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Pacheco v. United States

injecting medicine to patient

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-35175

Opinion Date: January 3, 2022

Judge: Murguia

Areas of Law: Health Law, Medical Malpractice, Personal Injury

This case law update is brought to you by Freeway Law auto accident and personal injury lawyers in Orange County. The following is not one of our cases, but it is of some significance, and we thought we should share it with our readers for informational purposes. The information above is for informational purposes only and not to be construed as legal advice.

Pacheco received Depo-Provera injections from NeighborCare, a federally-qualified community health center. Depo-Provera is a highly effective contraceptive that requires injections every 11-13 weeks. Pacheco visited NeigborCare in September 2011, for an “on-time” injection. A NeighborCare employee instead injected Pacheco with a flu vaccine. Pacheco alleges that she did not consent to a flu shot and did not learn that she received a flu shot instead of her scheduled injection until she called NeighborCare for her next injection. Pacheco’s child, S.L.P., was born with epilepsy and bilateral perisylvian polymicrogyria, which contributes to neurological delays.

The district court found that Rodriguez failed to meet the minimum standard of care and that the unwanted pregnancy, birth, and medical expenses associated with S.L.P.’s condition were foreseeable consequences caused by the negligence and awarded $10,042,294.81.

The Ninth Circuit noted that the negligently performed procedure here was not “intended to prevent the birth of a defective child,” but to “prevent the birth of an unwanted child,” so this case lies outside the duty imposed on healthcare providers to assume responsibility when they encumber parents’ rights by failing to adequately complete procedures to prevent the births of defective children. The court certified the question to the Washington Supreme Court: 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 defendants negligently provided contraceptive care even though plaintiffs did not seek contraceptives to prevent conceiving a child later born with birth defects?

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