Maine Mom Stumbles in Suit Over Faulty Birth Control

(CN) – Though failed sterilizations are exempt from a Maine law that bars lawsuits over the birth of healthy babies, the state’s highest court tossed out a single mother’s wrongful-birth suit against the maker of her birth control.

Kayla Doherty went to court after she gave birth to a son in 2014, saying the procedure she underwent at a federally supported Albion clinic in 2012 was supposed to keep her from getting pregnant for at least three years.

The ovulation inhibitor involved a physician implanting a rod inside Doherty’s arm with a syringe-like applicator, but Doherty says Merck & Co. knew or should have known that the applicator was defective.

Physicians apparently could not tell if an insertion failed because the rod had become stuck in the applicator. Doherty says her physician did

The ruling does not mention the name of the Merck birth control at issue, but the company’s Nexplanon implant fits the bill.

not check her arm after the procedure to ensure that the February 2012 implantation was successful, and that her pregnancy test was positive in October 2013.

Doherty, who is now a single mother, brought a federal complaint for compensation to cover the cost of raising the child. When the federal government and Merck moved to dismiss, the trial judge punted the case to the Maine Supreme Judicial Court.

The six-judge court was unanimous on Jan. 26 in recommending that Doherty not recover any damages.

Maine’s wrongful-birth statute specifically forbids any claims for damages that result from the birth and rearing of a health child. The only exception to this rule is in cases when permanent sterility such vasectomies fail.

“Here, Doherty claims that she is entitled to damages resulting from injuries that she suffered when the failure of Merck’s product resulted in a non-remarkable pregnancy leading to the birth of her healthy child,” Justice Andrew Mead wrote for the court. “That is precisely the claim barred by the very clear language of the statute.”

Doherty’s attorney, Laura White of the Kennebunk firm Bergen Parkinson, noted that they plan to challenge the constitutionality of the statue on remand to federal court.

“Maine’s highest court has affirmatively held that the Wrongful Birth Statute was intended to preclude a woman like Kayla Doherty from receiving any damages whatsoever,” White said in an email. “According to the court, she cannot recover even the cost of this negligently performed procedure or pregnancy-related damages.  We are hopeful that the federal court will see the constitutional problems with the statute, which the law court suggested was outdated because medicine has outstripped the statutory language.”

Saufley spoke to this possibility in a 2-page concurring opinion, joined by two other members of the court.

“In sum, we write to clarify that we do not opine on the constitutionality of the statute, and we do not opine on whether a person may maintain a claim for other types of injuries — unrelated to the existence of a healthy child — arising from allegations of medical malpractice in the context of a pregnancy,” the concurrence states.

Doherty failed to sway the full court that the failed-sterilization exemption in Maine’s wrongful-birth statute should also apply to nonpermanent birth control.

“We disagree, and conclude that the Legislature intended ‘sterilization procedure’ to include medical or surgical procedures that alter the body’s anatomy for the purpose of permanently ending the possibility of procreation,” Mead wrote. “The term does not include temporary pharmaceutical intervention in the reproductive process, such as the implant Doherty sought, nor does it include physical intervention, such as an intrauterine device, that is designed to be reversible without permanently altering the body’s reproductive organs.”

A representative for Merck has not returned a voicemail seeking comment.

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