October 20, 2011
About a month ago, I posted about a lawsuit over some mixed up prescriptions.
And now we have another one.
This one’s a little different than the last, though.
Where the last one involved pharmacists mistakenly (and repeatedly) filling the wrong prescription, this one involved a relatively simple packaging error.
Namely, the packaging of the pills inside the pill box was rotated 180 degrees.
With the vast majority of medication, this little mix-up is harmless.
For oral contraceptives, as women taking them know, it’s a different story.
Such an error, predictably, is the subject of this lawsuit.
Lauren Betancourt is suing Qualitest Pharmaceuticals and its parent company Endo Pharmaceuticals because she became pregnant as a result of the packaging error.
How do we know the packaging mistake is attributable to the defendant pharmaceutical companies, and not some other third party intermediary between the drug company and Betancourt?
Coincidentally, Qualitest issued a recall in September on the birth control bills in question, citing the exact packaging defect as the reason.
In spite of this, Betancourt’s case isn’t a slam dunk, since the suit raises some unique legal questions.
Assuming that causation is firmly established and the defendants are liable; will Betancourt be able to collect any damages?
This is actually where things get interesting.
As you’d probably guess, Betancourt is claiming the unwanted pregnancy as damages, in addition to any injuries caused to her child In Utero (due to taking contraceptives while pregnant).
The latter injuries (to the unborn child) are clearly recoverable as damages if and when any such injuries materialize (they do raise an entirely new causation question, but it isn’t worth getting into here).
The former injury (the pregnancy itself) may or may not be so recoverable.
To be sure, there have been plenty of other cases involving “wrongful pregnancies,” but the vast majority of the cases relate to botched abortions or sterilizations, and are thus typically directed at physicians, not pharmaceutical companies.
In my admittedly brief research of the topic, I was unable to locate any cases involving wrongful pregnancy and birth control pills (or any other contraceptive).
Since we nonetheless have (alleged) medical negligence that caused an unwanted pregnancy, it is entirely possible, if not likely, that Betancourt may be able to recover here.
The question is “how much?”
If other wrongful pregnancy cases are any indication, she would be able to recover the costs of the medical expenses associated with the pregnancy and birth, in addition to any other damages caused by the pregnancy.
Luckily for the defendants, though, the vast majority of jurisdictions don’t allow the recovery of child-rearing costs for an unwanted pregnancy as damages.
That’s for a healthy child only, however.
Should Betancourt’s unborn child turn out to have any birth defects found to be caused by the defendants’ negligence, they are going to be paying quite a bit more in damages, to say the least.
Hopefully, for all of the parties involved, that’s a really big if.
No matter how the case turns out, though, it still serves as an example of how a minor packaging error can have major legal repercussions.