed to check the one(s) to be performed. Only one is checked, but, because of the condition of the exhibit, we cannot determine what it is. We infer it is the ¹²⁵ AFP test. At the bottom of that page is the signature of Dr. Magat and a date of “5/16/95.” The second page, captioned “Marker Assessment of Pregnancy (MAP) Request,” also has a space at the top for Date of Request.

That shows a date of “4/20/95.” It contains mostly billing and insurance information, but near the bottom is a box for certain patient information that Dr. Magat filled out. At the very bottom of the form is a certification that Dr. Magat had discussed the AFP test with his patient and had obtained her informed consent for AFP testing, underneath of which is a place for the patient’s signature, the date of that signature, and for Dr. Magat’s signature and the date thereof. Both signatures appear. Petitioner’s signature is dated May 16,1995.

There is no date after Dr. Magat’s signature. Dr. Magat testified that he filled out the form at the time of petitioner’s first visit, on April 19, and dated it for April 20 on the assumption that she would have the test the next day. Similar forms for other kinds of tests were dated April 19. Magat said that he did not put the date of May 16 on the form.

Petitioner claimed to have no recollection of when she received the form or when she had the test. She agreed that Dr. Magat had asked her to get the testing done the day after her first visit, which she confirmed was April 19, but she then questioned that and suggested, from the date on the bottom of the form, that it may have been May 16. There is nothing in the record to corroborate the suggestion that petitioner was not given the referral form on April 19. She did not see Dr. Magat again until May 18-after the test was performed.

The question of whether Dr. Magat informed petitioner of the result of the AFP test is a factual one, and any dispute over when she received the referral form is irrelevant to that issue. Clearly, the test was performed on May 16, and Dr. Magat first learned of the result on May 25. The focus of the expert testimony was on ■ other issues — whether Dr. Magat should have followed up either with the lab or with petitioner when he did not receive the test result within a few days after April 20, and whether, in light of the prospect of petitioner being able to have an out-of-State abortion after 24 weeks, he ¹²⁶ was negligent in assuming that it was too late for an amniocentesis, if that, indeed, was the case. To a large extent, that latter issue also hinges on factual disputes.

Dr. Magat, as noted, testified that he did tell petitioner of the prospect of an out-of-State abortion and that she should seek genetic counseling, which would have revealed that prospect as well. Petitioner denied any such conversation. Dr. Leonard LaBua, a gynecologist called as an expert by petitioner, opined that it was incumbent upon Dr. Magat to call petitioner when he did not receive the AFP test result within a few days after April 20 — that he should have had “some method of fail-safe” when dealing with a time-sensitive diagnosis. 9 He opined further that, upon learning from petitioner on May 18 that the testing was done two days earlier, Dr. Magat should have called the lab and asked it to give him the results by telephone, so he would have them immediately. Waiting until May 25 to obtain and examine the report, according to Dr. LaBua, constituted a breach of the applicable standard of care.

Dr. LaBua also faulted Dr. Magat’s statement that it was too late for an amniocentesis, noting first that such a test can be performed at any time, and second that there was still time, in any event, for petitioner to have acted on the amniocentesis results and have an abortion, at least out of State. Petitioner’s other expert, Dr. Borow, assuming, incorrectly, that the AFP test result was returned to Dr. Magat on May 19, opined that Dr. Magat “failed to adequately counsel the patient to interpret the laboratory test,” to advise her of her viable options, and to “arrange for her to have appropriate genetic testing done to reveal the presence of the baby with a Down’s syndrome [sic] and to afford her the opportunity to terminate the pregnancy in a timely fashion.” ¹²⁷ Dr. Borow was the one who believed that amniocentesis results could be obtained within seven to ten days, using a “rush” technique, and it was on that basis that he believed there was time to have an abortion before the expiration of 24 weeks. DISCUSSION Petitioner’s Contributory Negligence In Craig v. Greenbelt Consumer Servs., Inc., 244 Md. 95, 97 , 222 A.2d 836, 837 (1966), we adopted the definition of contributory negligence stated in Restatement (Second) of Torts § 463: “ ‘Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiffs harm.’ ” We concluded further in Craig that, in measuring contributory negligence, the standard of care imposed on a person for his or her own protection is that of a reasonable person under like circumstances, and that a reasonable person’s conduct “is to be judged in the light of all the relevant knowledge which the person actually then had.” Id. at 97 , 222 A.2d at 837 . The focus of the contributory negligence defense, we added in Wegad v. Howard Street Jewelers, 326 Md. 409, 417 , 605 A.2d 123, 127 (1992), “is whether the plaintiff took appropriate precautions to protect his [or her] own interests.” See also County Commissioners v. Bell Atlantic-Maryland, 346 Md. 160, 180 , 695 A.2d 171, 181 (1997).

