Pacheco v. United States

515 P.3d 510

Certification from the United States Court of Appeals for the Ninth Circuit in Yesenia PACHECO; Luis Lemus ; S.L.P., minor child, by and through her Guardian ad Litem, Brian Comfort, Plaintiffs-Appellees,

v.UNITED STATES of America, Defendant-Appellant.

No. 100526-1

Supreme Court of Washington.

Argued: June 2, 2022

Filed: August 18, 2022

Steve Ralph Alvarez, Attorney at Law, 705 S. 9th St. Ste. 304, Tacoma, WA, 98405-4600, Michael Alexander Maxwell, Maxwell Graham, PS, 535 East Sunset Way, Issaquah, WA, 98027, for Plaintiffs-Appellees.

Kristin B. Johnson, Kristen R. Vogel, Matt Waldrop, US Attorney's Office, Western District of WA, 700 Stewart Street, Suite 5220, Seattle, WA, 98101-4438, Leif Overvold, Daniel Tenny, DOJ - U.S. Department of Justice, 950 Pennsylvania Avenue Nw., Washington, DC, 20530, for Defendant-Appellant.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 Nw. Aspen St., Camas, WA, 98607-8302, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

YU, J.

¶1 This case asks whether a patient who received negligent reproductive health care may recover all damages proximately caused by the provider's negligence, regardless of the patient's reason for seeking care. The answer is yes.

¶2 If any Washington health care provider breaches their duty "to follow the accepted standard of care," then damages proximately caused by the provider's negligence may be recovered upon the necessary factual findings. RCW 7.70.030(1). The same is true for providers of reproductive health care.¹ As a result, where negligent contraceptive care results in the birth of a child, and that child has a congenital defect,² the provider may be liable for damages relating to the child's condition. Such liability does not require proof that the child was at a known, heightened risk for developing congenital defects or that the patient sought contraception for the specific purpose of preventing the birth of a child with congenital defects. Thus, we answer the certified question in the affirmative.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶3 Plaintiff Yesenia Pacheco sought contraception from Neighborcare Health, a federally funded community health center, "to prevent the birth of an unwanted child." Clerk's Papers (CP) at 101. The method Pacheco and her care providers selected was Depo-Provera, "a highly effective" injectable contraceptive medication that "must be administered on a timely basis every eleven to thirteen weeks." Id. at 71-72. Pacheco received regular Depo-Provera injections at Neighborcare from December 2009 until July 2011.

¶4 On September 30, 2011, Pacheco went to an appointment at Neighborcare to receive a scheduled, timely Depo-Provera injection. A medical assistant "mistakenly injected [her] with a flu vaccine instead." Id. at 71. The medical assistant "failed to confirm why Ms. Pacheco was there, to document consent to the flu vaccine or a change in the orders, or to advise Ms. Pacheco of the side effects of a flu shot and/or the consequences of skipping a Depo-Provera injection." Id. at 72. As a result, Pacheco did not know she was given the wrong injection.

¶5 Neighborcare did not inform Pacheco of its mistake until December 2011, when she sought an appointment for her next Depo-Provera injection. At that time, Neighborcare asked Pacheco to come to the clinic for a pregnancy test, which was positive. Plaintiff S.L.P. was born to Pacheco and plaintiff Luis Lemus on August 2, 2012. Shortly after her birth, S.L.P. "developed clinical seizure activity," and she "remained hospitalized from the date of her birth, August 2, 2012 to August 12, 2012." Id. at 103-04.

¶6 Testing revealed that S.L.P. has perisylvian polymicrogyria (PMG), a congenital defect resulting in permanent disabilities, including "severe speech and language difficulties," "impairment in fine and gross motor skills," a "decrease in self-help and adaptive abilities," "difficulties in arousal and attention," "recurrent seizures," "challenges in social reciprocity," "cognitive impairment," and "academic impairment." Id. at 55, 57-59, 61. S.L.P.'s "life care plan" shows that she will require "ongoing rehabilitative care," "various therapies," and "different evaluations." Id. at 66. The parents have no personal or family history of similar disabilities or other congenital defects, and Pacheco's two older children were born without congenital defects. S.L.P.'s PMG was determined to be "idiopathic, meaning medicine can't find a reason why" it occurred. Id. at 189.

