Lab Corp v. Hood
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IN THE COURT OF APPEALS OF MARYLAND Misc. N o. 1 September Term, 2006 ______________________________________ LABORATORY CORPORATION OF AMERICA, ET AL. v. KAREN HOOD, ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: December 1, 2006 We have before us three questions of law certified by the United States District Court for the District of Maryland pursuant to the Maryland Uniform Certification of Questions of Law Act (Maryland Code, §§ 12-601 through 12-613 of the Cts. & Jud. Proc. Article). The questions arise from an action by Karen and Scott Hood, Maryland residents, again st two North Carolina corporations Laboratory Corporation of America and Laboratory Corpo ration o f Am erica H olding s, whic h we s hall refe r to colle ctively as L abCo rp. The action is one that is often , but mis leading ly, denom inated a s wro ngful b irth. The Hoods complain that the defendants were negligent in misreading a chromatograph of the DNA from an amniotic fluid specimen extracted fr om M s. Hood a nd errone ously reporting that the fetus was not likely to be affected by cystic fibrosis (CF). Relying on the erroneous report, Ms. Hood elected to continue with the pregnancy, and that resulted in the birth of their son, Luke, who does have CF. The Hoods now seek to recover damages for the cost of raising and caring for Luke. The questions certified to us are: 1. In a case where a medical laboratory receives a specimen from a Maryland physician and erron eously interprets th e specime n in anothe r State, causing injury in Maryland to Maryland residents, should this court follow the standard of care exception in the R ESTATEMENT (F IRST) OF C ONFLICTS OF L AW § 380(2) a nd apply the substantive law of the State where the erroneous interpretation took place? 2. Does denying Maryland residents the right to bring a wrongful birth action by applying North Carolin a law violate the public policy of the State of Maryland? 3. Where a laboratory analyzes a moth er s amniocentesis specimen and the results are provided to the mother s physician, but relied upon by both parents, does the laboratory have a sufficient relationship with the father that gives rise to a duty of care? The problem u nderlying the f irst two certifie d question s, and to some extent the third, is that, while Maryland recognizes an action of this kind by the parents, North Carolina apparently does not, and the District Court, which must apply Maryland law, including the Maryland law on conflicts of law, desires to know whether, in the situation at hand and if the action were filed in a Maryland court, we would apply the substantive law of Maryland, where the injury occurred, or of North Carolina, where the negligent acts or omissions took place. We cannot answe r the third question precisely as presented, for to do so m ight require us to assume certain subsidiary facts that are for th e District Co urt to resolve, b ut we sha ll respond in the most helpful way that we can. T he basic fa cts underlying these questions are set forth by the District C ourt in its Certification Order and in its Memorandum responding to cross mo tions for sum mary judgm ent. The Hoods are Maryland residents. Their first child, Zachary, was born in 1997 and was diagnosed with CF when he was two. In the p resent state of medical science, persons with CF are doomed to suffer from lung, gastrointestinal, pancreatic, heart, and other organ diseases, and rarely live beyond their mid-30s. In order to develop CF, a child must receive a particular ge ne mutatio n from b oth parents . After Zachary was diagnosed, the Hoods learned that they both carry the recessive delta F508 gene mutation that causes one of the most severe forms of CF. Because they are both carriers of that mutation, each of Karen s -2- pregnancies carries a 25% risk of the child having CF. In 1999, Ms. Hood became pregnant again, and she and her husband were referred by Ms. Hood s obstetrician to a genetic counselor. Genetic testing performed on the fetus revealed that it had CF, whereu pon Ms. H ood terminated the pre gnancy. In August, 2001, she became pregnant the third time and again decided to have the fetus tested. The Hoods had already made the decision to terminate the pregnancy if the fetus tested positive for CF. On November 27, 2001, M s. Hood had an amniocentesis performed, in Maryland, by her obstetrician, T homas P inkert. LabCorp operates a nationwide network of 35 primary testing locations and more than 1,100 patient service centers, eight of which are located in Maryland . Although it receives specimens from ph ysicians and fro m its various patient service centers throughout the