Both sides moved for judgment on the issue of contributory negligence at the end of the case. The motions were denied because the court concluded that, in light of the conflicts in the evidence bearing on the issue, the question was for the jury to decide. In moving for judgment in her favor and in pressing her claim on appeal, petitioner conceded that there was sufficient evidence produced for the jury to determine that Dr. Magat had instructed her on April 19, 1995, to ¹²⁸ have the AFP test done immediately, that, in contravention of that instruction, she waited four weeks, until May 16, to have that test done, and that such a delay could constitute negligence on her part. Her point — her . only point — was that, notwithstanding her delay, there was still time on May 19, when the test result was known, for her to undergo an amniocentesis and elect to abort the pregnancy, and that her contributory negligence therefore was not a proximate cause of her injury — the birth of her daughter.

In her view, it was the negligence of Dr. Magat in not obtaining the test result promptly, in not advising her of that test result, and in failing to inform her of the option of having an abortion out of State that precluded her from making an informed decision to terminate the pregnancy. That, not her delay in getting the AFP test, proximately caused the injury. On appeal, petitioner makes the additional argument that, in a case such as this, there can be but one proximate cause of the injury and that the evidence necessary to establish liability on Dr. Magat’s part necessarily precludes a finding that any negligence on her part caused the injury. This argument, as presented, is somewhat imprecise but seems to focus on whether petitioner would have aborted the pregnancy had she been properly informed of the problem.

For Dr. Magat’s negligence to have been a proximate cause, she claims, the jury would have to have found that she would have terminated the pregnancy, and, thus, in finding him negligent, the jury-must have so concluded. That finding, however, in her view, would preclude any delay on her part in having the AFP test from constituting a cause of the injury. She explains that, if the jury believed that Dr. Magat made the call on May 25 and correctly explained all of her options, as he testified, it could not have found any negligence on his part to be the proximate cause of her not aborting the pregnancy, for there would still have been time for her to do so. If, on the other hand, the jury concluded that he did not make that call or did not correctly explain her options, her delay in getting the AFP test would not have been the proximate cause of her not terminating the pregnancy. ¹²⁹ There are a number of deficiencies in both arguments.

The jury’s findings of primary and contributory negligence were general in nature. They did not specify what conduct on the part of either Dr. Magat or petitioner the jury considered to be negligent, and there were several things from which to choose. Depending on how it viewed the evidence presented, the jury could have found that Dr. Magat was negligent in (1) not following up with petitioner when he failed to get an AFP test report within a few days after April 19, as Dr. LaBua testified, (2) not calling the lab to order an immediate telephonic report when he learned on May 18 that the test was not done until May 16, as Dr. LaBua further testified, 10 (3) not calling petitioner after he learned of the test result on May 25, as petitioner testified, or (4) in calling her but, in the belief that it was too late for anything to be done, in or out of State, failing to advise her of the out-of-State option, as some of his records suggest. As to petitioner, the jury could have found contributory negligence in her failure to get the AFP test done promptly or, if it found that Dr. Magat did call her on May 25 and explained to her the various options, including an out-of-State abortion or genetic counseling, that she acted unreasonably in not pursuing one of those approaches.

Evidence showed that petitioner had some family history of Down’s Syndrome, that she had an AFP test done in two of her earlier pregnancies, and that she had a history, in her earlier pregnancies, of missed appointments and delays. The jury could thus have inferred that petitioner understood both the risk of a Down’s Syndrome baby and the need to be punctual and vigilant. Petitioner’s arguments rest on some questionable assumptions of what the jury must have found. They assume that the finding of primary negligence related, at least in part, to Dr. ¹³⁰ Magat’s conduct from and after May 25, when he first became aware of the AFP test result, and further assume either that the jury credited Dr. Borow’s challenged testimony that amniocentesis results could be obtained in seven days and that it was therefore still possible to obtain an abortion in Maryland, or that the jury credited petitioner’s testimony that she would have traveled out of State, if necessary, to have an abortion.

Those assumptions may not be accurate, however. The jury could well have found that Dr. Magat properly explained all of the options available to petitioner on May 25, and that his negligence lay in not following up with either the lab or with petitioner when no report was received within a few days after April 20, as Dr. LaBua opined. The jury may have concluded that, had he done either, the AFP test result would have been obtained earlier, when there was still time to have amniocentesis confirmation prior to the twenty-fourth week of pregnancy, but that, by May 25, it was, in fact, too late to have the prognosis of Down’s Syndrome confirmed by an .amniocentesis in sufficient time to have an abortion in Maryland. If that was the basis of the jury’s finding of primary negligence, as it reasonably might have been, the jury could well have found that petitioner’s negligence in waiting so long to have the test done cooperated to make a Maryland abortion impossible.

