Reed v. Campagnolo

RODOWSKY, Judge. This case of alleged medical malpractice comes to us from the United States District Court for the District of Maryland, pursuant to the Maryland Uniform Certification of Questions of Law Act (the Act), Md.Code (1974, 1989 RepLVol.), §§ 12-601 through 12-609 of the Courts and Judicial Proceedings Article (CJ). The certified questions are: “i. Whether the State of Maryland recognizes a tort cause of action for wrongful birth when the doctor does not inform the patient about an available diagnostic test which might reveal the possibility of neural tube defects of the fetus, when these defects are genetically caused, when further diagnostic testing would be required to determine the nature and extent of any fetal defects, and when the plaintiff asserts she would have aborted the child had she been made aware of the fetus’s deformities. “ii.

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 when the allegedly negligent course of treatment is the defendant physician’s failure to inform a pregnant patient about the availability, risks and benefits of diagnostic testing which might reveal birth defects, and failure to inform the patient about the benefits and risks associated with aborting a severely deformed fetus.” Reed v. Campagnolo, 810 F.Supp. 167, 172-73 (D.Md.1993). Under the Act, this Court considers “only questions of state law, not questions of fact.” Mercantile-Safe Deposit & Trust Co. v. Purifoy, 280 Md. 46, 54 , 371 A.2d 650, 655 (1977). We will not “evaluate or weigh the evidence, but instead [will] accept the statement of facts submitted by the certifying court.” Food Fair Stores v. Joy, 283 Md. 205 , 219 n. 7, 389 A.2d 874 , 882 n. 7 (1978). The Act ‘“does not ²²⁹ authorize [this Court] to go beyond the questions certified in the order of the certifying court.’ ” Toll v. Moreno, 284 Md. 425, 437 , 397 A.2d 1009, 1015 (1979) (quoting Krashes v. White, 275 Md. 549, 557 , 341 A.2d 798, 802 (1975)); see also Public Serv.

Comm’n v. Highfield Water Co., 293 Md. 1, 10 , 441 A.2d 1031, 1035 (1982). Plaintiffs, Tina Smedley Reed and Frederick E. Reed, seek damages against defendants, Mary Campagnolo, M.D. and Bruce Grand, M.D. Defendants rendered prenatal care to Mrs. Reed and her unborn child at a Caroline County Health Department maternity clinic beginning in January 1986, the third month of Mrs. Reed’s pregnancy. 1 The essence of the Reeds’ allegations are “that defendants failed in the course of pre-natal care to ‘inform plaintiffs of the existence or need for routine [afetoprotein] (“AFP”) testing of maternal serum to detect serious birth defects such as spina bifida and imperforate anus.’ Had they been informed about AFP testing they would have requested it. Had such testing been done, it would have revealed elevated protein levels, indicative of an abnormal fetus, which would have led plaintiffs to request amniocentesis. Amniocentesis, claim plaintiffs, would have revealed the extent of the fetus’s defects and plaintiffs ultimately would have chosen to terminate the pregnancy.” Reed, 810 F.Supp. at 169 (references to complaint omitted). “The parties agree Mrs. Reed was never informed about AFP testing, a procedure which reveals abnormal levels of ²³⁰ proteins produced by the fetus.

Abnormal protein levels may indicate genetically caused neural tube defects, including spina bifida. This test must be performed between weeks 16 and 18 of the pregnancy to obtain reliable results.” Id. (footnotes omitted). “The [Reeds’] child, Ashley Nicole, suffers from a variety of genetically caused abnormalities, including meningomyelocele (spina bifida), hydrocephaly, imperforate anus, and ambiguous genitalia. The infant also has only one kidney, a fistula connecting her bladder and intestines, and increased head circumference, which required the insertion of a cerebral-abdominal shunt after birth.” Id. at 168 (references to complaint omitted).

