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Pacheco v. United States

United States District Court, W.D. Washington

February 22, 2017

YESENIA PACHECO, LUIS LEMUS, and S.L.P., minor child, by and through her Guardian ad Litem Brian Comfort, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

          A ROBERT S. LASNIK UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on “Plaintiffs' Motion for Summary Judgment to Hold Defendant Liable On Plaintiffs' ‘Wrongful Birth' and ‘Wrongful Life' Claims.” Dkt. # 20. Having reviewed the memoranda submitted by the parties, including plaintiffs' reply, Dkt. # 26, and the government's supplemental surreply, Dkt. # 31, and having heard oral argument on the motion, [1] the Court finds as follows.

         I. Background

         Plaintiffs, Yesenia Pacheco and Luis Lemus and their child, S.L.P., bring claims for “wrongful birth” and “wrongful life” pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, et seq., and RCW 7.70.030 (1) and (3) as interpreted by Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460 (1983).

         Pacheco was a patient at NeighborCare Health, a Federally Qualified Community Health Center. Plaintiffs allege that the health care providers at NeighborCare Health acted on behalf of defendant, the United States, in providing treatment within the scope of their employment. Pacheco received Depo-Provera[2] injections at NeighborCare Health on January 24, 2011, April 12, 2011, and July 5, 2011. Dkt. # 1 at 4; Dkt. # 9 at 3. Pacheco had scheduled a Depo-Provera injection at NeighborCare Health for September 30, 2011. Gloria Rodriguez, a certified medical assistant at NeighborCare Health, administered a flu vaccination to Pacheco on September 30, 2011. Rodriguez did not administer a Depo-Provera injection at that time. Pacheco thereafter conceived and she gave birth to S.L.P. on August 2, 2012. Plaintiffs allege that S.L.P developed clinical seizure activity involving convulsive movements.

         Plaintiffs filed this suit in July 2015, arguing that defendant is liable on plaintiffs' wrongful birth and wrongful life claims because Pacheco would not have given birth absent the clinic's incorrect injection. In September 2016, plaintiffs moved for summary judgment. Plaintiffs do not ask the Court to decide the nature or extent of plaintiffs' damages in the context of this motion.

         II. Discussion

          A. Summary Judgment Standard

         Summary judgment is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). The moving party “bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It need not “produce evidence showing the absence of a genuine issue of material fact” but instead may discharge its burden under Rule 56 by “pointing out . . . that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate “specific facts showing that there is a genuine issue for trial.” Id. at 324. Although the Court must reserve for trial genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the “mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         B. Negligence

         The FTCA provides that the United States is liable only “if a private person[] would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The substantive law of Washington applies because the alleged negligence occurred in Washington State. Dkt. # 1. In order to establish wrongful birth or life claims under Washington law, plaintiffs bear the burden of establishing duty, breach of duty, proximate cause, and damages. See generally Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460 (1983); see also RCW 7.70.030-050. Washington law provides that two main duties may be at issue in this case: the duty to perform medical procedures with due care and the duty to obtain informed consent. See RCW 7.70.030(1), (3); Harbeson, 98 Wn.2d at 466-67.

         With respect to the first duty, plaintiffs contend that defendant failed to exercise due care when Rodriguez allegedly injected Pacheco with the wrong substance. As for the second duty, plaintiffs contend that defendant failed to obtain informed consent when Rodriguez allegedly failed to inform Pacheco that she would be injecting her with a flu shot in lieu of the Depo-Provera birth control. Plaintiffs contend that these breaches of duty caused the injury because a flu shot is ineffective in preventing an unwanted pregnancy. The parents' injury for the wrongful birth claim is the unwanted birth of the “defective” child, which may have produced damages for mental anguish and the medical expenses attributable to the child's birth and defective condition. See id. at 473-75. S.L.P.'s injury for the wrongful life claim includes the expenses of medical care and special training. See id. at 482.

         C. Genuine Issue of Material Fact

         The parties agree that Pacheco scheduled a Depo-Provera injection for September 30, 2011 and instead received a flu vaccination. Dkt. # 20 at 7; Dkt. # 23 at 6. The dispute between the parties is whether Pacheco agreed and understood that she would be receiving a flu vaccine instead of a Depo-Provera injection. Dkt. # 23 at 6; Dkt. # 26 at 9. If Pacheco did agree and understand then there was no ...


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