The jury obviously did not have to accept Dr. Borow’s refuted testimony that amniocentesis results can be obtained in seven days. That would leave, then, the question of an out-of-State abortion. Petitioner testified that she would have gone out of State, but the jury was not required to believe that she would, in fact, have traveled to a distant State, to an unknown doctor and with uncertain insurance coverage, to have an abortion or, indeed, that a decision on her part not to have an out-of-State abortion would have been unreasonable and would therefore suffice to preclude a finding of liability on Dr. Magat’s part. 11 In that circumstance, the findings of primary ¹³¹ and contributory negligence would not be inconsistent, as petitioner claims. It is not for petitioner, or for us, to speculate what specific facts the jury found or what conduct it found reasonable or unreasonable.

There clearly was sufficient evidence to make the issue of petitioner’s contributory negligence a jury issue, and the Circuit Court therefore did not err in denying her motion for judgment on that issue. Last Clear Chance Instruction Petitioner requested the court to instruct the jury on the doctrine of last clear chance. The requested instruction is not in the record extract, as it should be if it is to be an issue in the appeal, but it is, at least, in the record. Petitioner asked the court to instruct the jury that “[i]f the defendants could have avoided the incident or occurrence, then it is the defendants’ not the plaintiffs’ failure to act which was the proximate cause of the injuries and damages suffered.” The proposed instruction continued that the elements of the doc ¹³² trine were “1) the negligence of the defendants; 2) the contributory negligence of the plaintiff; and 3) something new or independent affording defendants a fresh opportunity to avert the consequences of defendants’ original negligence and plaintiffs’ contributory negligence.” The discussion regarding this proposed instruction occurred in chambers and was not recorded.

The record reveals only that the request was apparently a conditional one, in the event the court gave an • instruction on contributory negligence, which it did, and that petitioner objected to the court’s refusal to give this instruction. We do not know the argument presented to the Circuit Court in support of the instruction. The argument on appeal is that “even if the jury could have found that [petitioner’s] delay in obtaining the AFP test was a proximate cause of her inability to terminate her pregnancy, Defendant Magat still had the last clear chance to avert the incident by advising her of the abnormal result, to obtain amniocentesis, and allow her to terminate the pregnancy.” The trial court denied the instruction on the ground that it was not “appropriate in this case.” 'We agree. The proposed instruction, both as worded and in the context of this case, was not appropriate because it was potentially misleading.

The first sentence would have allowed the jury to use the primary negligence on the part of Dr. Magat that preceded or concurred in time with the contributory negligence on petitioner’s part to overcome that contributory negligence and render a plaintiffs verdict despite it. The second sentence simply states the three elements of the doctrine but does not attempt to relate them to the issues before the jury. 12 ¹³³ As noted, the jury could have found primary or contributory negligence from several different acts or omissions, most of which, in combination, would have made a last clear chance analysis inapplicable. Indeed, the only circumstance in which a last clear chance analysis might arguably be applicable was if the jury were to have found that the primary negligence consisted of Dr. Magat’s failure to be more diligent in following up with petitioner or the lab in obtaining the result of the AFP test, that that negligence concurred with petitioner’s negligent delay in having the test done, and that Dr. Magat was then further negligent in failing to call petitioner, or failing to give proper advice to petitioner, after he obtained the test result. That was not the thrust of petitioner’s argument regarding Dr. Magat’s primary negligence, however, which focused on her assertion that Dr. Magat never called her after he obtained the result, rather than any delay in obtaining the result.

If the jury credited that version of primary negligence, there would have been no subsequent negligence, no fresh ability to avoid the peril. In between those two versions were a variety of others that would not lend themselves to a last clear chance analysis — whether the referral for the AFP test was on April 19, as Dr. Magat indicated, or closer to May 16, as petitioner suggested, whether she would have chosen to terminate the pregnancy, as she testified, or not, as Dr. Magat testified, whether, even if under the impression that it was too late for an abortion, Dr. Magat nonetheless recommended genetic counseling and petitioner declined to get it. There was a smorgasbord of possibilities and, as to most of them, the instruction requested by petitioner was inapplicable and could only have been confusing. Count I — Ibrion’s Claim, The claim asserted in Count I, like that in Count II, falls within a cluster of tort actions that arise from the allegation ¹³⁴ that the negligence of some third person has caused a child to be born, either at all or with some defect or impairment.

