A decision by the Maine Supreme Judicial Court held that a plaintiff should not be allowed to recover personal injury damages for the wrongful birth of a healthy baby. The child was reportedly conceived after the plaintiff had been implanted with a form of birth control that was inserted into the plaintiff’s arm.
The plaintiff gave birth to a boy, who was healthy, in the summer of 2014 when she was 21 years old. However, as she explained to the court, she had visited a health care center to weigh her options for birth control.
According to court records, the plaintiff’s doctor recommended the use of an implantable device manufactured by the defendant. It consisted of a single, four-centimeter-long rod that was to be inserted underneath the skin of the patient’s upper arm with an applicator that looked like a syringe. The drug was designed to prevent pregnancy for at least three years, unless the rod was removed sooner by a doctor. It works by blocking the ovulation process.
The plaintiff alleges the manufacturer was aware, or should have known, that the applicator had a history of failing during insertion attempts in a manner that, unbeknownst to the doctor administering the device, would result in the device remaining stuck in the applicator. When the device was implanted in February 2012, the doctor reportedly failed to make sure that the device was successfully in the plaintiff’s arm. Having undergone this procedure, however, she believed she could not get pregnant.
In October 2013, the plaintiff took a pregnancy test that revealed she was in fact pregnant. An exam and several ultrasounds indicated that the device could not be found in the plaintiff’s arm, and it was the opinion of her OBGYN that the device had never actually been inserted. The plaintiff gave birth in 2014, following what was described as a long and painful delivery. She reportedly suffered nausea, insomnia, swelling, and weight gain. She also lost wages as a result of missing work for numerous medical appointments, and she also had to undergo mental health counseling for emotional distress that resulted from being unprepared to raise a child on her own.
Her lawsuit against the defendant drug manufacturer alleged theories of strict product liability as well as negligence, negligent misrepresentation, and breach of warranty. She also filed a lawsuit against the U.S. government (since the doctor who was supposed to implant the device worked at a federally funded clinic) for failure to obtain informed consent. The plaintiff asked the court to declare 24 M.R.S. § 2931, the Maine statute that provides that the birth of a healthy child is not a cause for which damages can be claimed, unconstitutional.
Both defendants moved to dismiss, arguing she had not suffered a legally recognized injury, and she had not undergone a failed sterilization procedure that would invoke the statutes’ exception.
The trial court granted summary judgment and the Maine Supreme Judicial Court affirmed. The state high court noted that sterilization is a process – medical or surgical – whereby the body is altered for the purpose of permanently ending the possibility of procreation. Here, that did not apply because temporary pharmaceutical intervention, the court ruled, is not the same as sterilization, and therefore, the exception didn’t apply. The court declined to find the current law unconstitutional.
If you are a victim of an injury in Bangor, contact Peter Thompson & Associates at 1-800-490-5218 for a confidential consultation to discuss your rights.
Doherty v. Merck & Co., Jan. 26, 2017, Maine Supreme Judicial Court
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