WASHINGTON, November 15, 2015 — One hundred and thirteen women have filed a class action lawsuit in Philadelphia against Qualitest Pharmaceuticals claiming the “reverse” packaging of birth control pills manufactured by the company led to their pregnancies. Mothers in 28 states are seeking millions of dollars, including claims for the cost of raising their children into adulthood and the cost of education.
Qualitest did recall eight types of oral contraceptives in 2011 after it was discovered that rows of pills were reversed, meaning women may have taken the sugar or placebo pills when they should have taken the actual contraceptives.
What if you do not want children and your birth control method has failed? What the issue was more than just not wanting children? What if you simply could not afford to raise a child? What if your genetic family history has persuaded you not to have children? What if you sought information about your genetic background were given the wrong information?
The legal issues surrounding the birth of unwanted children have different answers around the country. Should there be legal uniformity nation wide?
Our nation’s highest court has ruled on issues of abortion and same-sex marriage and has provided, at the very least, a backbone upon which all states may rest in viewing how to adjudicate these types of issues when presented in courtrooms. Perhaps the many issues attendant to unwanted children might also benefit from a uniform Federal law. But perhaps not, as it can be argued that the will of the people is best represented on a state-by-state basis.
Moving past a policy discussion, the immediate question is, will these women in the cases above find success in this lawsuit?
A bit of history may provide the answer.
By the late 1970s, the practice of suing doctors for failed sterilization procedures had gained acceptance in most states. Lawsuits seeking damages for unplanned or unwanted pregnancies were allowed when medical negligence was proven. With technological advances in birth control methods such as pills, the “morning-after” pill, intra-uterine devices and safe access to abortions and more reliable genetic testing, courts had to look at new types of lawsuits when unintended pregnancies occurred.
These new types of lawsuits have been termed wrongful pregnancy, wrongful birth and wrongful life.
Wrongful pregnancy is a claim that a doctor’s negligence caused an unwanted or unplanned pregnancy. Most states recognize this claim if the pregnancy resulted from a failed tubal ligation or vasectomy or from a failed contraceptive pill or device, or if there was a continuing pregnancy after a failed abortion.
Courts generally allow damages to include the cost of the pregnancy as well as pain and suffering and emotional distress related to the unwanted pregnancy; costs associated with the delivery; and damages for any of the mother’s injuries or death if such occur and were related to the pregnancy or delivery.
Mothers in most of these cases have not been allowed to recover any costs associated with raising the child. In six states where such “raising the child” costs are allowed, they are offset by the monetary and non-monetary benefits conferred by the child.
Wrongful birth cases allege that a doctor’s action or omission prevented the would-be mother from making an informed choice about whether to terminate a pregnancy that resulted in the birth of a child with a congenital impairment or disability. About half of the states recognize this type of case. The gist of these claims is that the doctor failed to inform the mother of potential problems, genetic markers, etc., that could result in delivering a child that was not perfectly healthy and thus deprived the mother of the choice of whether to carry the pregnancy to term.
These cases generally allow for compensation similar to those detailed above and similarly prohibit child-rearing expenses. Some states allow for “extra-ordinary” damages such as compensation for medical specialists, behavioral modification therapy, orthopedic aids and medications.
Wrongful life cases are very close to wrongful birth cases. The difference is that in wrongful life cases, the child is the one filing the lawsuit claiming that because his or her mother was deprived of the informed choice to terminate the pregnancy, the child was forced to live a life of pain and suffering.
Most states will not allow this claim, believing that life in and of itself cannot be an injury. Four states, California, New Jersey, Louisiana and Washington allow the claim and allow compensation for extraordinary damages.
The list of possible defendants (those being sued) has grown over the years. In addition to suing a doctor, now, depending upon the claim, a woman may sue her pharmacist, her genetic counselor, her non-physician health care provider, drug companies and possibly others.
A case in Michigan filed against a pharmacist who provided tranquilizers instead of contraceptives was seen. A condom manufacturer was sued in New Jersey. A Delaware case included not only suing doctors, but also the medical center employing the doctors for failing to perform testing procedures that would have revealed the child to be born had Down Syndrome. A California laboratory was sued following negligent blood testing procedures undertaken to determine if a child had Tay-Sachs disease.
Will the women in this Philadelphia lawsuit win? Probably. Will they recover all of the compensation they are seeking? Probably not.
In 2011, a jury awarded a couple $4.5 million in a wrongful birth case against a doctor and an ultrasound technician who failed to properly read the test on their child, who was born with no arms and only one leg. The couple said they would have terminated the pregnancy.
The parents of a child born with Down Syndrome were awarded $3 million in a wrongful birth case, even though an early prenatal test found the child did not have the genetic marker associated with the disorder.
Notwithstanding these results and many others, the overwhelming sentiment of courts is that life is valuable, and there is joy in parenting. Judges are not comfortable viewing life as a form of damage. The sentiment is that the costs of raising a child are offset by the blessings of parenting.
Some inquiring minds might delve into possible “defenses” in these cases, that is, claims that might result in the cases being thrown out or which would limit the amount of compensation if the mom were to win the case. It would be easy to defend a case by claiming the mom should either have had an abortion or should have given the child up for adoption.
Some states permit the woman’s failure to have an abortion to be used against her, viewing the mother’s “failure to mitigate” her damages a reasonable consideration in assessing those damages. In other states, defendants are prohibited from claiming the mother suing should have had an abortion.
Regarding adoption, some states hold that it is unreasonable to require the mother to place a child up for adoption in order to mitigate damages. Other courts have held that the woman’s decision to keep the child rather than putting it up for adoption amounts to a determination by the woman that the benefits of parenthood outweigh the costs. Thus, the jury should be allowed to offset any compensation award by the monetary and non-monetary benefits conferred by the child.
The expansion and diversity of available contraceptive products and technologies are resulting in more people using them. Due to this ever-growing rate of increase, the individuals or companies providing these devices, products and procedures are facing greater and greater exposure to liability when the contraception fails. Courts and legislatures will continue to deal with and struggle with what are clearly complex issues. The law will develop in this area.
Paul A. Samakow is an attorney licensed in Maryland and Virginia and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.