Two weeks ago our Chicago birth injury lawyers discussed the Pfizer birth control recall issue. The recall involves one million birth control packets which awere apparently mislabeled. Pills which had active ingredients were mistakenly mixed up with placebos. What that means is that those who received these packets may not have the birth protection that they thought. This is a very complex and problematic situation with a range of legal issues implicated.
An extended story in the Atlantic Magazine on the subject discussed some of those legal complications. Our Illinois birth injury lawyers know that legal liability in this situation is less straight forward than most birth injury cases. That is because at the root of these claims beyond the product liability aspect would be “wrongful birth.” Wrongful birth lawsuits-as their name implies, stem from situations where the negligence of another party caused a woman to become pregnant with a child than she otherwise wouldn’t have had.
One basic question is what is the negligent party’s legal responsibility? The damage could be calculated in a number of ways: the cost of terminating the pregnancy, the cost of carrying it to term, or even the cost of rearing the child over a lifetime. In addition, should the physical and mental health damage caused by the situation be included? These and similar questions are still unsettled in some areas, because wrongful birth cases do not come up all that much-and certainly not on the scale that may exist as a result of this recall.
In general, wrongful pregnancy cases most often involve damages which are determined by adding up the cost of the pregnancy, childbirth, and mental and physical injuries related to the birth. It is often far harder for a mother to receive compensation for rearing a child, and often that amount is offset by a court determined figure which accounts for the “value of having a healthy child.”
However, this Pfizer lawsuit may buck some previous trends. That is because experienced birth injury lawyers know that virtually all previous wrongful pregnancy cases stem from failed sterilization issues-like an ineffective vasectomy-not from a product packaging error. In fact, legal scholars looking at the issue over the past few days have found only one federal case that seems to speak to the issue. In Troppi vs. Scarf in 1971, a pharmacist mistakenly filled a birth control prescription with tranquilizers. The woman who took the pills got pregnant. This particular plaintiff already had seven children and sought compensation because she specifically took the medication because she did not feel that she could afford another child. At first the lower court dismissed the claim. However, an appellate court reversed and awarded damages which, in part, accounted for the cost of rearing a child.
It will be important to follow these developments as they arise. For one thing, those who took the recalled pills must be particularly vigilant about their use of the product. It is always better to stop using the mistakenly packaged drug and not risk a potential unwanted pregnancy. However, those who have already taken the recalled products should be on notice. If you actually do become pregnant and suspect that the mistakenly labeled pills might be a cause, it is important to visit with a legal professional as soon as possible to protect your rights.
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