Yesenia Pacheco, Louis Lemus, and their minor child, S.L.P., v. United States of America

San Francisco - Federal Tort Claims Act lawyer represented Plaintiffs-Appellees with an action brought under the Federal Tort Claims Act.

We summarize the material facts. Pacheco, Lemus, and

S.L.P., sued the United States under the Federal Tort

Claims Act ("FTCA”) alleging negligence on the part of

NeighborCare Health Center, a federally qualified

community health center. Pacheco visited NeighborCare in

December 2009 to discuss her birth control options, as she

"desired to prevent the birth of an unwanted child.” Five

days after her initial visit, Pacheco received a DepoProvera injection from NeighborCare. Depo-Provera is a

highly effective contraceptive that requires injections to be

administered every eleven to thirteen weeks. It is important

that the Depo-Provera injections are administered on time

to work as an effective contraception method. Pacheco

says she received Depo-Provera injections from

NeighborCare in March 2010, and January, April, and July

2011.

Pacheco called NeighborCare on September 29, 2011,

about twelve-and-a-half weeks since her last injection, to

schedule her next Depo-Provera injection. Pacheco visited

NeigborCare the next day to receive the shot. Pacheco was

supposed to receive this "on-time” injection from Gloria

Rodriguez, a NeighborCare employee. But instead of

administering the Depo-Provera shot, Rodriguez injected

Pacheco with a flu vaccine. Pacheco alleged in her

complaint that at her appointment on September 30, 2011,

she did not request or consent to a flu shot and was not

informed she received a flu shot from Rodriguez instead of

the scheduled Depo-Provera injection. The district court

found that Rodriguez failed to meet the minimum standard

of care, as she never confirmed the reason for Pacheco's

visit, failed to document consent to the flu vaccine she

administered, and never advised Pacheco of the side effects

PACHECO V. UNITED STATES 5

of the flu shot or the consequences of skipping a DepoProvera injection.

Pacheco did not learn that she received a flu shot

instead of her scheduled Depo-Provera injection until

December 2011, when she called NeighborCare to schedule

her next injection. At that time, NeighborCare informed

Pacheco that she was injected with a flu vaccine instead of

Depo-Provera at her last appointment and requested she

come to the clinic for a pregnancy test. Pacheco complied,

and her pregnancy test was positive.

Pacheco did not intend to become pregnant in the fall of

2011 and the district court found that "[h]ad she received a

Depo-Provera injection on September 30, 2011, she would

not have conceived.” Yet Pacheco gave birth to S.L.P. in

August 2012, after an emergency cesarean section. The

district court found that S.L.P. was born with epilepsy and

bilateral perisylvian polymicrogyria ("PMG”), a disability

that contributes to S.L.P.'s neurological delays, that will

impose future medical expenses on both S.L.P. and her

parents.

The district court ruled for the plaintiffs, holding that

the defendant United States was negligent in failing to

administer a Depo-Provera injection on September 30,

2011. The district court held that this negligence both

directly and proximately caused the plaintiffs' injuries.

Even though no party at first had reason to suspect a child

conceived by Pacheco would be born with a disability, the

district court held that the unwanted pregnancy, S.L.P.'s

birth, and the medical expenses associated with the

condition were foreseeable consequences caused by the

defendant's negligence.

6 PACHECO V. UNITED STATES

At a separate trial to address damages, the district court

awarded $10,042,294.81. Of that, the court awarded

$1,542,294.81 to Pacheco, $1 million to Lemus, and the

remaining $7.5 million awarded represented S.L.P.'s future

special damages.

II.

A.

Under the FTCA, the law of the state where the tort

allegedly occurred controls issues of liability. Daly v.

United States, 946 F.2d 1467, 1469 (9th Cir. 1991). The

Court reviews de novo the district court's interpretations of

state law and reviews its findings of fact for clear error. Id.

"The existence and extent of the standard of conduct are

questions of law, reviewable de novo, but issues of breach

and proximate cause are questions of fact, reviewable for

clear error.” Liebsack v. United States, 731 F.3d 850, 854

(9th Cir. 2013) (simplified).

When issues of state law are unclear, it is sometimes

necessary for a federal court to certify a question to a

state's highest court "to obtain authoritative answers.”

Toner for Toner v. Lederle Labs., Div. of Am. Cyanamid

Co., 779 F.2d 1429, 1432 (9th Cir. 1986), amended by, 831

F.2d 180 (9th Cir. 1987). The decision to certify is within

the "sound discretion of the federal court.” Lehman Bros.

v. Schein, 416 U.S. 386, 391 (1974). Yet, as we've

repeatedly held, certification is appropriate where a case

presents "complex” issues of state law with "significant

policy implications.” See, e.g., Centurion Props. III, LLC

v. Chi. Title Ins. Co., 793 F.3d 1087, 1089 (9th Cir. 2015);

McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086, 1091

(9th Cir. 2012); Perez-Farias v. Glob. Horizons, Inc., 668

F.3d 588, 593 (9th Cir. 2011).

PACHECO V. UNITED STATES 7

Washington law authorizes the state supreme court to

accept certified questions from the federal courts. Wash.

