The U.S. Court of Appeals for the Ninth Circuit asked the Washington Supreme Court in an order on Monday to clarify whether state law permits a family to pursue a “wrongful life” claim for the costs of raising a child with birth defects after a nurse negligently gave a flu shot to a woman instead of the contraceptive shot that she thought she was getting.
Yesenia Pacheco, Louis Lemus, and their child known as “S.L.P.” in court documents are plaintiffs in a lawsuit against NeighborCare Health Center, a federally qualified community health center. Pacheco first visited the health center in 2009 to obtain birth control, and was given regularly-scheduled contraceptive injections over the next two years. When Pacheco went for a routine contraceptive injection in September 2011, Gloria Rodriguez, a NeighborCare employee, gave Pacheco a flu shot instead of the contraceptive shot. Pacheco did not learn about the error until her next appointment when she arrived for her December contraceptive injection. By that time, Pacheco, already a mother of two, had become unintentionally pregnant with a third child.
Pacheco gave birth to S.L.P in August 2012 after a difficult pregnancy and an emergency cesarean section. S.L.P. was born with epilepsy and bilateral perisylvian polymicrogyria, a neurological disorder that limits her cognitive and motor functions.
Pacheco and her family sued, and won a $10 million negligence verdict against the United States — $7.5 million of which was meant to compensate S.L.P. for future damages. The federal government appealed, and now, the Ninth Circuit asks the state court to provide an answer to the central legal question in the case: If there is no evidence that a healthcare provider was or should have been concerned with matters of contraception, does that healthcare provider have a duty relating to the birth of children with birth defects? In other words, is Gloria Rodriguez legally accountable for the birth of S.L.P after mistakenly giving a flu shot instead of a contraceptive shot?
The question put to the court is not one of philosophy, but rather, one of legal interpretation. Washington state law allows for lawsuits for “wrongful birth,” which are claims brought by parents against healthcare providers when their “negligent action while treating a mother caused the birth of a defective child.” As noted by the Ninth Circuit, “Washington courts use the term ‘defective’ to describe children with congenital defects.
In Washington, healthcare providers can be found liable for failing to provide parents with information relating to conception or for negligently performing a procedure that would have prevented the birth of a “defective child.” In successful wrongful birth actions, parents may not recover child-rearing costs as damages if they ultimately give birth to a healthy child. They may recover expenses, however, as well as damages for pain and suffering for pregnancy and childbirth.
In addition to the “wrongful birth” claim by Pacheco and Lemus, S.L.P. and other “defective” children may bring their own claims for “wrongful life,” in which they can recover expenses incurred in connection with medical treatment. The federal government argues, though, that the relationship between S.L.P.’s birth defects and Rodriguez’s mistake is too flimsy to support liability. The law, argues the United States, aims to compensate victims only for malfeasance that causes birth defects — and not that which simply causes an unwanted birth.
Chief Circuit Judge Mary H. Murguia, a Barack Obama appointee, certified this question to the Washington Supreme Court via order issued Monday:
Under claims for wrongful birth or wrongful life, does Washington law allow extraordinary damages for costs associated with raising a child with birth defects when defendant(s) negligently provided contraceptive care even though plaintiff(s) did not seek contraceptives to prevent conceiving a child later born with birth defects?
The federal appellate court noted it does not intend the “phrasing of our question to restrict the Washington Supreme Court’s consideration of the issue.”
“We recognize that the Washington Supreme Court may, in its discretion, reformulate the question,” the order continued. “When the Washington Supreme Court decides whether to accept the certified question, the parties will promptly file a joint status report informing this Court of the decision. If the Washington Supreme Court accepts the certified question, the parties will file another joint status report informing this Court when the Washington Supreme Court issues an answer to the certified question promptly upon the issuance of that determination.”
In an email to Law&Crime Tuesday, plaintiffs’ attorney Mike Maxwell called said he and his clients were “disappointed” with the Ninth Circuit’s order. Maxwell continued as follows:
This is a matter of critical importance to the child. She is intellectually disabled with an IQ in the low 70’s. She is illiterate, she has recurrent seizures, has poor vision, and her education will never advance beyond the first grade level. She is in need of vision and occupational therapy which her impoverished parents cannot afford to pay for. We were to resolve this case shortly after her sixth birthday so that the child could have access to the services she needs, the sooner, the better. The child is now 9 1/2 years old, and we are still discussing an issue which the Supreme Court fo Washington resolved in 1982 in the Harbeson case.
Maxwell also criticized the federal government’s handling of the case, explaining that trial had been delayed several times due to the government’s actions, forcing him to file a motion for an expedited trial. The appeal has also been delayed.
“The United States waited until the last day to file its appeal, and on January 6, 2021, it filed its appeal in this case,” Maxwell said. The underlying law, according to Maxwell, has been long settled. He said, however, that “The United States stitched together an argument by mixing up inapplicable doctrines which creates a foggy argument which sounds legalistic.”
Maxwell also has this to say of the court: “Rather than doing its duty to read Harbeson, the Ninth Circuit bought into the confusion argued by the United States, and certified this, which will cause more irreversible and permanent harm for this 9 year old, innocent, disabled child.”
Attorneys for the DOJ declined to comment in response to Law&Crime’s request.
Nemo me impune lacessit