$10M Medical Malpractice Verdict Involving Reproductive Care Affirmed By Federal Appellate Court

$10M Medical Malpractice Verdict Involving Reproductive Care: In its published Order filed on September 8, 2022, the United States Court of Appeals for the Ninth Circuit (“Federal Appellate Court”) upheld a district court’s award against the United States in the amount of $10,042,294.81: $42,294.81 in past special damages associated with past medical care; $7.5 million in future special damages for a minor child to compensate for future extraordinary medical, educational, and similar expenses; and $2.5 million in general damages for the parents to compensate for their emotional distress.

Appellees Yesenia Pacheco, Louis Lemus, and their minor child, S.L.P., brought an action under the Federal Tort Claims Act (“FTCA”) against the United States alleging negligence on the part of NeighborCare Health Center, a federally qualified community health center. They alleged that in 2009, Pacheco began visiting NeighborCare for birth control services and was placed on a course of Depo-Provera, a highly effective contraceptive that requires administering injections every eleven to thirteen weeks. In September 2011, Pacheco arrived at NeighborCare for her regularly scheduled Depo-Provera shot. A NeighborCare employee, however, mistakenly gave Pacheco a flu shot. Pacheco was unaware that she received the wrong shot, and she learned she was pregnant that December. Pacheco gave birth to S.L.P. in August 2012. S.L.P. was born with epilepsy and bilateral perisylvian polymicrogyria (“PMG”), a disability that contributes to S.L.P.’s neurological delays and will impose future medical expenses on both S.L.P. and her parents. The plaintiffs subsequently sued the United States for negligence.

The United States appealed to the Federal Appellate Court, contesting only the district court’s award of $10 million in extraordinary damages. The government argued that under Washington law, the federal government could not be held liable for the unforeseeable harm to plaintiff S.L.P., a minor child, who was born with a rare medical disability. The panel certified an unsettled issue of Washington law to the Washington Supreme Court.

The Washington Supreme Court concluded: “[a]s a matter of Washington law, damages for negligent reproductive health care may include extraordinary costs associated with raising a child with birth defects, even if the plaintiff did not seek contraception to prevent conceiving a child later born with birth defects.”

The Federal Appellate Court stated: “Washington law is now clear, and it forecloses the government’s various arguments that the extraordinary damages awarded here are impermissible as a matter of law. In particular, the Washington Supreme Court rejected the federal government’s contention that S.L.P.’s congenital defect automatically severs the proximate causation from the government’s negligence. Id. at *11. The record shows that S.L.P.’s PMG is “idiopathic,” which means that the cause is unknown and that the birth parent could not have done anything to predict or prevent it. The United States does not argue that any other intervening cause resulted in S.L.P.’s birth defect. Accordingly, we affirm the district court’s award of damages in the amount of $10,042,294.81.”

Source Pacheco v. United States of America, No. 21-35175.

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