How Contraception Errors Resulted in a Wrongful Birth

Washington Medical Malpractice Attorney Mike Maxwell

Video Transcript:

Mike Maxwell: 

The child has got very bad vision, she had recurrent seizures, she's intellectually disabled, she'll never be able to read, she'll never get beyond the first grade level, and she'll never live independently.

Rob Rosenthal: 

We've talked about wrongful death cases before, but we've never talked about wrongful birth. And that's what we're gonna talk about today, on today's episode. We have Washington State attorney Mike Maxwell here, to tell us about a case like that, that he handled. Let me tell you right up front, if you'd like to talk to Mike and ask him questions about your situation, just go to askthelawyers.com, click the button at the top that says, Ask a Lawyer, and it'll walk you through the process. It's free to ask any questions or you can call the phone number you'll see on the screen during our conversation. Mike, thank you for making some time to share this information with us today.

Mike Maxwell: 

Yeah. Thank you, Rob.

Rob Rosenthal: 

So let's talk about this case you handled, we're calling it a wrongful birth case, which I've actually never heard of. Tell me about that, what happened? Take us through the process.

Mike Maxwell: 

Wrongful birth pertains to a case where the doctor screws up birth control. So it can be a case where you go in for a tubal ligation and the doctor screws it up. A vasectomy and the doctor screws it up. In our case, a young woman who had two children, and who is poor, went to a federally funded health clinic and told the doctor that she wanted to have no more children, and the doctor gave her... Prescribed for her what was called a Depo-Provera, which is an injectable form of birth control. Every three months, she would come in at regular intervals, she would get an injection of birth control, and then they would say, "Thank you, come back in three months." On this particular day, she comes in, and the federally funded clinic was having its flu clinic that day, taking people off the streets and giving them flu shots.

Mike Maxwell: 

The tech mistook our client for a flu shot patient. Our client walks in, pays her $5.00 co-pay, is taken to the back room, the tech walks in he says, "Show me your shoulder," client pulls down her shirt, the tech pulls a syringe off the shelf and injects my client with a flu shot unbeknownst to my client. My client says, "Okay, thank you very much." And she leaves. She calls the clinic three months later, and she says, "I'd like to come in tomorrow for my birth control shot." And the receptionist says, "Well, last time you were here you didn't get your birth control shot. You got a flu shot. Before we give you your birth control shot, you need to get a pregnancy test." And the client said, "Pregnancy test? What are you talking about? I thought I got a birth control shot."

Mike Maxwell: 

She comes in, they give her a pregnancy test and she's pregnant. The clinic offers this woman the option of an abortion, but for religious reasons, she doesn't want an abortion. She carries the child to term and unfortunately this child had a severe brain defect, it's a birth defect. It's called bilateral perisylvian polymicrogyria. As a result, the child has got very bad vision, she had recurrent seizures, she's intellectually disabled, she'll never be able to read, she'll never get beyond the first grade level, and she'll never live independently.

Rob Rosenthal: 

And she's gonna need special care the rest of her life.

Mike Maxwell: 

She will need special care for the rest of her life.

Rob Rosenthal: 

And so then what happened? So this woman, A, had the baby that she didn't think she was going to have. And now has this special needs child to take care of. When did your firm get involved?

Mike Maxwell: 

My firm got involved shortly after the child was delivered, and we sent the notice to the government, it's a federal case because it's a federally funded clinic. The government ignored the notice, we filed the suit, and the case was in suit for five years. The government, believe it or not, refused to admit error. So, we had to have, what's called a bifurcated trial, meaning we had to have a full trial on whether or not it's negligent to give a patient the wrong medication. Giving the patient a flu shot, instead of the Depo-Provera shot. And the court found that the government was negligent. Then we had to have a second trial, just so you understand, there are two causes of action, one is called wrongful birth, and the other one is called wrongful life.

In a wrongful birth case, the parents are the plaintiffs, the parents can collect for the cost of the pregnancy, the cost of the child birth, and all the extraordinary costs for raising the disabled child, up until the child's age of majority, which in Washington State is the age of 18. And the parents can collect for emotional distress for having a disabled child, 'cause it is very, very stressful to care for a disabled child. That's called the wrongful birth portion. Wrongful life is the child can collect for the extraordinary cost of keeping her fed, clothed, protected and sheltered for the rest of her life if necessary, that's called a wrongful life case. In our case, we had a trial and the judge awarded $10 million total. $2.5 million to the parents and $7.5 million to the child on the wrongful life.

Rob Rosenthal: 

And was that the end of it?

Mike Maxwell: 

That was not the end of it. The government, the federal government appealed it, and it is currently on appeal. So part of my advice to lawyers is if you wish to fight the federal government, doesn't matter how strong your case is, it doesn't matter how frivolous the defenses is, in my experience, the federal government will fight these things all the way, simply because they can. You gotta have resources to do these cases. These cases are very, very rare. In fact, this is one of the few times in the history of the United States, that such a case has been brought. In fact, to my knowledge, the only time it's ever been brought. Most of the times birth control works, almost always it works. It's hard to screw up birth control. It's pretty easy to do it correctly, and if birth control is done incorrectly, that doesn't mean you're gonna have a child. Most of the time, even if people are sexually active and the birth control doesn't work, they still don't get pregnant.

Mike Maxwell: 

And if they do get pregnant, if there's a child that's born, if they don't have an abortion, if there's a child that's born, the child will be healthy. So the chances of the birth control being screwed up is one in a million, and the chances of this kind of a defect is one in a billion. The point is, that if you have a medical malpractice case, wrongful birth and wrongful life are subsets of medical malpractice. What you really need is a very, very skilled lawyer, because most of these cases can't be handled by your average lawyer.

Rob Rosenthal: 

In hearing the story, Mike, I can't help but have my heart go out to... While this case is being dragged on and on and on, that woman is having to deal with her real life situation and taking care of this child who's now, how old? Five years old, something like that?

Mike Maxwell: 

Yes, it's a devastating case, Rob. The child was 6 years old at the time of trial, she is now almost 10 years old, this case has been dragging on for years, simply because the government refuses to recognise its error. The parents are very, very poor, they're fast food workers and janitors, and they just don't have the resources that are necessary to give the child the therapies that she needs. She needs vision therapy, she needs occupational therapy, she needs transportation, she needs protection, and the parents are stretched very thin. And unfortunately they're shorting the resources that they would be giving to their other two daughters, because the special needs child is such a burden for them. They love the girl, don't get me wrong, they love her dearly, but they don't have much in the way of resources and the government should just pay this case, because its error caused the birth of this child. Yet they refuse.

Rob Rosenthal: 

Heartbreaking, fascinating case story there, Mike. Thank you so much for making some time to tell us about it.

Mike Maxwell: 

Thank you. Thank you, Rob.

Rob Rosenthal: 

And that's gonna do it for this episode of Ask the Lawyer. My guest has been Washington State attorney, Mike Maxwell. As I said, if you'd like to ask Mike questions about your situation, go to, askthelawyers.com. There's a button at the top of the page that says Ask a lawyer, you can click on that and it'll walk you right through the very simple process and it doesn't cost anything to ask your questions. Thanks for watching. I'm Rob Rosenthal with Ask the Lawyers.

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