country, LabCo rp perform s all of its gene tic testing on a mniotic fluid at its Center for Molecular Biology and Pathology in North Carolina. The com pany marke ts genetic testing services to couples such as the Hoods. Before the specimen taken from Ms. Hood was sent to LabCorp for testing, the Hoods gen etic counselor, Amy K imball, who wo rked in Dr. Pinkert s office in M aryland, inform ed LabC orp that both Karen and Scott Hood carried the CF gene. The sample was sent to the LabCorp facility in North Carolina, where the DNA in it was subjected to a chromatograph that was analyzed by two LabC orp employees, M arcia Eisenberg and Nicholas Brown. In conformance with the analysis done by Eisenberg and Brown, LabCorp reported -3- to Dr. Pinkert that, although both parents were carriers of the delta F508 mutation, the amniotic fluid was negative for 31 common CF genetic mutations, and [t]his fetus is not expected to be a carrier of cystic fibrosis or be affe cted by cystic fibrosis. Pinkert sent the report to the Hoods. Based on the LabCorp report, the Hoods elected to continue the preg nancy, resulting in the birth of Luke on M ay 3, 2002. Three mo nths later, the child was found to be positive for CF . In September, 2002, LabCorp issued a corrected report which noted that the original chromatograph did, indeed, demonstrate that the fetus was positive for the delta F508 mutation that causes CF the box containing the word del F508" was marked with an asterisk, indicating that the fetus had CF and stated that Eisenberg and Brown had misread the chromatograph. The District Court issued a partial ruling on the cross-motions for summa ry judgment. In that ruling, the court held that, under Maryland law, the Hoods action was for negligence, not breach of contract, and that the Maryland law o f negligence therefore applied. The court observed that, in diversity cases, such as the one at hand, it was obliged to apply M aryland s choice of law rules and determined that Maryland adheres to lex loci delicti principles fo r all tort claims, i.e., we apply the law of the place where the tort or wrong w as committed. It concluded that, under our application of those principles, the place where the last event required to give rise to the tort occurred determines the law that should apply, that in personal injury claims the last event required to give rise to the tort is the injury, and that the injury in this ac tion occ urred in Marylan d, whe re Luk e was b orn. -4- LabCorp asserted in the District Court that, even if lex loci delicti principles apply, the court should recognize the exception to those principles enunciated in R ESTATEMENT (F IRST) OF C ONFLICT OF L AWS, § 380(2). Section 380(2) states: Where by the law o f the plac e of t he w rong , the l iabil itycreating character of the actor s conduct depends upon the application of a standard of care, and such standard has been defined in particular situations by statute or judicial decision of the law of the place of the actor s conduct, such application of the stan dard w ill be ma de by the forum . Labcorp s argument was that its potential liability flows from the issuance of the erroneous report by Eisenberg and Brown, that any breach of the standard of ca re therefore occurred in North C arolina, and that, under § 380(2), N orth Caro lina law sho uld dictate whether those employees breached a duty owed to the Hoods. Labcorp posited, and the court acknowledged, that the U.S. Court of Appeals for the Fourth Circuit had assumed that Maryland would recognize the § 380(2) exception in negligence cases. S ee Farwell v. Un, 902 F.2d 282 (4 th Cir. 1990). The District Court pointed out, however, that this Court had never determined whether that exception should apply, and that is what led it to certify the first question. Whether Maryland or North Carolina law applies is critical to the Hoo ds case. In Azzolino v. Dingfelder, 337 S.E.2d 528 (N.C. 198 4), the Nor th Carolina Suprem e Court he ld that the parents of a child born with ev en severe b irth defects d id not suff er any legally cognizab le injury, and thus the Hoods action could not succeed under North Carolina law. In Reed v. C ampag nolo, 332 Md. 226, 630 A.2d 1145 (1993), responding to a certified -5- question from the U.S. District Court, we adopted a completely opposite point of view, noting that [t]he Azzolino analysis does not recognize even the economic impact on the parents and, in that resp ect, is con trary to M aryland la w. Id. at 238, 630 A.2d at 1151. That divergence forms the basis of the s econd certified questio n. If application of R ESTATEMENT § 380(2) would ordinarily cause North Carolina law to be applicable in this case, w ould Maryland