In August 1989 the plaintiffs and Ashley Nicole made claim through the Health Claims Arbitration Office under the Maryland Health Care Malpractice Claims Act, CJ §§ 3-2A-01 through 3-2A-09. Thereafter, the parties waived arbitration, see CJ § 3-2A-06(A), and in February 1991 the plaintiffs filed their complaint with the United States District Court. Initially that complaint contained three counts, described by the federal court as follows: “Count I (Wrongful Birth) alleges negligent failure to inform the parent plaintiffs about the existence, benefits, and risks of AFP testing, amniocentesis, and abortion of a severely deformed fetus, and negligent failure to recognize and evaluate the signs and symptoms of an abnormal pregnancy. “Count II (Lack of Informed Consent) alleges failure to inform the parent plaintiffs about the various risks of birth defects, testing procedures for birth defects, and the option of aborting a severely deformed fetus. “Count III (Third Party Beneficiary Maintenance After Age of Majority) alleges a duty owed to all plaintiffs, including the baby, to inform about risk of birth defects, ²³¹ tests available to detect defects, and the option of abortion of a severely deformed fetus.” Reed, 810 F.Supp. at 169 . The plaintiffs subsequently abandoned Count III, which the federal court had read as undertaking to allege “a cause of action for wrongful life.” Id. at 169 .

I The first certified question asks whether the claim alleged in Count I of the complaint states a cause of action under Maryland law. The allegations undertake to state what has been called a “wrongful birth” claim. W.P. Keeton, Prosser & Keeton on the Law of Torts § 55, at 370 (5th ed. 1984), succinctly states the background and context of this theory of liability. “The last couple of decades have witnessed the rapid development of tort claims concerning a variety of issues that arise when the tortfeasor’s act or omission results in the birth of an unwanted child. The defendants in these cases are typically doctors charged with negligence in failing directly to prevent the conception or birth of the child, as by negligently performing a sterilization or abortion procedure, or in failing to diagnose or inform the parents that the child might be born deformed — because of a disease contracted by the mother or a genetic condition in one of the parents— in time to permit the termination of the pregnancy.

These actions are now generally referred to as ‘wrongful birth’ claims, when brought by the parents for their own damages, and ‘wrongful life’ claims, when brought by or on behalf of the child for the harm of being born deformed.” (Footnote omitted). The issue presented by the first certified question is whether the claim is simply a traditional negligence claim, as the Reeds contend, or whether the claim fails to withstand traditional tort analysis, as the defendants contend. If the latter, then the defendants submit that this Court should not recog ²³² nize it as a new tort, but rather should defer to the General Assembly. In Jones v. Malinowski, 299 Md. 257 , 473 A.2d 429 (1984), we affirmed a judgment entered against a physician who, when undertaking to perform a bipolar tubal laparoscopy, misidentified the left Fallopian tube and cauterized the wrong structure.

Id. at 260 , 473 A.2d at 430 . Citing numerous cases, we recognized as “well accepted” the proposition “[t]hat there is a cause of action in tort based upon traditional medical malpractice principles for negligence in the performance of a sterilization procedure.” Id. at 263 , 473 A.2d at 432 . There the unplanned pregnancy resulted in the birth of a normal child. The principal issue in Jones was the measure of damages.

We concluded that the trier of fact would be permitted “to consider awarding damages to parents for 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. at 270 , 473 A.2d at 435 . We thus recognized that there could be compensable injury to parents when a child is born as a result of medical negligence. In the case now before us the alleged negligence of the physicians occurred after Mrs. Reed was pregnant and consists of a failure to offer or perform certain tests that “would have revealed the severe and irreversible birth defects of’ Ashley Nicole. Brief of Appellants at 8, Complaint ¶ 28.

