BANGOR, Maine — Kayla Doherty believed she was being responsible when in February 2012 she went to a government-owned medical clinic in Albion to have a long-lasting birth control device implanted in her arm.
Doherty, whose father, David Doherty, died of a heart attack at age 48 when she was 10, watched her mother, Marcia Witham, 52, of Pittsfield, struggle as a single parent. Doherty had hoped to be on her feet financially before she had children.
When she left the Lovejoy Health Center, Doherty, of Newport, believed the device, made by Merck & Co. Inc. of New Jersey, had been properly implanted and she was protected from pregnancy for three years.
That was not the case.
On June 9, 2014, Doherty, then 21, gave birth to a healthy boy named Blake, whom she is raising alone.
“I went to the doctors to get semi-permanent birth control because it’s easier than pills and then, come to find out, it was never placed in my arm,” she said earlier this month. “I decided to get a lawyer in case this happens to anybody else. It’s good to let people know that this can happen.”
The young mother, now 23, is suing the U.S. government, which owns the clinic, and Merck, alleging that the device was never implanted in her arm because of negligence on the part of the clinic’s staff and because the product is defective. She is seeking $250,000 in damages.
Doherty learned she was pregnant in September 2013 when she began feeling sick.
“I was scared, really scared, because I didn’t know that was possible,” she said of how she felt.
She went to the same clinic so staff could locate the implant and remove it. When they could not find it, Doherty was sent to Inland Hospital in Waterville.
“They did ultrasounds on my arms to see if it could have moved anywhere,” she said. “The ultrasound tech said it was never inserted, that it had never been placed in me, so it was possible to get pregnant. I was shocked. I thought I was protected.”
She decided to go ahead with the pregnancy.
“I thought it was meant to be for some reason or other,” Doherty said.
Doherty had to drop out of Thomas College in Waterville, where she was studying business. Now, she works about 25 hours a week as a cashier in a grocery store and struggles to make ends meet.
“My life is hectic now,” she said. “It’s hard to find day care for him sometimes. And it’s expensive and he’s expensive. Life is more expensive in general with a baby.”
Doherty qualified for public assistance during her pregnancy and continues to receive MaineCare, which covers her son’s medical expenses.
Her attorney, Laura White of Kennebunk, filed the lawsuit in April in U.S. District Court in Bangor. It alleged the clinic, which employed Doherty’s physician, Dr. Amanda Ruxton, was medically negligent in its treatment of Doherty and failed to obtain her informed consent before attempting to implant the device. Ruxton has not been sued, White said.
The lawsuit also claimed that Merck manufactured a defective product that had a history of insertion problems.
Efforts to reach attorneys for Merck for comment were unsuccessful.
In documents answering the complaint, attorneys for Merck claimed that Maine law prevents Doherty from being compensated because “an unplanned pregnancy followed by the birth of a healthy child is not a recognized, actionable injury under Maine’s Wrongful Birth Statute.”
The lone exception under the statute is for failed sterilization procedures such as a vasectomy or tubal ligation.
Assistant U.S. Attorney Andrew Lizotte, who is representing the clinic, declined to comment on the case but agreed with attorneys for Merck in a motion to dismiss the case. The Maine Attorney General’s Office has been granted intervenor status in the case and argued the law is constitutional.
In response, White filed a motion asking U.S. District Judge D. Brock Hornby to refer questions about whether Doherty may pursue the lawsuit to the Maine Supreme Judicial Court.
Hornby will hold a hearing on that motion on Thursday, Dec. 3, in federal court in Portland.
“They are trying to close the courthouse doors on my client based on the idea that motherhood is nothing but a blessing,” White said recently. “It also violates her right to jury trial and there are all kinds of equal protection and due process claims. We know by now that the right to make decisions about reproduction is a fundamental right and it can’t be taken away by a state law.”
The wrongful birth statute, passed by the Maine Legislature in 1986 along with other tort reform measures, according to White, was enacted when medical malpractice rates for obstetricians and general practitioners were rising. Lawmakers were concerned that if they did not limit potential lawsuits, rising malpractice rates would prevent doctors in rural areas from offering prenatal and delivery care.
“They weren’t thinking about long-lasting, implanted birth control devices,” the attorney said.
When inserted properly, the device — which is 1.6 inches long, described on some websites as the size of a toothpick — releases a low-level contraceptive hormone that inhibits ovulation and prevents pregnancy, according to court documents filed by lawyers for Merck. It lasts three years and its contraceptive effects are reversible in a matter of days after its removal.
It should be inserted, using a syringe-like applicator designed by Merck, just under the skin on the inner side of the upper arm, between the bicep and tricep muscles, according to the complaint.
When inserted properly, its devices are 99 percent effective in preventing pregnancy, Merck has claimed.
One of the unknowns in the case is which one of two products staff at the clinic thought they were inserting in Doherty’s arm.
“Her medical record says it was Implanon but she was billed for Nexplanon,” White said.
Both products have a history of failed attempts at insertion due to a defectively designed applicator, the complaint said. Implanon was taken off the market in 2010 and replaced with Nexplanon, according to the complaint. Nexplanon contains 15 milligrams of barium sulphate and a different applicator so it would show up on an X-ray or sonogram but was nearly identical to Implanon in every other way, the complaint states.
White said in the complaint that Ruxton used a syringe to create a hole in Doherty’s arm to insert the device but did not examine it or have Doherty examine her own arm to see if either of them could feel the device, as Merck recommends to consumers on its website, Nexplanon.com.
“If you and your health care provider cannot feel the Nexplanon implant, use a non-hormonal birth control method (such as condoms) until your health care provider confirms that the implant is in place,” it states in bold letters. “You may need special tests to check that the implant is in place or to help find the implant when it is time to take it out.”
The BBC reported in January 2011 that of the 1.4 million women in the United Kingdom who had used Implanon since 2000, 584 had become pregnant, with 1,609 reporting adverse reactions. Nine were compensated for damages by the National Health Service, the BBC reported.
Stephanie Prior, an attorney in London who represented 14 women who had used Implanon, told a British television station that “many had not realized the preloaded applicator had not released the implant.”
There also is a class-action lawsuit pending in federal court in Ohio alleging that Implanon, although inserted properly, could not be located in patients’ bodies to be removed three years later.
Several law firms specializing in personal injury claims in different parts of the country sought clients who had developed blood clots while using Nexplanon.
No matter what happens with the lawsuit, Doherty said she never regrets her decision to continue her pregnancy and give birth.
“I knew it was going to be tough, but you don’t realize how tough it is until they are actually here,” she said. “I wouldn’t trade him for the world. He’s fun.”