Washington Supreme Court…

A recent Washington Supreme Court case held that it is permissible for courts in a “wrongful life” lawsuit to award extraordinary damages. In the case at hand, those extraordinary damages totaled $10 million. We’ll discuss the case and its implications in a moment, but first, it might be helpful to have some background on the meaning of a wrongful life claim.

What is Wrongful Life?

Claims for wrongful life are relatively rare. They are permitted in only a handful of states, including Washington. A claim for wrongful life belongs to a child who is living with serious illness or disability. It is a medical malpractice action alleging, in essence, that if not for a medical provider’s negligent treatment or advice, the child would not be alive and, presumably, suffering. (A wrongful birth claim, on the other hand, belongs to the parents; it alleges that if not for the provider’s medical negligence, the parents would not have conceived and/or given birth to the child.)

In the case we will discuss in this blog post, the Washington Supreme Court preferred to focus not on “wrongful life” or “wrongful birth,” but on “negligent reproductive health care,” which is a more widely-accepted type of medical malpractice claim that is recognized in more states.

Pacheco v. United States

Yesenia Pacheco received regular injections of a contraceptive drug, Depo-Provera, at a federally-funded Neighborcare clinic from 2009 until July 2011. On September 30, 2011, she went to the clinic for her scheduled appointment for the Depo-Provera injection. However a medical assistant mistakenly injected her with a flu vaccine, having failed to confirm the reason for Ms. Pacheco’s appointment or to document consent to a change in orders. As a result, Ms. Pacheco was not informed that she was receiving a different injection than the one she expected.

In December 2011, Ms. Pacheco attempted to schedule her next Depo-Provera shot, and it was then that she learned of the error. She was given a pregnancy test at the clinic, and learned that she was pregnant. Ms. Pacheco gave birth to a daughter, Sandra, on August 2, 2012. Sandra experienced seizures shortly after her birth and was hospitalized for ten days. She was discovered to have polymicrogyria (PMG), a condition that causes vision problems, cognitive delays, speech and language delays, and epilepsy. Sandra’s PMG meant that she would have permanent disabilities that would require ongoing rehabilitative care and therapy.

In March 2017, Ms. Pacheco, the baby’s father Luis Lemus, and Sandra filed a complaint against the United States under the Federal Tort Claims Act. After a trial in 2020, the trial court awarded the family $10 million dollars. Of that amount, $7.5 million was designated for Sandra’s future medical, educational, and other expenses, and $2.5 million was damages for “mental anguish and emotional stress” suffered by Ms. Pacheco and Mr. Lemus. In addition, the government was ordered to pay $42,294.81 for Ms. Pacheco’s pregnancy-related expenses.

The government argued that it should only be liable for the costs associated with Ms. Pacheco’s pregnancy and Sandra’s birth, but not for Sandra’s ongoing care and medical expenses. The pregnancy and birth costs were about $42,000. Instead, the court held that a patient who received negligent reproductive health care was entitled to recover all damages that were proximately caused by the medical provider’s negligence. The court said that a pregnancy is a reasonably foreseeable outcome of that negligence, and the birth of a severely disabled child was a reasonably foreseeable result of a pregnancy.

The Washington Supreme Court was asked by the Ninth Circuit Court of Appeals to address the question of whether, in a case involving negligent contraceptive care, Washington law allows extraordinary damages for the costs associated with raising a child with birth defects, even though the plaintiff did not seek contraceptives to prevent the conception of a child later born with defects. The Washington Supreme Court said that a patient’s reason for seeking contraception does not limit the liability of a negligent medical provider under Washington law.

In other words, it was not necessary that Ms. Pacheco sought contraceptive care specifically to avoid giving birth to a child with birth defects. Regardless of her motivations for seeking care her care provider was negligent, and the conception and birth of a child with birth defects was a foreseeable result of that negligence.

Liability and Damages for Negligent Reproductive Care

Medical malpractice cases involving negligent reproductive care are complicated. The Pacheco case was noteworthy because it allowed for a court to award extraordinary damages to pay for the child’s future medical and care needs. A court outside Washington state might very well reach a different result.

That does not mean that it is not worth filing a medical malpractice action if your doctor or care provider was negligent in your reproductive care, and you were harmed by their negligence. If you have questions about whether your reproductive care provider committed malpractice, please contact The Fraser Law Firm P.C. to schedule a consultation.