nonethele ss refuse to apply that law on the ground th at it would b e contrary to Maryland public polic y to deny a Maryland resident, suing in a Maryland court for a wrong committed in Maryland, a remedy recognized in this State. Fina lly, for our purposes, LabCorp contend ed that, even if Maryland law we re to apply, that law would provide a remedy only to Karen, not to her husband, Scott that the decision whether to terminate the preg nan cy was Kar en s alo ne and that, in an y event, a physician s duty runs only to his or her patient and the physician owes no cognizable d uty to a patient s spouse. Uncertain whether our decisio n in Dehn v. Edgecomb, 384 Md. 606, 865 A.2d 603 (2005) would preclude a cause of action by Scott, the cou rt certified the third question. Standard of Care Exception in RESTATEMENT § 380(2) Unlike most other States, which have abandoned the lex loci delicti approach espoused in §§ 378-390 of the RESTATEMENT (F IRST) OF C ONFLICT OF L AWS in favor of the significant contacts test enunciated in §§ 6, 145, and 146 of the R ESTATEMENT (S ECOND) -6- OF C ONFLICT OF L AWS, Maryland continues to adhere generally to the lex loci delicti principle in tort cases. U nder that ap proach, w here the ev ents giving rise to a tort action occur in more than one State, we apply the law of the State where the injury the last event required to constitute the tort occurr ed. See Philip M orris v. Ang eletti, 358 Md. 689, 744-47, 752 A.2d 200, 230-32 (2000); Hauch v. Connor, 295 Md. 120, 123-25, 453 A.2d 1207, 1209-10 (1983); White v. King, 244 M d. 348, 3 52, 223 A.2d 7 63, 765 (1966 ). In maintaining our allegiance to the lex loci delicti approach, we have con tinued to follow the principles stated in the R ESTATEMENT (F IRST) OF C ONFLICT OF L AWS. See Philip Morris, supra, 358 Md. at 745, n.25, 752 A.2d at 231, n.25, confirming the observation of the Court of Special Appeals in Black v. Leatherwood, 92 Md. App. 27, 41, 606 A.2d 295, 301, cert. den ied, 327 Md. 626, 612 A.2d 257 (199 2) that [b]e cause M aryland is among the few states that continue to adhere to the traditional conflict of laws principle of lex loci delicti, the First Res tatement of Conflict of Laws, while of merely historical interest elsewhere, continues to provide guidance for the determination of lex loci delicti questions in Maryland. Our articulation of the doctrine mirrors that of the initial version of the R ESTATEMENT, and we have often cited to that work as authority for our holdings. Section 380 is part o f the series of sections articulating the doctrine. Section 377 defines the place of wro ng as the place w here the last event necessary to make an actor liable for an alleged tort takes place, w hich in this case, as the District Court co rrectly determined, is Maryland. Section 378 declares that the law of the place of wrong determines -7- whether a person has sustained a legal injury; § 379 makes that law determinative of whether a person is responsible for unintended harm; § 383 applies that law in determining causation; § 385 applies that law in d etermining whethe r contributory negligence preclude s recovery in whole or in part; § 386 applies that law with respect to the fellow servant rule; § 387 applies it in de termining v icarious liability; § 388 app lies it to defense s; § 390 ap plies it to wheth er an ac tion surv ives the death o f the tor tfeasor or the in jured p erson. In this mix is § 380, which deals with standard of care. Section 380(1) states the general rule that where by the law of the place of wrong, the liability-creating character of the actor s con duct depends upon the application of a standard of care, the application of such standard will be made by the forum in accordance with its own rules of evidence, inference and judgment. In other words, the substantive standard o f care to be applied is that of the place of wrong, but its application to the facts presented to the forum co urt is to be determined in accordance with the rules of evidence, inference, and judgment of the forum State. Section 380(2 ) carves out a lim ited exc eption to that rule. If, under the law of the place of wrong, the liability-creating character of the actor s conduct depends upon the application of a standard of care and such standard has been defined in particular situations by statute or judicial decision of the law of the place of the actor s conduct, such application of the s tandard will be m ade by th e forum . (Em phasis a dded). These principles are clarified in two c omm ents to § 380. Comment a., which explains the general principle in § 380(1), be gins by recalling that, under th e rule stated in § 379, the -8- liability-creating character of the actor s