$10M Awarded for Failed Birth Control & Birth Defects
After an 8-year journey, Mike Maxwell had a recent incredible victory in the Washington State Supreme Court.
Medical Malpractice: Birth Control
Mike Maxwell and his co-counsel represented Yesenia, a young woman who had two children. She did not want more children and sought reliable birth control at a local health clinic. Her provider recommended Depo Provera injections, which are administered every 3 months and are highly effective. For two years, Yesenia appeared at her doctor’s office for her regular Depo Provera injections.
In September 2011, Yesenia went to the clinic for her regularly scheduled Depo Provera shot. In error, the technician gave her a flu shot and neglected to inform Yesenia of this. Three months later, when Yesenia arrived for her next scheduled shot, she was told that she needed a pregnancy test. She finally learned that she was given a flu shot in error. Lo and behold, the pregnancy test came back positive. Yesenia was pregnant.
Sandra was born eight months later, in August 2012. Immediately at birth, Sandra began having seizures and needed medical intervention. It was later found that Sandra had a major brain defect called perisylvian polymicrogyria or (PMG), a rare congenital birth defect that results in permanent disabilities. Overwhelmed with the cost, both emotionally and financially, of caring for a special needs child, with two other children already in the family, Yesenia sought legal help.
Mike filed a lawsuit in Federal Court in the Western District of Washington. Since the clinic was federally funded, this was the proper forum for this lawsuit. The government refused to admit that they were at fault. After much delay, they tried the liability portion of the case to Judge Robert Lasnik. Judge Lasnik found the federal government 100% responsible for negligently administering a flu shot when it should have given Yesenia a birth control shot.
In December 2020, in the middle of the pandemic, Mike tried the damages portion of the trial to Judge Lasnik. It was the first civil federal Zoom trial in the United States of America. A significant portion of the child’s damages, Mike argued, were because Sandra would never live independently and would require a lifetime of care. Judge Lasnik agreed and found that the United States was responsible for the birth of this disabled child and for the extraordinary care she would need for the rest of her lifetime. He awarded $10,042,000 in monetary damages.
The government appealed. Their main argument was that while they admitted they were negligent in administering the wrong drug, they denied responsibility for the extraordinary expenses that were awarded. In essence, the government argued, “We may be responsible for the birth of an unwanted child, but we are not responsible for the birth of a defective child.” After all, they argued, there was no information to suggest that Yesenia had a heightened risk of giving birth to a child born with a birth defect and she did not seek birth control to prevent the birth of a child with birth defects. Based on this logic, the government argued it was not foreseeable that Sandra would be born with a birth defect. Therefore, the government should not be responsible for the extraordinary costs of that care.
The 9th Circuit did not agree or disagree. Rather, it punted, saying this was a decision involving Washington State and that the Washington State Supreme Court should decide this issue. (Currently, the law in Washington State is that if a provider fails to follow the standard of care in reproductive health care and a healthy baby is born, there is no recovery for the costs of raising a typical child).
On June 4th, 2022, Mike argued this case to the Washington Supreme Court, by Zoom. It was clear from the Court’s questions of both attorneys, that they leaned in favor of this family. In August 2022, the Washington Supreme Court issued a unanimous decision, finding in favor of Sandra and her family. The Court found that if a Washington health care provider fails to follow the accepted standard of care for reproductive health care, the provider may be liable for damages related to the child’s congenital defect, regardless of whether the child was known to be at a heightened risk of disability and regardless of why the parents sought birth control. The Supreme Court squarely rejected the argument of the United States, that the birth of a child with birth defects is not foreseeable:
“To the extent that the United States argues that the birth of a child with congenital defects is a fundamentally different event from the birth of any other child, and is therefore unforeseeable, we reject this view. The birth of a child with congenital defects is the birth of a child.”
End of story. After a few more months of legal wrangling, the United States paid this claim, 8 years after SLP’s birth. Here is a picture of Mike and Steve giving Yesenia Pacheco her check.