The plaintiffs then aver that “Reasonably prudent prospective parents in similar circumstances, faced with the knowledge of severe birth defects such as those described above would have seriously considered and ultimately chosen termination of pregnancy at a stage safe to the mother.” Id., Complaint ¶ 31. Although Jones v. Malinowski is not directly controlling, we shall apply here the same “traditional medical malpractice principles for negligence” analysis that was applied there. 299 Md. at 263 , 473 A.2d at 432 . “[T]he burden of proof in a malpractice case is on the plaintiff to show a lack of the requisite skill or care on the part of the physician and that such want of skill or care was ²³³ a direct cause of the injury____ General rules of negligence apply to malpractice cases, as well as to ordinary claims of negligence. Therefore, ‘to constitute actionable negligence, there must be not only causal connection between the negligence complained of and the injury suffered ... but it must be the proximate cause.’ ” Suburban Hosp. Ass’n v. Mewhinney, 230 Md. 480, 484-85 , 187 A.2d 671, 673 (1963) (quoting State ex rel.

Kalives v. Baltimore Eye, Ear & Throat Hosp., 177 Md. 517, 527 , 10 A.2d 612, 616 (1940)); see also Johns Hopkins Hosp. v. Genda, 255 Md. 616, 620, 622 , 258 A.2d 595, 598, 600 (1969). Simply put, have we here a duty, a breach of that duty, and an injury proximately caused by the breach? There is no dispute that the defendant physicians owed a duty of care to Mrs. Reed. “[A] physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account.” Shilkret v. Annapolis Emergency Hosp., 276 Md. 187, 200-01 , 349 A.2d 245, 253 (1975); see also Nolan v. Dillon, 261 Md. 516, 534 , 276 A.2d 36, 46 (1971); Anderson v. Johns Hopkins Hosp., 260 Md. 348, 350 , 272 A.2d 372, 373 (1971); Johns Hopkins Hosp. v. Genda, 255 Md. 616, 620 , 258 A.2d 595, 598 (1969).

That duty, initially, also applied to the unborn child. See Group Health Ass’n v. Blumenthal, 295 Md. 104 , 453 A.2d 1198 (1983) (action for wrongful death of non-viable fetus, born alive, allowed); State ex rel. Odham v. Sherman, 234 Md. 179 , 198 A.2d 71 (1964) (action for wrongful death in utero allowed); Damasiewicz v. Gorsuch, 197 Md. 417 , 79 A.2d 550 (1951) (post-birth action for in útero injury allowed). ²³⁴ Subsidiary to the concept of duty is whether, under the particular circumstances of the instant matter, the standard of care was violated. The defendant physicians contend that it was not, but that is a matter of proof that is not before us on these certified questions.

If the applicable standard of care required that the AFP and amniocentesis tests be offered or performed, that standard was violated, because it is undisputed that the tests were not offered or performed. If the standard of care contended for by the Reeds had been fulfilled by the defendant physicians, and if Mrs. Reed had determined to terminate the pregnancy by abortion because of genetic defects revealed by the tests, then the defendants’, or any successor or consulting physicians’, common law duty of care to the unborn child would have been overridden by the former Maryland abortion statute. 2 At the time of the negligence alleged here, that statute provided in relevant part: “A physician licensed by the State of Maryland may terminate a human pregnancy or aid or assist or attempt a termination of a human pregnancy if said termination takes place in a hospital accredited by the Joint Commission for Accreditation of Hospitals and licensed by the State Board of Health and Mental Hygiene and if one or more of the following conditions exist: “(3) There is substantial risk of the birth of the child with grave and permanent physical deformity or mental retardation....” Md.Code (1982, 1990 Repl.Vol.), § 20-208(a) of the Health-General Article (HG). 3 ²³⁵ The links in the chain of causation alleged by the Reeds, if supported by the evidence and believed by the trier of fact, constitute proximate cause. The first link in. that chain, the alleged failure of the defendants to advise concerning the availability in the medical community of AFP testing and its purpose, connected to the next link, requiring a fact-finding that the testing would have been done, and so forth, through to abortion, present a form of proximate cause reasoning that is analogous to that applied in informed consent cases. See Sard v. Hardy, 281 Md. 432, 450-51 , 379 A.2d 1014, 1024-25 (1977).