conduct is determined by the law of the place of wrong. The comment then notes the obvious proposition that, where the law of the place of wrong prescribes a standard of care by which the actor s conduct is to be judged, the application o f such stan dard to the f acts in a particular c ase must n ecessarily be m ade b y a fact-finding body at the forum in accordance with local procedure. Thus: [I]f the general standard of the conduct of a reasonable man has not been defined by statute or judicial decisio n of the [S ]tate of acting, the question whether the actor s conduct is negligent is decided by the forum in accorda nce with its own rules of evidence, inferen ce and judgm ent. Negligence is lack of due care under the circumstances; and what care should be given under certain circumstances is a que stion for adjudication in each particul ar case. The tribunal at the forum will decide this question and will not be influenced by the fact that another court, even the court of the [S]tate where a defendant acted, would have come to a diffe rent con clusion on the f acts pro ved. Comment b., captioned Negligence per se and breach of statutory duty, explains the exception in § 380 (2): If, by the law of the p lace of the acto r s cond uct, the general standard of due care has been defined by judicial decision so as to pronou nce certain conduct, a s specific acts or omissions, to be or not to be negligent, the forum will apply the sta ndard in the same ma nner although under th e local law th e case wo uld have been for the judgment of the jury on the facts in question. So too, if by statute or othe r legislative ena ctment of the [S]tate of the actor s conduct the general standard of due care has been narrowed in a particular situation, the forum will make a similar application of the standard of care although under the local law the case would have been one for the jury because no such statute th ere exis ted. (Emphasis add ed). -9- As explicated in these com ments, for a State that follows the lex loci delicti rule, both the general provision in § 380(1) and the limited exception in § 380(2) make perfectly good sense. If the standard of care under the law of the place of acting is simply that of reasonableness, either general reasonableness or reasonableness for a person in the defendant s position, and there is no more particular guidance under that law with respect to the application of that standard to the facts at hand, the forum court would have to determine from the facts presented to it and in accordance with its own procedures whether that standard has been met. If, on the other hand , the State w here the ac ts were committed has determined, either by judicial decision or statute, that a person who commits those acts either has, or has not, breached the applicable standard of care and therefore either is, o r is not, negligent as a matter of law, the forum court must act in conformance with that judicial decision or statute, even if its own law , or the law o f the place o f wrong , is different. 1 LabCorp suggests an unfairness to that approach, but we perceive no unfairness. A person who co mmits a tort in another State should, as a general rule, be liable in accordance with the law of that State where the harm was done. The narrow exception, that requires 1 In this case, because Maryland is both the place of wrong and the locus of the forum court, there are only two options Maryland law or North Carolina law. In other settings, the forum court could be in a third State, in which event, assuming a lex loci delicti approach and but for § 380, the law of three States could be put in play. In that situation, the forum court would generally apply Maryland law (law of the place of wrong) except that, for purposes of applying the applicable standard of care, would look to its own law unless North Carolina, by statute or judicial decision, had declared the conduct at issue to constitute or not constitute a breach, in which event it would apply that aspect o f Nort h Caro lina law . -10- looking to the law of the State where the conduct was committed, applies only where the existence and nature of the duty or its breach depends on a standard of care and that State, by statute or judic ial ruling, has d efined the particular co nduct as either complying or not complying with the applicable standard of care. The exception gives deference to the notion that, where the law of the place of conduct is so clear and particular, persons in that place have a right to rely on that law and should not suffer adverse consequences for conforming their condu ct to it. Acc ordingly, our specific answer to the first certified question is that, where applicable, Maryland does