The Maine Supreme Judicial Court ruled Thursday that an Newport woman may not recover damages from an Albion health center or drug manufacturer after she gave birth following a procedure in which she was told a birth control instrument was inserted into her arm.

Kayla Doherty gave birth to a healthy boy in June 2014, when she was 21. However, on Jan. 26, 2012, Doherty said, she went to a federally supported health care center in Albion to look into birth control options.

According to the decision filed by the high court, Doherty saw a physician who recommended an implantable drug manufactured by Merck, which consists of a 4-centimeter-long rod that is inserted into a patient’s arm. The drug is designed to be effective for at least three years and inhibits ovulation. Doherty went through the procedure on Feb. 28, 2012, but later learned the device never was actually installed.

She believed she could not get pregnant, but a pregnancy test at the health care center in October 2013 revealed she was in fact pregnant.

An examination and subsequent ultrasound couldn’t locate the device in either of Doherty’s arms, and she was told by a nurse it was never inserted. She gave birth in June 2014.

Doherty filed a lawsuit again Merck on theories of “strict product liability, breach of warranty, negligence, and negligent misrepresentation”; and against the United States for negligence of the physician and the physician’s failure to obtain her informed consent. She sought $250,000 in damages.

The complaint also asked the federal court to declare the “wrongful birth” statute unconstitutional.

Both Merck and the government moved to dismiss the complaints on the grounds that a healthy child is not a legally recognized injury for which Doherty could recover damages, and that Doherty did not undergo a failed sterilization procedure that would allow Doherty to claim damages under the state’s wrongful-birth statute.

The statute says, in part, that it is contrary to public policy to award damages for the birth or rearing of a healthy child. It says a person may claim relief if a failed sterilization procedure results in the birth of a healthy child, and the individual may receive damages for medical expenses and loss of earnings. The court said Doherty’s claim was barred by the statute.

The court was asked to answer three questions to determine whether Doherty could claim damages under the wrongful-birth statute, and by answering those questions the court determined Doherty could not recover damages from either defendant.

The court concluded that a sterilization procedure was a medical or surgical procedure that alters the body “for the purpose of permanently ending the possibility of procreation.” The court went on to say sterilization procedures do not include temporary pharmaceutical intervention such as the implant Doherty believed had been inserted into her arm.

Colin Ellis — 861-9253

cellis@centralmaine.com

Twitter: @colinoellis

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