Washington Supreme Court Allows Recovery of Extraordinary Damages for “Negligent Reproductive Healthcare”
Have parents sustained compensable damages if they have an unplanned child as a result of a physician’s failure to meet the standard of care when providing contraceptive care? What if the child is born with disabilities that were not caused by the physician’s care? Is the physician liable for the extraordinary medical costs necessitated by the child’s condition? May the parents recover for emotional distress arising from raising a child with disabilities? The Washington Supreme Court recently answered these questions in the affirmative in Pacheco v. U.S., 515 P.3d 510 (2022).
The plaintiffs in Pacheco sought contraceptive care from a federally funded community health center. The plaintiffs chose an injectable contraceptive medication that must be administered every 11 to 13 weeks. The plaintiff attended the clinic to receive her regularly scheduled injection, however, the medical assistant administered a flu shot instead of the injectable contraceptive. The plaintiff did not learn of the mistake until over two months later when she was already pregnant. The plaintiff gave birth to a child with a congenital defect resulting in permanent disabilities.
The plaintiffs filed a lawsuit in the United States District Court for the Western District of Washington and tried their case to verdict, resulting in an award of $42,941.81 for pregnancy related expenses. These damages for pregnancy related expenses are recognized in many jurisdictions regardless of whether the child is born with a disability and they were not appealed by the United States. However, the district court also awarded $7.5 million for future medical expenses and educational expenses necessitated by the child’s condition, and $2.5 million for the parents’ emotional distress. The United States appealed the $10 million award for extraordinary damages. The Ninth Circuit Court of Appeals certified the following question to the Washington Supreme Court:
Under claims for wrongful birth or wrongful life, does Washington law allow for extraordinary damages for costs associated with raising a child with birth defects when defendant(s) negligently provided contraceptive care even though plaintiff(s) did not seek contraceptives to prevent conceiving a child later born with birth defects?
The Washington Supreme Court reformulated the question to refer to claims for “negligent reproductive health care” rather than claims for “wrongful birth” or “wrongful life.” At the time this publication is authored, the Pacheco case is the only published opinion that refers to “negligent reproductive health care.” However, the Washington Supreme Court was careful to point out that it was not fashioning a new tort and that the plaintiffs’ recoverable damages turned upon traditional tort concepts applied to medical negligence cases rather than the title applied to their cause of action.
The primary issue on appeal concerned the issue of proximate cause. Neither plaintiff had a family history that indicated an elevated risk of their child being born with a disability. Further, the plaintiffs did not seek contraceptive care to prevent the birth of a child with disabilities, and the child’s condition was idiopathic – meaning that medicine cannot explain why it occurred. Accordingly, the United States argued that the child’s unforeseeable congenital defect was an intervening cause which severed the causal chain as a matter of law. The Washington Supreme Court disagreed, holding that the issue of causation must be resolved as a question of fact rather than as a matter of law. The Washington Supreme Court left it to the Ninth Circuit to decide whether the district court’s factual findings should be affirmed on appeal. However, the Washington Supreme Court commented that the district court’s findings were supported by unrebutted expert testimony that any pregnancy carries at least a two to three percent risk of birth defects.
The Washington Supreme Court also affirmed the award of $2.5 million in damages for emotional distress. This holding stands in stark contrast to Washington precedent concerning the birth of children without birth defects. Ordinarily, Washington law will not allow recovery of damages for emotional distress arising out of the birth of a “healthy child” because, among other reasons, the fact that the parents alleged that the birth of their child caused them emotional distress “carr[ies] with it the possibility of emotional harm to the child.” McKernan v. Aasheim, 102 Wash.2d 411, 421 (1984).
The Washington Supreme Court’s holding that parents of a child born with disabilities may recover for emotional distress in a medical negligence action is nothing new. Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460 (1983) (parents may recover for emotional distress where physicians negligently advised parents about risks that Dilantin could cause birth defects). However, the Washington Supreme Court’s holding in Pacheco is unique in that the parents were able to recover for emotional distress when the physicians did nothing to cause or contribute to the birth defect aside from their failure to prevent the pregnancy. Contrasted with McKernan, the Pacheco decision highlights how Washington law holds different views concerning the recovery of damages for emotional distress arising out of the birth of an unplanned child when the claim involves the birth of a child with or without birth defects.