recognize and wo uld apply § 380(2) of the R ESTATEMENT (FIRST). The question, as framed, is somewhat broader th an that, however. It asks whether the District Court should follow the standard of care exception in § 380(2) and apply the substantive law of the state where the erroneous interpretation took place. That aspect of the question assumes th at, if Maryland would adopt § 380(2), the substantive law of N orth Carolin a wou ld apply. That is n ot nece ssarily the c ase. We would apply North Carolina law only if and to the extent that such law, by statute or judicial decision, specifically determines the effect of applying the applicable North Carolina standard of care to the facts at h and. If there is a statute or judicial decision in North Carolina that would dictate whether the conduct of LabCorp, through its employees, did or did not breach the applicable standard of care, we would, subject to our conclusion with respect to the second certified question, act in -11- conformance with that statute or judicial decision; otherwise, as both the forum State and the place of wrong, we would apply Maryland law. The submissions of counsel to us do not indicate that there is an y North Carolina statute on point. The only question is whether the holding in Azzolino v. Dingfelder, supra, 337 S.E.2d 528, constitutes a judicial determination that LabCorp s conduct does not violate the ap plicable stand ard of care in North Carolina. That is ultimately for the District Court to determine, but, because the solicitation of our view is implicit in the certif ied que stion, we shall note that our reading of Azzolino indicates that it does not constitute such a determination. The complaint in that case was that a physician who provided prenatal care to a pregnant woman neglected to inform her about the availability of amniocentesis and genetic counseling, which would have revealed that her fetus was afflicted with Down s Syndrome. In response to the parents action for wrongful birth, the North Carolin a court a ssume d, arguendo, that the defendants owed the plaintiffs a duty and that they breached that duty. Id. at 533. The court also as sumed that the child s birth was th e proxi mate re sult of th e defe ndants neglig ence. Id. The court denied reco very, however, because it was unwilling to recognize that any legally cognizable injury had occurred: we are unwilling to say that life, even life with severe defects, may ever amount to a legal injury. Id. at 534. Because the court assumed that there was a duty and breach, it never addressed the standard of care issue, in any contex t, but decided the case ba sed solely on the lack of injur y. That is not a § 380 issue. Under § 378 of the R ESTATEMENT (F IRST), [t]he law of the place of wrong [Maryland] determines whether a person has sustained a -12- legal inju ry. Maryland Public Policy We have not previously applied a public policy exception to the lex loci delicti doctrine, although our case law strongly indicates that we would do so in a proper case. We have long recognized, and have on occasion applied, such an exception under analogous lex loci principles and have implicitly recognized the exception in a tort action subject to lex loci delicti. In breach of contract actions, this Court has traditionally applied the doctrine of lex loci contractus, under which, in deciding upon the validity and construction of a contract, we generally apply the law of the place where the contract was made. We have just as consistently held, however, that the lex loci contractus principle is no t inflexible an d that it does not apply to a contract provision which is against Maryland public policy. Bethlehem Steel v. G.C. Zarnas & Co., 304 Md. 183, 188, 498 A.2d 605, 608 (1985) and cases cited there. We cautioned in Bethlehem Steel that merely be cause M aryland law is d issimilar to the law of another juris dicti on does n ot render the latter con trary to M arylan d public p olicy and that for another state s law to be unenforceable, there must be a strong public policy against its enforcement in Ma ryland. Id. at 189, 498 A.2d at 608, quoting in part from Texaco v. Vanden Bosche, 242 Md. 3 34, 340 -41, 21 9 A.2d 80, 84 ( 1966) . See also National Glass v. J.C. Penney, 336 Md. 606 , 650 A.2d 246 (1994). -13- In Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969) and Hauch v. Connor, supra, 295 Md. 120, 453 A.2d 1207, we applied a public policy exception in the context of workers compensation statutes, which we recog nized had some aff inity to contract and tort principles but were sufficiently different from both to be considered separately. The issue in those cases was whethe r Maryland would a llow a fello w-emp loyee action