Plaintiffs in these cases must prove causation in the sense that they must convince the fact finder that they would in fact have acted as alleged, had the information concerning testing been made available. 4 In the instant matter the Reeds have alleged this causal nexus. We now consider legal injury. The clear majority of courts that has considered the type of medical malpractice case alleged by the Reeds has concluded that there is legally cognizable injury, proximately caused by a breach of duty. See Robak v. United States, 658 F.2d 471 (7th Cir.1981) (applying Alabama law); Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981) (applying South Carolina law); Lininger v. Eisenbaum, 764 P.2d 1202 (Colo.1988); Garrison v. Medical Center of Delaware, Inc., 581 A.2d 288 (Del.1990); Haymon v. Wilkerson, 535 A.2d 880 (D.C.1987); Kush v. ²³⁶ Lloyd, 616 So.2d 415 (Fla.1992); Moores v. Lucas, 405 So.2d 1022 (Fla.Dist.Ct.App.1981); Blake v. Cruz, 108 Idaho 253 , 698 P.2d 315 (1984); Siemieniec v. Lutheran Gen.

Hosp., 117 Ill.2d 230 , 111 Ill.Dec. 302 , 512 N.E.2d 691 (1987); Arche v. United States, 247 Kan. 276 , 798 P.2d 477 (1990); Viccaro v. Milunsky, 406 Mass. 777 , 551 N.E.2d 8 (1990); Proffitt v. Bartolo, 162 Mich.App. 35 , 412 N.W.2d 232 (1987); Smith v. Cote, 128 N.H. 231 , 513 A.2d 341 (1986); Berman v. Allan, 80 N.J. 421 , 404 A.2d 8 (1979); Becker v. Schwartz, 46 N.Y.2d 401 , 413 N.Y.S.2d 895 , 386 N.E.2d 807 (1978); Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975); Naccash v. Burger, 223 Va. 406 , 290 S.E.2d 825 (1982); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460 , 656 P.2d 483 (1983); James G. v. Caserta, 175 W.Va. 406 , 332 S.E.2d 872 (1985); Dumer v. St. Michael’s Hosp., 69 Wis.2d 766 , 233 N.W.2d 372 (1975). Contra Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711 , 398 S.E.2d 557 (1990); Wilson v. Kuenzi, 751 S.W.2d 741 (Mo.1988); Azzolino v. Dingfelder, 315 N.C. 103 , 337 S.E.2d 528 (1985). 5 Although the majority of courts addressing the issue has recognized the form of medical malpractice asserted by the Reeds, those courts are not in agreement on the measure of damages. 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.

See Phillips v. United States, 508 F.Supp. at 551 (“While it would be premature to demarcate the ultimate limits of ‘wrongful birth’ damages at this stage in ²³⁷ the litigation, ‘[b]ecause at least some damages are cognizable at law, the motion for judgment on the pleadings may not be granted for lack of damages.’ ” (Citation omitted)). The principal contentions of the defendant physicians turn on how one conceptualizes the tort alleged by the Reeds. Highly relevant to that consideration are the observations by the Supreme Judicial Court of Massachusetts concerning the terminology, “wrongful life,” “wrongful birth,” and “wrongful conception.” “These labels are not instructive. Any ‘wrongfulness’ lies not in the life, the birth, the conception, or the pregnancy, but in the negligence of the physician.

The harm, if any, is not the birth itself but the effect of the defendant’s negligence on the [parents] resulting from the denial to the parents of their right, as the case may be, to decide whether to bear a child or whether to bear a child with a genetic or other defect.” Viccaro v. Milunsky, 551 N.E.2d at 10 n. 3. The defendants’ basic argument is that the Reeds have not suffered any legally cognizable injury. The argument adopts the analysis of the majority of the Supreme Court of North Carolina in its four-three decision in Azzolino v. Dingfelder, 377 S.E.2d 528 . That court said: “Courts which purport to analyze wrongful birth claims in terms of ‘traditional’ tort analysis are able to proceed to this point [ie., injury] but no further before their ‘traditional’ analysis leaves all