Court Rules Against Collecting Damages for Pregnancy After Birth Control Procedure

Portland, METhe Maine Supreme Judicial Court ruled recently that a woman who filed an Implanon lawsuit against Merck & Co. and a federally funded health center for a failed birth control procedure with an implantable device may not recover damages for an unplanned pregnancy.

Kayla Doherty filed a lawsuit Kayla Doherty v. Merck & Co. Inc. et al, Case No. 1:15-cv-00129, US District Court, District of Maine in April 2015 after she gave birth to a healthy baby boy 18 months after a federally supported health care center performed a procedure to insert an implantable birth control drug that inhibits ovulation into her arm.

The implantable contraceptive, identified in the lawsuit as either Implanon or Nexplanon, is a matchstick-sized rod containing a birth control drug that is inserted into the patient's arm. The drug is designed to be effective for three years.

Doherty assumed the insertion procedure performed by the health care center in Feb. 2012 was a success. However, when a pregnancy test revealed in Oct. 2013 that she was pregnant, a subsequent examination and ultrasound couldn't locate the device in either of Doherty's arms. A nurse informed Doherty that a clinic doctor believed that the device was never inserted, according to the lawsuit.

Both Implanon and Nexplanon have records of failed insertion attempts due to defectively designed applicators, according to the complaint.

Merck filed a motion to dismiss the lawsuit on the grounds that a healthy child was not a legally recognized injury for which to recover damages and that Doherty didn't undergo a failed sterilization procedure that would allow her to claim damages under Maine's wrongful birth statute, according to Centralmaine.com.

Then on Jan. 26, the Maine Supreme Judicial Court issued a decision that Doherty cannot legally collect damages on the wrongful birth and failed sterilization claims on the pending lawsuit.

The FDA in March 2016 issued a safety warning for Implanon (etonogestril) implants due to reports of the device migrating from its insertion point to other parts of the body. Around 500,000 women in the US have used Implanon since the FDA approved the device in July 2006.

Doherty isn't the first woman to sue Merck in regard to its implantable birth control device. Two women filed a lawsuit Brook Reynolds et al v. Merck Sharp & Dohme Corp., Case No. 3:15-cv-397, Northern District of Ohio, Western Division against Merck in March 2015, claiming that their Implanon device migrated after insertion.

That lawsuit is also pending.