The Maine Supreme Judicial Court ruled Thursday that a Newport woman who gave birth after a health center failed to install a temporary birth control device may not recover damages from an Albion health center or the device’s manufacturer.

Kayla Doherty gave birth to a healthy boy in June 2014, when she was 21.

But she had visited a federally supported health care center in February 2012 to have an implantable birth control drug manufactured by Merck inserted into her arm. The device is designed to be effective for at least three years by inhibiting ovulation.

Upon learning she was pregnant, she was examined and told the device had never been implanted. She gave birth in June 2014.

Doherty filed suit against Merck on claims of “strict product liability, breach of warranty, negligence, and negligent misrepresentation”; and against the United States for negligence of the physician. She sought $250,000 in damages.

Both Merck and the government moved to dismiss the complaints on the grounds that a healthy child is not a legally recognized injury, and that Doherty’s failed procedure did not meet the legal standard for a failed sterilization procedure that would allow her 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 – a medical or surgical procedure that alters the body “for the purpose of permanently ending the possibility of procreation” – results in the birth of a healthy child, with damages awarded for medical expenses and loss of earnings.

The court said Doherty’s claim did not meet the standards of the statute, in part because temporary birth-control implants such as the one Doherty believed had been inserted into her arm are not legally recognized as sterilization procedures.

Colin Ellis can be contacted at 861-9253 or at:

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