¶7 In March 2017, Pacheco, Lemus, and S.L.P. filed an amended complaint against the United States pursuant to the Federal Tort Claims Act (FTCA), Pub. L. No. 79-601, 60 Stat. 812-852, in the United States District Court for the Western District of Washington, seeking damages relating to Pacheco's pregnancy and S.L.P.'s PMG. It is undisputed that "the United States is the only proper defendant, and the FTCA is the exclusive remedy available to plaintiffs." Id. at 93. "Under the FTCA, the law of the state where the tort allegedly occurred controls issues of liability." Order Certifying Question to Wash. Supreme Ct., Pacheco v. United States , No. 21-35175, at 6 (9th Cir., Jan. 3, 2022) (Order Certifying Question) (citing Daly v. United States , 946 F.2d 1467, 1469 (9th Cir. 1991) ).

¶8 The United States filed a motion to dismiss the amended complaint, which the district court denied. The court ruled that whether the alleged damages relating to S.L.P.'s PMG were recoverable depended on whether they were "reasonably foreseeable" because " ‘[t]he concept of foreseeability limits the scope of the duty owed.’ " CP at 96 (quoting Christen v. Lee , 113 Wash.2d 479, 492, 780 P.2d 1307 (1989) ). The court decided that the issue of foreseeability in this case must go to trial because a "reasonable fact finder could conclude that the birth of a child with a medical condition or disability is within the ambit of the harms that could reasonably be expected to arise" from the negligence alleged. Id.

¶9 Following bench trial on liability in January 2020, the court found that Neighborcare failed to follow the "minimum ... standard of care in the circumstances presented" and that if Pacheco had "received a Depo-Provera injection on September 30, 2011, she would not have conceived." Id. at 72. The court further found "that the birth of a child with a medical condition or disability is a foreseeable result [of] the negligence that occurred here." Id. at 73 n.2. Based on its findings, the court concluded that that Neighborcare breached its duty of care, which "resulted in and proximately caused injury." Id. at 73. The court also concluded "there is no contributory or comparative negligence" by Pacheco. Id.

¶10 Following a bench trial on damages in September 2020, the court found that the United States was liable for (1) $42,294.81 in past special damages for Pacheco's pregnancy-related expenses, (2) $7.5 million for "SLP's future special damages for extraordinary medical, educational, and similar expenses attributable to her conditions," and (3) general damages for the " ‘mental anguish and emotional stress’ " of Pacheco ($1.5 million) and Lemus ($1 million). Id. at 52-53 (quoting Harbeson v. Parke-Davis, Inc. , 98 Wash.2d 460, 477, 656 P.2d 483 (1983) ). The court thus entered an amended judgment against the United States totaling $10,042,294.81.

¶11 The United States appealed, conceding its liability for damages "associated with pregnancy and childbirth" but contending that "it was inappropriate to extend liability to the effects of the neurological disorder." Id. at 7. The Ninth Circuit Court of Appeals heard oral argument on December 14, 2021, and certified a question to this court on January 3, 2022. As formulated by the Ninth Circuit court, the question is:

Under claims for wrongful birth or wrongful life, does Washington law allow 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 ?

Order Certifying Question at 3. The court did "not intend the phrasing of our question to restrict the Washington Supreme Court's consideration of the issue" and further "recognize[d] that the Washington Supreme Court may, in its discretion, reformulate the question." Id. at 17 (citing Broad v. Mannesmann Anlagenbau AG , 196 F.3d 1075, 1076 (9th Cir. 1999) ).

¶12 We exercise our discretion to reformulate the certified question slightly to refer to claims for "negligent reproductive health care" generally, rather than "wrongful birth or wrongful life" specifically. This phrasing better aligns with the record because the plaintiffs' amended complaint does not "parse their medical negligence claim into the different categories of ‘wrongful birth,’ ‘wrongful conception,’ ‘wrongful negligence,’ or ‘wrongful life.’ " CP at 92 n.2. Moreover, as discussed below, relying on such categories to define the scope of liability for negligent reproductive health care is contrary to Washington law.

ISSUE

¶13 Under claims for negligent reproductive health care, does Washington law allow 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 ?

ANALYSIS

¶14 In Washington, "[e]very individual has the fundamental right to choose or refuse birth control" and "[e]very pregnant individual has the fundamental right to choose or refuse to have an abortion." RCW 9.02.100(1) - (2). In addition, our legislature has recognized that reproductive health care is "an essential part of primary care for women and teens." LAWS OF 2018, ch. 119, §...