Reproductive Negligence under Maine Law

By Alex Stein

STEIN on Medical Malpractice has published a survey of noteworthy court decisions in the field for 2017. This survey includes an important decision, Doherty v. Merck & Co., Inc., 154 A.3d 1202 (Me. 2017), featuring reproductive negligence.

This decision could benefit from Dov Fox’s excellent article, Reproductive Negligence, 117 Colum. L. Rev. 149 (2017).

The plaintiff, Kayla Doherty, visited a federally-supported health care center in Maine to inquire about birth control options. Her physician recommended an implantable drug manufactured by the defendant, the Merck company. The drug consisted of a single, four-centimeter-long rod inserted under the skin of the inner side of the patient’s upper arm with a syringe-like applicator. The drug works by inhibiting ovulation and is designed to be effective for at least three years unless the rod is removed sooner by a physician. The drug’s applicator, however, occasionally malfunctioned: it had a history of failed insertion attempts that occurred when the rod would remain stuck in the applicator following the procedure (unbeknownst to the treating physician and the patient).

Doherty was a victim of this malfunction.

She became pregnant eighteen months after her physician implanted the drug. At that point in time, Doherty underwent a thorough examination to discover that no rod was inserted in either of her arms. She then gave birth to a healthy boy following a long and painful delivery. Her pregnancy caused her nausea, mental and physical pain and suffering, insomnia, swelling, and weight gain. She also incurred expenses and lost wages as a result of missing work for medical appointments. Following the birth of her son, Doherty received mental health counseling and suffered emotional distress as a result of being unprepared to raise a child as a single mother.

Doherty filed suit in a federal court against Merck (on theories of strict products liability, breach of warranty, negligence, and negligent misrepresentation) and against the United States (for medical malpractice, pursuant to the Federal Tort Claims Act). Maine law controlled the case.

The federal court certified two consequential questions of law to the Supreme Judicial Court of Maine:

First, whether Maine statute barring “wrongful birth” actions extends to products liability actions against manufacturers.

Second, whether Doherty’s action was a suit for a “failed sterilization procedure” that falls under the exception to the state’s statutory bar on “wrongful birth” actions.

As far as the first certified question is concerned, the Court ruled that the bar on “wrongful birth” actions “addresses only the basis for the claim, not the identity of the defendant.” Hence, it applies not only to medical malpractice actions but to product liability suits as well. The Court based this conclusion on the categorical statutory language (“No person may maintain a claim for relief or receive an award for damages based on the claim that the birth and rearing of a healthy child resulted in damages to him.” 24 M.R.S. § 2931(2)) and on the legislature’s stated public policy (“the birth of a normal, healthy child does not constitute a legally recognizable injury,” 24 M.R.S. § 2931(1)). Id. at 1206.

As for the second question, the Court ruled that “sterilization procedure” only includes “medical or surgical procedures that alter the body’s anatomy for the purpose of permanently ending the possibility of procreation.” According to the Court, “[sterilization procedure] 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.” Id. at 1207. “Sterilization,” however, does include “tubal ligation or vasectomy that are intended to be permanent [but] may sometimes be reversed.” Id. at 1208. The Court based this interpretation on the meaning ascribed to “sterilization” by another statute, by other courts’ decisions, and by dictionaries. Id. at 1208-09.

This decision is open to criticism. Doherty’s suit could plausibly be interpreted as alleging a breach of contract that violated her personal autonomy (as opposed to causing a “wrongful birth” of her healthy child). As Dov Fox explains in his important article, “The injury in these cases is the wrongful deprivation of control over decisions not to become pregnant or not to become a parent, whether on a particular occasion or at all.” Fox, id. at 185. This cause of action warranted compensation (in the form of presumed damages or otherwise). Arguably, the violation of Doherty’s autonomy also entitled her to recover compensation for emotional distress (Cf. Supreme Court of Oregon decision, Tomlinson v. Metropolitan Pediatrics, of February 8, 2018, 362 Or. 431 (2018) (allowing compensation award to a plaintiff experiencing an unwanted pregnancy as a consequence of the care provider’s negligence even when she gives birth to a healthy child)).

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