Rev. Code § 2.60.020. Washington's certification statute

allows certification where "it is necessary to ascertain the

local law of [Washington] state in order to dispose of [a]

proceeding and the local law has not been clearly

determined.” Id. Thus, we have certified questions where

we've "believe[d] that the Washington Supreme Court . . .

[was] better qualified to answer . . . in the first instance.”

Parents Involved in Cmty. Schs. v. Order Seattle Sch. Dist.,

No. 1, 294 F.3d 1085, 1092 (9th Cir. 2002).

B.

1.

This case presents an issue ripe for certification. The

parties dispute whether, in providing routine contraception,

healthcare providers assume a duty related to the birth of

defective1 children without evidence that any party was or

should have been concerned with the birth of such children.

In Washington, whether this duty exists is a question of

law. McKown v. Simon Prop. Grp., Inc., 344 P.3d 661, 664

(Wash. 2015) ("The existence of a legal duty is a question

of law for the court.”).

The Washington Supreme Court in Harbeson v. ParkeDavis, Inc., 656 P.2d 483 (Wash. 1983), established the tort

of wrongful birth in Washington. A wrongful birth action

is brought by parents against a healthcare provider whose

1 Washington courts use the term "defective” to describe children

with congenital defects. Harbeson v. Parke-Davis, Inc., 656 P.2d 483,

488 (Wash. 1983).

8 PACHECO V. UNITED STATES

negligent action while treating a mother caused the birth of

a defective child. Harbeson, 656 P.2d at 488. The

negligence can be either (1) a failure to give parents

material information necessary for them to informedly

decide whether to conceive or give birth to a child or

(2) negligent "performance of a procedure to prevent the

birth of a defective child.” Id. In short, the parent's claim

is that the practitioner's negligence "is a proximate cause of

the birth of a defective child.” Id.

As a negligence action, to prevail in a wrongful birth

claim, the parents must prove duty, breach, injury, and

proximate causation. See id. at 489. In Washington,

parents have a right to prevent the birth of a defective child,

and healthcare providers have a duty "correlative” to that

right to use reasonable care when medical procedures are

performed. Id. at 488–94. Medical providers breach this

duty "by failure to conform to the appropriate standard of

skill, care, or learning.” Id. at 492. The birth of a defective

child is an "actionable injury.” Id. Proximate causation is

shown by establishing that breach of the provider's duty

was the cause in fact of the injury and that legal liability

should attach. Id. at 493. Cause in fact is established by

showing that the injury would not have occurred but for the

breach of duty. Id. Under Washington law, in wrongful

birth cases, the establishment of cause in fact also

establishes that liability should attach. Id. When the

elements are met, the parents may recover "medical,

hospital, and medication expenses attributable to the child's

birth and to its defective condition,” and they may also

recover damages for emotional injury. Id.

For wrongful birth actions, it appears important that the

child indeed be "defective.” Washington courts have long

held that parents may not recover child-rearing costs from

PACHECO V. UNITED STATES 9

practitioners whose negligent performance of a

contraceptive procedure resulted in the birth of a healthy

child. See McKernan v. Aasheim, 687 P.2d 850, 854–56

(Wash. 1984). In these cases, however, "damages for the

expense, pain and suffering, and loss of consortium

associated with the failed [contraceptive procedure],

pregnancy and childbirth” may still be recovered. Id. at

856.

A wrongful life claim is the "child's equivalent of the

parents' wrongful birth action.” Harbeson, 656 P.2d at

494. Like wrongful birth, the Washington Supreme Court

first recognized the tort of wrongful life in Harbeson.

There, the court defined the action as a claim in which the

child alleges his birth and the pain and suffering

accompanying his condition would not have occurred but

for the clinician's failure to adequately inform his parents

of a risk or perform "a procedure intended to prevent the

birth of a defective child,” such as "sterilization or

abortion.” Id.

As above, to prevail in a wrongful life action, the

plaintiff must prove duty, breach, injury, and proximate

causation. Id. at 495. The medical practitioner has duties

to an unborn child "corresponding” to those owed to the

child's parents to inform the parents of any material risks

that the child will be born with defects and to conform to

the appropriate standard of care should action be taken to

prevent the birth or conception of the child. Id. at 496. The

practitioner's "duty [is] breached by failure to observe the

appropriate standard of care.” Id. Injury resulting from

this breach is measured in terms of extraordinary expenses

to be incurred over the life of the child. Id. Proximate

cause, lastly, is whether "[b]ut for the physician's

negligence, the parents would have avoided conception, or

10 PACHECO V. UNITED STATES

aborted the pregnancy, and the child would not have

existed.” Id. at 497.

Thus, as we've observed so far, both the wrongful birth

and wrongful life causes of action are based on (1) the right

of parents to prevent the conception and birth of defective

children, (2) the existence of healthcare practitioners' duty

to inform parents of the risks of having defective children

and to perform with due care procedures to prevent the

birth of defective children, and (3) that a healthcare

practitioner's negligence in failing to adequately inform the

parents of the relevant risks or to exercise due care in the

performance of any sterilization or abortion procedure was

a but-for cause of the child's birth.

