A federal judge has awarded just over $10 million toward the future care of a severely disabled child born because a nurse at a Seattle community clinic negligently gave the mother a flu shot instead of her quarterly birth-control injection.
U.S. District Judge Robert Lasnik awarded the child, identified in court documents by the initials “SLP,” a total of $7.5 million for the girl’s “extraordinary medical, educational and similar expenses” that will accrue throughout her life.
The judge last week awarded $1.5 million to the child’s mother, Yesenia Pacheco, and $1 million to the father, Luis Lemus, to “compensate for mental anguish and emotional stress” as a result of the unwanted pregnancy. The family received an additional $42,294 to compensate for two Medicaid liens, according to court documents.
“This has been a hard-fought battle” that lasted eight years while the government refused to take responsibility for the negligence of a nurse at a federally funded clinic, said Seattle attorneys Mike Maxwell and Steve Alvarez, who represented the family in what’s described in court documents as a “wrongful pregnancy … wrongful life” case. The lawsuit was filed in 2015, three years after SLP was born.
“Luis and Yesenia Pacheco are pleased that they’re closer to receiving the funds needed for their daughter’s extraordinary medical care and training,” they wrote in a joint statement that was sharply critical of the government’s refusal to accept responsibility at the outset.
“It was a long hard road for the family,” they said.
Emily Langlie, a spokesperson for the U.S. Attorney’s Office in Seattle, which defended the lawsuit, said some of the delays were necessary to ensure medical experts could accurately measure the extent of the child’s disabilities.
According to court documents and testimony in a two-day bench trial held before Lasnik in January, Pacheco — an El Salvadoran refugee who moved to the U.S. when she was 16 — had gone to a Neighborcare Health center in Seattle on Sept. 30, 2011, to receive an injection of Depo-Provera, a hormone used for birth control. Women using the treatment are supposed to receive an injection roughly every three months to prevent pregnancy. Pacheco, who already had two children with Lemus and was trying to avoid another pregnancy so she could help support her family, had made an appointment for the hormone treatment for that day, according to the pleadings.
However, a nurse at the clinic who had been administering walk-in flu shots all day apparently did not check Pacheco’s chart and gave Pacheco the flu vaccine instead of the birth-preventing hormone, the court found. Pacheco didn’t discover the mistake until she called to make her next appointment, more than two months later. By then, she was pregnant, the documents say.
“Ms. Pacheco had not planned or intended to become pregnant in the fall of 2011 and had taken affirmative steps to avoid an unwanted pregnancy,” wrote Lasnik in a March order finding the government liable for the unwanted pregnancy and “wrongful life” that resulted.
“Had she received a Depo-Provera injection on September 30, 2011, she would not have conceived. The unintended pregnancy and birth of S.L.P. were foreseeable consequences of [the nurse’s] error,” the judge wrote.
“The risk that a child will be born with a medical condition or disability is within the general field of danger that arises when a medical provider fails to use reasonable care in a procedure designed to prevent pregnancy,” Lasnik concluded.
The documents indicate that SLP is now 8 years old and in third grade at an Everett-area school. According to court documents, she suffers from a birth defect known as bilateral perisylvian polymicrogyria (PMG), which has resulted in cognitive delays, slowed speech and language skills, epilepsy, vision problems and other complications. She has an IQ of 70, according to the family’s attorneys. Maxwell said that she will live a normal life span, and will require some level of care and assistance for all of it.
Lasnik, in awarding the damages, has asked the parties to submit suggestions on how it should be distributed. The government is asking that some of it be placed in a “reversionary trust” that would ensure that, should SLP die or not need the funds, the money would go back to the government.