February 28, 2020
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Attorney: High court will question Maine’s wrongful birth law

PORTLAND, Maine — The Maine Supreme Judicial Court will be asked to interpret Maine’s wrongful birth law, amid a lawsuit from a Newport mother against a health care clinic and pharmaceutical firm over the failed implementation of a birth control device, according to her attorney.

In April, Kayla Doherty sued the U.S. government, which owns the Lovejoy Health Center in Albion, where she sought long-term birth control, and Merck & Co. Inc. of New Jersey, alleging 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.

Doherty, 23, learned she was pregnant in September 2013 when she began feeling sick. On June 9, 2014, Doherty, then 21, gave birth to a healthy baby boy, Blake, whom she is raising alone.

She seeks $250,000 in damages under the state’s wrongful birth law, which concerns claims against doctors when children are born unhealthily due to malpractice or negligence. Doherty’s case will test whether this law will apply to children born healthy.

U.S. District Court Judge D. Brock Hornby on Thursday denied motions to dismiss the lawsuit, according to information posted on the court’s electronic case filing system.

Doherty’s attorney, Laura White, said Thursday the judge will now send questions about the constitutionality of the Maine statute that prevents a parent from filing a lawsuit after the birth of a healthy child to the justices.

As of 5 p.m. Friday, however, Hornby had not yet filed an order asking the state supreme court to weigh in on the issue.

The state supreme court is not likely to hear arguments in the case until next year, after written briefs from the parties and other interested parties, such as the Maine Medical Association, have been filed.

In documents answering the complaint, attorneys for Merck claimed 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 has argued the law is constitutional. Efforts to reach attorneys for the pharmaceutical firm have been unsuccessful.

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