Tort Law

Patient who received negligent reproductive health care can recover all damages, state supreme court rules

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The Washington Supreme Court ruled Thursday that judges in Washington are permitted to award extraordinary damages in “wrongful life” cases.

In its unanimous Aug. 18 decision, the state supreme court sided with Yesenia Pacheco, who sought the injectable contraceptive medication Depo-Provera from a federally funded community health center. During a visit in 2011, Pacheco was mistakenly given the flu vaccine instead of the contraceptive medication and later became pregnant.

Shortly after Pacheco gave birth, her child, who is identified in the court’s opinion as S.L.P., experienced seizures and was hospitalized. She was diagnosed with perisylvian polymicrogyria, a congenital defect that results in permanent disabilities and will require continual rehabilitative care.

A federal judge ordered the federal government to pay Pacheco and her family $2.5 million in damages and $7.5 million for the child’s future medical, educational and other expenses. The U.S. Department of Justice appealed to 9th U.S. Circuit Court of Appeals at San Francisco, which asked the Washington Supreme Court to clarify the state’s law on negligent reproductive health care.

“In this case, it is undisputed that (1) the United States had a duty to follow the accepted standard of care in providing Pacheco with contraceptive medication, (2) the United States breached its duty, (3) the breach proximately caused Pacheco’s pregnancy and S.L.P.’s birth, and (4) the plaintiffs incurred damages as a result,” according to the Washington Supreme Court. “The certified question asks what types of damages the plaintiffs may recover as a matter of Washington law ‘in light of the record certified by the federal court.’”

The federal government argues that it cannot be liable for damages associated with S.L.P.’s perisylvian polymicrogyria because of “long-standing principles of tort law,” the state supreme court said.

“The United States contends that the ‘plaintiffs have made out only a wrongful pregnancy or wrongful conception cause of action’ because ‘Pacheco sought contraception from [Neighborcare Health] to prevent pregnancy, and her case did not involve any heightened risk of or concern for the possibility of a birth defect,’” the Washington Supreme Court added. “Therefore, the United States argues, damages related to S.L.P.’s PMG ‘are untethered from the duty that was breached.’”

The Washington Supreme Court disagreed, holding that the federal government’s approach was not supported by precedent and at odds with the state’s public policy.

“Claims for negligent reproductive health care are subject to the same principles that apply to any medical malpractice action,” the state supreme court said. “Application of those principles shows that the United States’ liability for damages associated with S.L.P.’s PMG depends on questions of fact, not questions of law.”

The Washington Supreme Court contended that Washington is one of a few states that recognize a range of claims for negligent reproductive health care by parents and their children. It left the question of whether a district court’s findings should be affirmed or reversed to the 9th Circuit.

The Associated Press reported on the decision.

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