Doherty v. Merch & Co., Inc.

154 A.3d 1202 (2017)

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Nature of the Case

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Facts

P visited a federally-supported health care center to inquire about birth control options. She saw a physician, who recommended the use of an implantable drug manufactured by D consisting of a single, four-centimeter-long rod inserted under the skin of the inner side of the patient's upper arm with a syringe-like applicator. The procedure was performed. The physician failed to check her arm to see if it was successful. Months later a pregnancy test at the health care center confirmed that P was pregnant. An examination and ultrasound failed to locate the rod in either of P's arms. A nurse later told Doherty that the physician 'believes it was never inserted.' P gave birth to a healthy son. P endured a long and painful delivery. She suffered nausea, mental and physical pain and suffering, insomnia, swelling, and weight gain. P incurred expenses, and lost wages as a result of missing work for medical appointments. After the birth, P received mental health counseling and suffered emotional distress as a result of being unprepared to raise a child as a single mother. P filed a complaint against Merck (D). She alleged strict product liability, breach of warranty, negligence, and negligent misrepresentation. P sued the United States for the negligence of the physician, and for the physician's failure to obtain her informed consent. The court denied without prejudice Ds' motion to dismiss P's complaint. It certified three questions: 1. Does the protection of Maine's Wrongful Birth statute, 24 M.R.S.A. § 2931, extend to D as a drug manufacturer and distributor? 2. If not, does the Law Court's decision in Macomber v. Dillman, 505 A.2d 810 (Me. 1986), which concerned a failed sterilization by a health care provider, apply to P’s claim against D as a drug manufacturer and distributor? 3. Does Maine's Wrongful Birth statute prohibit all recovery for P against both defendants because of the nature of the procedure she underwent? Or does the statute allow P to proceed with her claims but limit the recoverable damages to her expenses incurred for the procedure and pregnancy, pain and suffering connected with the pregnancy, and loss of earnings during pregnancy?