Mid-Atlantic Health Law TOPICS

Earlier this year, in Kassama v. Magat, the Maryland Court of Special Appeals, Maryland's intermediate appellate court, concluded that a cause of action for "wrongful life" should not be recognized in Maryland. In so doing, the court rejected a claim brought on behalf of an infant born with Down's Syndrome. The infant had alleged that his mother's doctor negligently failed to order an amniocentesis, which would have disclosed that her fetus had Down's Syndrome, in time for the mother to obtain a legal abortion. A cause of action for "wrongful birth" or "wrongful life" allows the recovery of damages against a doctor whose negligence results in the unwanted birth of a child. Such suits frequently arise from allegations that a woman became pregnant as a result of a physician's negligence in performing a sterilization procedure, or that the physician failed to diagnose a pregnancy or failed to inform parents that their child might be born deformed in time to permit the mother's termination of the pregnancy. A "wrongful birth" cause of action is brought on behalf of the parents. In contrast, a "wrongful life" claim is brought by or on behalf of a child born with a defect when negligent medical treatment deprived the child's parents of the option to terminate the pregnancy and avoid the birth. Although most jurisdictions, including Maryland, recognize the tort of wrongful birth in some form, most jurisdictions that have considered the issue have refused to recognize a cause of action for wrongful life. The Court of Special Appeals, in Kassama v. Magat, found the reasoning of the courts that have refused to recognize wrongful life claims to be persuasive. Since a cause of action for wrongful life calculates damages based on a comparison between life in an impaired state and no life at all, which the court deemed to be an impossible task, the Maryland court declined to recognize such a cause of action. Maryland's highest appellate court has recently agreed to review this case, and a decision is expected in 2002.