OLYMPIA, Wash. (Legal Newsline) - A woman who mistakenly received a flu shot instead of the contraceptives she was expecting may be entitled to $10 million in damages after she gave birth to a child with a rare congenital disease, the Washington Supreme Court ruled, rejecting the U.S. government’s argument the plaintiff had to prove she sought birth control to avoid such an outcome.
Answering a question posed by the federal Ninth Circuit Court of Appeals, the state Supreme Court said Washington law doesn’t require such foreseeability to award damages for the care of an unwanted child. The only question is whether the medical provider was negligent, the court ruled.
Yesenia Pacheco sued the U.S. government after she went in for her monthly shot of Depo-Provera in 2011 and a medical assistant gave her a flu shot instead. She learned of the mistake before her next injection, when she found she was pregnant. The child, identified as S.L.P., was born with perisylvian polymicrogyria, a congenital defect that can cause speech difficulties, and cognitive impairment and requires rehabilitative care.
A federal judge awarded Pacheco $10 million in a Federal Tort Claims Act suit, including $7.5 million for future care of the child and $2.5 million in pain and suffering for the parents. The U.S. appealed, saying it was liable for damages associated with pregnancy and birth but not for the effects of the congenital disorder. The Ninth Circuit then asked the Washington Supreme Court to answer whether such damages are available under Washington law.
“The answer is yes,” the Supreme Court responded. The vast majority of courts refuse to award damages for the cost of rearing and educating a healthy child, the court said, and Washington follows suit for “policy reasons.” Washington also has disallowed “wrongful birth” damages when the child’s disability occurred after birth.
In this case, however, Pacheco was seeking damages for the cost of raising a child she sought to prevent by using contraceptives, the court said. It didn’t matter whether the clinic could have anticipated that child would have congenital defects.
“Awarding damages related to S.L.P.’s PMG does not reflect a determination that S.L.P.’s existence is a net loss to her parents,” the court concluded. “It merely `recognize[s] (1) that these are expenses that would not have been incurred ‘but for’ the defendants’ negligence and (2) that they are the kind of pecuniary losses which are readily ascertainable and regularly awarded as damages in professional malpractice actions.’”
The case was remanded to the Ninth Circuit to resolve other questions the U.S. raised on appeal.