PORTLAND, Maine — A Newport woman may not recover any damages from an Albion clinic or the drug manufacturer over the failed insertion of a long-term birth control device, members of the Maine Supreme Judicial Court unanimously ruled Thursday.
On June 9, 2014, Kayla Doherty, then 21, gave birth to a healthy boy named Blake, whom she is raising alone. Doherty believed she could not get pregnant because she was using a birth control designed to prevent pregnancy for three years. When she learned she was pregnant, Doherty was told the device was never inserted into her arm as she believed it had been.
Doherty sued drug manufacturer Merck & Co. Inc. of New Jersey and the United States, which funds and is required by law to defend the Lovejoy Health Center from lawsuits, in federal court in Bangor in 2015 seeking $250,000 in damages.
The Maine attorney general’s office was granted intervenor status in the case because Doherty challenged the constitutionality of the law. The justices did not rule on that issue.
She argued in her suit that a physician at the clinic negligently failed, as a result of Merck’s defective applicator, to insert the device into her arm. Doherty also claimed that the doctor never checked to see if it actually was in her arm and not still in the applicator.
Attorneys for Merck claimed that Maine law prevents Doherty from being compensated because “an unplanned pregnancy followed by the birth of a healthy child is not a recognized, actionable injury under Maine’s wrongful birth statute.”
The lone exception under the statute is for failed sterilization procedures such as a vasectomy or tubal ligation.
U.S. District Judge D. Brock Hornby referred questions to the Maine Supreme Judicial Court in late 2015 asking whether under Maine’s wrongful birth statute, Doherty could sue and recover damages.
The justices heard oral arguments in September 2016 in Fort Kent during the high court’s annual high school tour and issued their decision Thursday.
The justices found that Maine’s wrongful birth statute, enacted in the mid-1980s, protected Merck and the federal government from liability in Doherty’s case and prevented her from collecting damages because the law’s only exception is for permanent sterilization, not any form of birth control.
“The Legislature intended ‘sterilization procedure’ to include medical or surgical procedures that alter the body’s anatomy for the purpose of permanently ending the possibility of procreation,” Justice Andrew Mead wrote for the court. “The term does not include temporary pharmaceutical intervention in the reproductive process, such as the implant Doherty sought, nor does it include physical intervention, such as an intrauterine device, that is designed to be reversible without permanently altering the body’s reproductive organs.”
“We’re discouraged, but we are not giving up,” Doherty’s attorney, Laura White of Kennebunk, said late Thursday. “We’re happy the constitutional question remains alive.”
White said if the federal judge were to grant an expected motion to dismiss from the defendants, Doherty would appeal to the 1st U.S. District Court of Appeals in Boston.
Efforts to reach attorneys for Merck were unsuccessful Thursday.
“We agree fully with the Law Court’s well-reasoned interpretation of the wrongful birth statute and its conclusion that the plaintiff lacks a claim for damages against the United States,” Assistant U.S. Attorney Andrew Lizotte said of the decision.