These kinds of claims take many forms. The earlier and more traditional of them, brought either by the parents or on behalf of the child, were to recover damages for a prenatal injury actually caused to the child by the negligence of the defendant. The gravamen of the action is the injury so caused. We have long recognized, under general negligence principles, a postnatal action, on the part of both the child and his or her parents, for the negligent infliction of prenatal, in utero, injuries to the child.

See Damasiewicz v. Gorsuch, 197 Md. 417, 439-40 , 79 A.2d 550, 560 (1951) (child suffering from injuries inflicted prior to birth as result of automobile accident caused by negligence of defendant may sue for damages); State v. Sherman, 234 Md. 179, 184 , 198 A.2d 71, 73 (1964) (wrongful death action allowed for prenatal injuries to viable fetus that caused it to be stillborn). In Group Health Ass’n v. Blumenthal, 295 Md. 104, 119 , 453 A.2d 1198, 1207 (1983), we extended that principle to allow a wrongful death action on behalf of a child who, by reason of his mother’s physician’s negligence, was born alive but so prematurely as to be unable to survive. We characterized the action as one for injuries sustained by the child prior to viability. Id. at 116, 118 , 453 A.2d at 1206-07 .

The common theme in these cases is that, through negligent conduct, the defendant caused a specific harm to a child that, in turn, caused the child either to die or to suffer in some way, the only non-traditional feature being that the injury was inflicted while the child was still in útero. The actions now before us are of a type that were not and, as a practical matter, could not have been, brought before the last half of the Twentieth Century. At their core, they rest to a large extent on the more recent advances in medical and scientific knowledge that made contraception more practical and reliable and made potential fetal injuries and defects detectable prior to birth, and even prior to conception, coupled with the loosening of the fetters on abortions triggered in 1973 by Roe v. Wade, supra, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d ¹³⁵ 147. See Smith v. Cote, 128 N.H. 231 , 513 A.2d 341, 345-46 (1986).

As noted in Walker by Pizano v. Mart, 164 Ariz. 37 , 790 P.2d 735, 737 (1990), this newer variety of claims tends to fall into three general categories. The first, sometimes labeled “wrongful conception” or “wrongful pregnancy,” are brought by “parents of a normal but unplanned child [seeking] damages either from a physician who allegedly was negligent in performing a sterilization procedure or abortion, or from a pharmacist or pharmaceutical manufacturer who allegedly was negligent in dispensing or manufacturing a contraceptive prescription or device.” Walker, supra, 790 P.2d at 737 . The second, sometimes denoted as “wrongful birth,” consists of cases in which parents of a child born with birth defects allege that the negligence of prenatal health care providers or genetic counselors deprived them of the ability to abort the pregnancy because of the likelihood that the child would be born in an injured or impaired state. Id.

Those actions are by the parents to recover the damages and expenses accruing to them from having to endure and raise such a child. The third category, sometimes called “wrongful life,” comprises actions brought by, or on behalf of, the child. At least two types of claims fall within this category — claims by “normal but unwanted children who seek damages either from [their] parents [or from others] negligently responsible for their conception or birth,” and, as here, claims by impaired children asserting that, as a result of the defendant’s negligence, their parents were precluded from making a decision to abort the pregnancy. Id. at 737-38.

Although there is often some similarity or overlapping in the allegations of negligence that underlie these various kinds of claims, virtually every court has recognized some critical distinctions between the third category, of actions on behalf of the children, and the others. In Jones v. Malinowski, 299 Md. 257 , 473 A.2d 429 (1984), we recognized one branch of what some have referred to as a “wrongful birth” action, although in the Arizona construct, it ¹³⁶ would fall into the “wrongful conception” category. We concluded that, where a negligently performed sterilization results in the birth of a healthy child, the parents of the child could sue the doctor for the expense of raising the unplanned child during her minority, reduced by the value of the benefits conferred on them by having the child. Jones, supra, 299 Md. at 270 , 473 A.2d at 435 .

The issue there was not so much the substantive one of duty, breach, and causation as of how to calculate damages and whether, indeed, they were calculable. We concluded that a cause of action in tort for medical negligence in the performance of a sterilization procedure was well accepted, but that some courts had declined to require the negligent physician to bear the costs of raising the child, as that “would permit the parents to enjoy all the benefits of parenthood while shifting the entire financial burden to the tortfeasor — a burden out of proportion to the physician’s culpability.” Id. at 264 , 473 A.2d at 432 . That problem was addressed by the reduction mandated for benefits derived by the parents from the parent-child relationship. We were careful to note in Jones that the injury to the parents of a normal child was not the child itself and that “damages are not sought on the