a n action im plicitly permitted under the Maryland workers compensation law but not permitted under the law where the parties were employed (Hutzell) or where the accident occurred (Hauch). In Hutzell, although the parties were temporarily employed in Virginia, the employment-related accident occurred in M aryland and the parties were both residents of Maryland. In rejecting application of the Virginia law, which otherwise would have been required, the Court observed that Maryland had a genuine interest in the welfare of a person injured within its borders, who may conceivably become a public charge due to a disabling injury and that [t]he social and economic problems following in the wake of a serious injury as they may affe ct the depen dents of the person injured are proper ly matters of pu blic conce rn. Hutzell, 252 Md. at 233, 249 A.2d at 452. The Hauch court regarded that as a public policy exception and applied that exception to the situation in which the co-employees were residents of and employed in Maryland but where the accident occurred in Delaware. In Harford Mutual v. Bruchey, 248 M d. 669, 2 38 A.2 d 115 ( 1968) , a Maryland c ouple sued a Maryland company in a Maryland c ourt for da mages aris ing from a n automo bile accident that occurred in Virginia. In addition to any direct personal injuries, the husband -14- sued for loss of consortium, an action that, by statute, was not allowed in Virginia. We concluded that, under lex loci delicti principles, Virginia law would generally apply, but acknow ledged the question o f whethe r there is extan t in Maryland such a stron g public policy in favor of recovery by a husband for loss of consortium as to require its courts to refuse to ap ply the law of a sister State which does not recognize such a right. Id. at 674, 238 A.2d at 117. We concluded that there was no such strong public policy. Id. We observed that a husband s right to recover for loss of consortium had been characterized as an anachronism, a fossil from an earlier era, an anachronistic common law rule, and a vestigial right, which, we said, hardly ind icates recog nition of a stro ng public policy in Maryland in favor of recovery for deprivation of consortium. Id. at 675, 238 A.2d at 118. Although we did not find in Harford Mutual a sufficiently clear and stron g public policy to disregard the lex loci delicti in favor of allowing a loss of consortium claim, the case cannot be read other than as recognizing that there is a public policy exception to the lex loci delicti rule and that we would apply it in an approp riate cas e. See also Linton v. Linton, 46 Md. App. 660, 420 A.2d 12 49 (1980 ); Rhee v. Combined Enterprises, Inc., 74 Md. App. 214, 536 A.2 d 1197 , cert. dismissed, 314 M d. 123, 549 A.2d 38 5 (1988); Black v. Leatherwood, 92 Md. App. 27, 606 A.2d 295 (1992). We can find no principled basis upon which to recogniz e such an exception in contract an d worke rs compe nsation cas es but to deny it in tort cases. The question certified is thus presented: does denying Maryland residents the right to -15- bring a wrong ful birth action by applying No rth Carolina law violate the public policy of the State of Maryland? Should the District Court, in light of our response to the first certified question, still find this question relevant, our answer is Yes. This is not a case like Harford Mutual, which needs t o be ex amine d in con text. Under long-established Maryland common la w, only a husband could sue for loss of consortium in Maryland for the loss of society, affection, assistance , and conju gal fellow ship of h is wife. The w ife had no com parable right. See Coastal Tank Lines, Inc. v. Canoles, 207 Md. 37, 113 A.2d 82 (1955). That anomaly was founded on the ancient common law premise that the husband w as entitled to his wife s services and was obliged to sup port her but that the wife w as not e ntitled to her hus band s service s and w as not o bliged to suppo rt him. Id. at 50-51, 113 A.2d at 88. As the clearest basis f or maintain ing that une qual right in th e middle of the 20 th Century, the Coastal Tank Lines Court quoted the pronouncement from the Hou se of Lords decision in Best v. Sam uel Fox & C o., Ltd. [1952 ] A.C. 716, affirming [1951] 2. K.B. 639, that [t]he common law is a historical development rather than a logical whole, and the fact that a particular doctrine does not logically accord with another or others is no ground for its rejection. Coastal Tank Lines, at 48, 113 A.2d at 87. In Deems v. Western Maryland Ry., 247 Md. 95, 100-101, 231 A.2d 514, 517 (1967), decided a mere seven months before Harford Mutual, the Court, in considering a Constitutional equal protection challenge to such an unfair