By: Abraham Moussako
Law360, New York (February 27, 2017, 6:06 PM EST) — A woman who has accused a federally funded health provider of causing an unintended birth by botching a contraceptive injection can’t get a quick win in the case because of lingering questions about whether she consented to the allegedly mistaken shot, a federal court in Washington state has ruled.
U.S. District Judge Robert S. Lasnik ruled on Wednesday that because it is unclear whether Yesenia Pacheco had given informed consent to receive the flu shot at the center of the case, she could not win on summary judgment. Pacheco had alleged that she did not consent to a flu shot because her appointment that day at the NeighborCare Health facility in the Wallingford neighborhood in Seattle was to receive Depo-Provera, a birth control injection.
Pacheco had received injections of Depo-Provera at NeighborCare Health in January, April and July of 2011, according to the decision. When she came into the office on Sept. 30, 2011, she was given a flu vaccination by a medical assistant, and not Depo-Provera, according to the decision. She later became pregnant and gave birth to a child in August 2012 who later developed seizures, the decision said.
Pacheco sued the federal government under the Federal Tort Claims Act in July 2015, alleging the September injection mix-up led to her pregnancy.
Pacheco had argued that the providers were liable because they failed to exercise due care by injecting a substance that does not prevent pregnancy and failed to get informed consent because she was not told about the flu shot at the September appointment, according to the decision.
However, whether Pacheco consented to the flu shot is in dispute, preventing summary judgment, Judge Lasnik said. The facility contends a medical assistant who administered the shot may have obtained permission. While there is no evidence that Pacheco had signed a form consenting to the flu shot, the judge found that the medical assistant had provided enough evidence that she had a routine of responding to a patient’s expressed desire to get a flu shot.
The assistant claimed that she could have been told by Pacheco that she came for a flu shot, but does not remember the meeting, according to the decision. Pacheco’s attorneys countered that the more likely reason for the mishap was that there was a flu clinic at the center that day and the assistant simply did not check whether Pacheco was in the office as part of the flu clinic, according to the decision.
After the decision, Pacheco’s attorneys expressed confidence in the case and said that they are planning to have the suit bifurcated, with an expedited trial on liability before consideration of damages. They also criticized the government’s conduct in litigating the case at all.
“Should the government fight all claims … or does the federal government owe an obligation to do the right thing when an employee makes an error, and not fight over frivolous stuff?” attorney Michael A. Maxwell told Law360 Monday. “Here, the federal government is acting like an insurance company.”
A public information officer from the U.S. Attorney’s Office in the Western district of Washington declined to comment beyond previous legal filings.
Pacheco is represented by Michael A Maxwell of Maxwell Graham Law and Steve Ralph Alvarez.
The federal government is represented by Patricia D. Gugin of the U.S. Attorney’s Office.
The case is Pacheco et al v. United States of America, case number 2:15-cv-01175-RSL, in the U.S. District Court for the Western District of Washington.
–Editing by Jill Coffey.