Pat Murphy, The Daily Record Newswire
A Wisconsin woman noticed that the birth control pills she received from her family health clinic in February 2009 looked a little different. A positive pregnancy test ten weeks later removed any doubt that she had been given prenatal vitamins instead.
Wednesday, a state court gave the young mother a slight glimmer of hope in her personal injury suit against the clinic.
Shelby Nell delivered a healthy baby boy on Dec. 3, 2009. Nell was 21 at the time and the newborn was her second child. Nell had her first son when she was 19.
To say her second son was unplanned is an understatement.
In early February 2009, Nell refilled a prescription for birth control pills at the Froedtert & Community Health, West Bend Clinic. When she picked up her prescription, she noticed that the pills were different than the birth control pills she was used to getting. The pills were larger and there were none of the usual birth control pill containers in the bag from the pharmacy.
Nell had been taking birth control pills on and off since she was 15, so she was familiar with what they looked like. But while Nell admitted that she was confused at the time, she claimed she was “too embarrassed” to call the clinic to make sure she had been given the right prescription.
She should have called.
Several weeks later, a friend told Nell that she thought the clinic had given her prenatal vitamins. Apparently, Nell suspected that something indeed was up because, on March 26, 2009, she went to the clinic to see her doctor. The doctor confirmed that her pills were prenatal vitamins instead of birth control pills.
This was definitely a problem because Nell was having regular sexual relations with her partner.
Alas, on April 23, 2009, the clinic confirmed that Nell was pregnant. Her medical records indicated that, as of April 30, she was seven weeks and three days pregnant.
After having the child in December, Nell filed a personal injury suit against the clinic for giving her the wrong pills. According to Nell, as a result of the clinic’s negligence, she experienced pain and suffering during and after her pregnancy, as well as loss of future earning capacity.
Moreover, Nell wanted the clinic to pay the cost of raising son number two until he reached the age of 18. The Washington County Circuit Court booted Nell’s lawsuit in its entirety on public policy grounds.
Wednesday, the Wisconsin Court of Appeals decided Nell’s appeal, and the news was not all bad for the young mother.
Unfortunately, the court agreed with the trial judge on the big ticket item in Nell’s lawsuit: Wisconsin law did not permit her to sue for the cost of raising a healthy child.
The court held that “public policy precludes recovery of the costs of raising a healthy child as damages for the negligent provision of prenatal vitamins when birth control pills were prescribed.”
In explaining the public policy rationale for the court’s holding, Judge Lisa S. Neubauer said that claims of “inadequate directions, wrong pills or any ineffectiveness of the chosen contraceptive method provide too many avenues for a parent to invent an intent to prevent pregnancy or ‘any possibility of change of mind or attitude.’”
Neubauer added that “whether the alleged intent to avoid the pregnancy is prior to conception or during an ongoing pregnancy, the public policy concern with fraud, given the potential size of the damage award, is the same.”
The good news for Nell was that the court concluded that public policy did not necessarily preclude the mother from recovering damages for her own injuries.
“Nell’s own injuries, however, might survive a public policy analysis because they are more akin to those commonly associated with a medical malpractice claim,” Neubauer wrote. “Nell must prove that her claimed damages are due to the clinic’s negligent provision of prenatal vitamins instead of birth control pills and that the clinic’s negligence was a
substantial factor in causing her personal injuries.” (Nell v. Froedtert & Community Health)
Neubauer sent Nell’s case back to the trial court for fuller consideration of her lawsuit, with the exception of her claim for child-rearing costs.