rule, decided, in lieu of either abolishing the action or ex tending it to the wife, to regard it, prospectively, as a joint action -16- for injury to the marital relationship. Although preserving the action in its converted form, there is nothing in the Deems Opinion to suggest th at the Cou rt had any grea t attachmen t to the action; rather, it transformed the action into a joint one only to avoid having to resolve the Federa l Cons titutiona l attack o n it, Deems, 247 Md. at 113, 231 A.2d at 524, and, indeed, the Cou rt expres sly cautioned that i t was not deci ding the e ffec t that any Federal statute might hav e in foreclosing any claim for consortium under the Maryland law. Id. at 115, 231 A.2d at 525. As noted, the Harford Mutual Court still con sidered the a ction, even in its new emanation, as vestigial, anachro nistic, and a fossil from an ea rlier era, and, consistently with the caution expressed in Deems, did not regard the existence of the action in Ma ryland as a reason not to ap ply Virgin ia law. The right o f parents to bring an action for wrongful birth is quite different. It is not a vestige of ancient common law illogic but, as we noted in Kassama v. Magat, 368 Md. 113, 134, 792 A.2 d 1102, 1 115 (200 2), is of a type tha t, as a practical m atter, could not have been brought before the last half of the 20th Century. At its core, we s aid, it rests 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 d efects detectable p rior to birth, and even prior to conception, coupled with the loosening of the fetters on abortions trigg ered in 19 73 by Roe v. Wade. Id. In Reed v. Campagnolo, supra, 332 M d. 226, 6 30 A.2 d 1145 , we pointed out that [t]he clear majority of courts that has considered the type of medical malpractice case -17- alleged by the Reeds has concluded that there is legally cognizable injury, proximately caused by a breach of duty, id. at 235-36, 630 A.2d at 1149-50, and that there is at least some econom ic harm to the parents in these cases a harm that can be quantified under the general rules relating to tort damages. Id. at 236, 630 A.2d at 1150. We expressly rejected the approach of Azzolino as contrary to both Maryland law and the law of most States, and adopted instead the view of th e Massa chusetts court in Viccaro v. Milunsky, 551 N.E.2d 8, 10 (Mass. 19 90) that the harm 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 w hether to be ar a child with a genetic or other defect. Reed, supra, 332 Md. at 237, 630 A.2d at 1150, quoting from Viccaro. Reed was a car efully conside red and d eliberate reco gnition that, when prospective parents, relying on the negligent act or omiss ion of a he alth care pro fessional, ele ct to continue a pregnancy that they otherwis e would have lawfully terminated an d, as a result, are burdened with the cost and expense of raising a child with a serious genetic or other physical or mental defect, they have been injured and have a right to seek damages for that injury from the person whose neglige nce led to th e injury. That righ t is a matter of im portant pub lic policy in this State, flowing not only from this Court s considered view but as well from statute. See Maryland Code, § 20-209 (b), of the Health General Article, precluding the State from interfering w ith the decision of a woman to terminate her pregnancy at any time during the pregnancy if the fetus is affected by genetic defe ct or serio us de form ity or a bnormality. -18- We thus conclude that, if application of North Carolina law would preclude this cause of action on the ground stated in Azzolino that no injury has occurred, we would hold that aspect of North Carolina law to be contrary to clear, strong, and important Maryland public policy and wo uld not app ly it. Duty to Scott Hood The third question certified to us is whether, when a laboratory analyzes an amnioce ntesis specimen and the results are provided to the mother s physician but relied on by both parents, the laboratory has a sufficient relationship with the father to give rise to a duty of care. The question stems from LabCorp s view that, even if, by applying Maryland law, Karen would have a cogniza ble cause of action, her hu sband Scott wo uld not. LabCorp argues that (1) there was no relationship betw een it and S cott from w hich any duty to h im could flow, and (2) the action hing es on the rig ht that the plain tiff would have to terminate the pregnancy upon learning that the fetus was afflicted with CF, and that right belonged solely to K aren. Our response to the question certified cannot be more than maybe, because anything more definitive will depen d upon su bsidiary facts that are for the District Court to determine. We can, how ever , quic kly dispos e of L abC orp s not ion that a ny duty of care to Sco tt is precluded as a matter of law because the right to terminate the pregnancy belonged solely to Karen. It is true that the ultim ate decision whether to terminate a pregnan cy ordinarily rests -19- with the pregna nt wom an, but it is also true that, in many cases, especially when the woman is married, that decision is one jointly arrived at by the woman and her husband, as, from the facts presented to us, was the situation here. That Karen could have made the decision by herself is not a basis for holding, as a matter of law , that no duty of care exten ded to Scott. Nothing that we said in Dehn v. Edgecomb, supra , 384 M d. 606, 865 A.2d 60 3; Doe v. Pharm acia, 388 Md. 407, 879 A.2d 1088 (2005), or any comparable case would preclude the finding of a duty to Scott as a matter of law. In Dehn, we confirmed the long-held view that, as a general rule, recovery for malpractice aga inst a physician is allowed only where there is a relation ship be tween the doc tor and patient. 384 M d. at 620 , 879 A .2d at 61 1. The issue there was whether a wife co uld recover against a physician with whom she had no doctor-patient relationship based on the physician s alleged failure to give proper advice to her husband following the husband s vasectomy, as a result of which she becam e pregnan t. We found no basis in Dehn to create an exception to the general rule that limited the scope of a physician s d uty of care to that of the physician s patient and rejected the argument that mere foreseeability of harm suffice d to crea te a duty to the wif e. We maintained the view that it is only in a limited nu mber of c ases whe re a special re lationship sufficient to impose a duty of care will be found in the absence of traditional tort duty, id. at 625, 865 A.2d at 614, and concluded that there was no basis for finding such a special relationship to exist in that case. There was no connection at all between the wife and the doctor, and we rejected the notion that mere awareness by the physician that the patient was -20- married sufficed to create a spe cial relationship with the w ife or exten d a duty to her. To do so, we noted, would serve to expand the duty to all potential sexual partners of the patient a possibly large and unknowable class. We followed a similar approach in Doe. The defendant there was a laboratory in the business of cultivating two strains of the HI V virus fo r research p urposes. It pe riodically tested its employees for one of the strains but did no t test for the sec ond strain. If th e test it used showed a positive result, a second test was conducted, but the second test could confirm only the one strain, and thu s could no t rule out the ex istence of th e other. On e of its employees once tested positive on the first test and negative on the second, but he was not told that the result of that might be a second strain infection. The employee did, at some point, become infected with the second strain, as did his wife. The issue was whether the wife had a cause of action against the employer, and, applying the p rinciples enu nciated in Dehn, we held that she did no t, as there wa s no duty of c are running from the e mployer to her. As in Dehn, we were concerne d that creating a duty to unkno wn sexu al partners w ould create an expansive new duty to an indetermin ate class of people. Doe, supra, 388 Md. at 420, 879 A.2d at 1095. There is, of course, one important distinction between those cases and this one. To extend a d uty to Scott wo uld not risk a n extension to an indeterminate class of people any and all pote ntial sexual p artners of the patient/client b ut only to the father of the child who would be responsible for the child s sup port. There is thus no ge nerically pragm atic -21- impediment to recognizing such a limite d extende d duty. Still, althoug h the existen ce of duty is a question of law, the answer to that question, as with most que stions of law , is necessarily fact-based: does the evidence establish a sufficient relationship between Scott and LabCorp, given the nature of the task LabCorp was employed to perform, the circumstances surrounding its employment to perform that task, including any relationship Scott may have had with Ms. Kimball or Dr. Pinkert, and the use likely to be mad e of its report, to create a duty of care to S cott? Because the answ er to that que stion requires some spe cific factfinding, which is for the District C ourt to do, w e are unab le to provide a more de finite answer. CERTIFIED QUESTIONS OF LAW ANSWERED AS SET FORTH ABOVE; COSTS TO BE EQUALLY DIVIDED BY THE PARTIES. -22-
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