Here, in line with the third factor, the district court

found that S.L.P. would not have been born but for the

United States' negligence. Yet unlike the rule announced

in Harbeson, the negligently performed procedure here was

not "intended to prevent the birth of a defective child,”

Harbeson, 656 P.2d at 494, but as the complaint says, to

generally "prevent the birth of an unwanted child.”

According to the United States, this is important because it

means that this case lies outside the duty imposed on

healthcare providers to assume responsibility when they

encumber parents' rights by failing to adequately complete

procedures geared towards preventing the births of

defective children.2

2 Though the United States contests liability for extraordinary

damages under Washington's wrongful birth and wrongful life causes

of action, it concedes that under "longstanding principles of tort law,”

Plaintiffs-Appellees should recover expenses associated with

pregnancy and childbirth.

PACHECO V. UNITED STATES 11

Indeed, in discussing wrongful life, the Harbeson court

noted that the element of duty in that cause of action is

"limited, like any other duty, by the element of

foreseeability.” Harbeson, 656 P.2d at 495. For instance,

the mother in Harbeson was taking epilepsy medication

and specifically inquired of three doctors regarding any

risks for her becoming pregnant in the future. Id. at 463.

No doctor conducted literature searches or reviewed other

sources for pertinent information regarding the nexus

between the medication and birth defects, and the mother

subsequently gave birth to two children with congenital

defects. Id. The facts are much different here. Perhaps

absent any specific objective to prevent the birth of a

defective child, the Washington Supreme Court would find

that responsibility for S.L.P.'s birth lies outside the

Harbeson duties.

On the other hand, the Washington Supreme Court

might decide, as the district court did here, that breach of

the general duty to non-negligently administer

contraceptives under state law is enough to establish

liability for extraordinary damages in birth defect cases. If

so, the Washington Supreme Court might note, as the

district court did, the fact that about three percent of

children born in the United States are born with a birth

defect of some kind. The Washington Supreme Court

could construe this incidence as making the occurrence of

birth defects foreseeable enough to fall within the bounds

of the Harbeson duties.

The need for clarification in this area of the law is

illustrated by the fact that no Washington court discussing

wrongful birth or wrongful life has ever explicitly approved

of finding liability where neither the parents nor the

healthcare providers had or should have had a specific

12 PACHECO V. UNITED STATES

concern about the birth of a defective child. This case

contrasts with Wuth ex rel. Kessler v. Lab. Corp. of Am.,

where a child born with birth defects was found entitled to

seek wrongful life damages where medical defendants who

tested for genetic abnormalities failed to detect them. 359

P.3d 841 (Wash. Ct. App. 2015). It also contrasts with

Harbeson itself, which concerned the failure of doctors to

warn a mother of possible congenital defects that could

result from her ingestion of a drug that they had prescribed.

Harbeson, 656 P.2d at 496.

At least two Washington cases have fact patterns

somewhat like this case. They, however, fail to elucidate

this area of the law. Quimby v. Fine, 724 P.2d 403 (Wash.

Ct. App. 1986) and Shupe v. Ketting, 1999 Wash. App.

LEXIS 921 (Ct. App. May 25, 1999) (unpublished), mostly

analyze statute of limitations issues and their holdings do

not address foreseeability in the context of duty. In

Quimby, the plaintiffs sued a healthcare provider for

wrongful birth after Mrs. Quimby gave birth to a child with

ultimately fatal birth defects. 724 P.2d at 404. The

defective child was conceived following a failed tubal

ligation procedure performed by the defendant. Id. The

Quimby court found for the plaintiffs on the statute of

limitations issue but did not say whether any party had or

should have had any particular concern about Mrs. Quimby

bearing children with birth defects. See id. at 405.

In Shupe, a mother sued doctors after two unplanned

births occurred following two botched contraceptive

procedures. 1999 Wash. App. LEXIS 921, at *1–2. The

mother sued only after one of her children developed a rare

genetic neurological disorder years after birth. Id. at *7.

Shupe is distinct from this case because the alleged defect

was not manifest at the time of birth. Even so, dicta in

PACHECO V. UNITED STATES 13

Shupe further befogs the issue as to Washington's

recognition of extraordinary damages in cases such as the

one at bar. Apparently objecting to the defendants' lack of

awareness of an increased risk of defects resulting from the

plaintiff's pregnancy, the court opined that Washington law

had not "recognized a cause of action based upon such a

condition, which the doctors in question had no reason to

foresee.” Id. at *23.

In sum, Washington wrongful birth and wrongful life

caselaw is unclear on the allowability of extraordinary costs

associated with the birth of a child with birth defects when

defendants negligently administered birth control

medications and plaintiff(s) did not seek birth control to

prevent the birth of a child with birth defects.

2.

Washington caselaw outside the wrongful birth and

wrongful life contexts is similarly inconclusive. Wrongful

birth and wrongful life actions are species of medical

malpractice claims. Harbeson, 656 P.2d at 486. Such

"claims are fundamentally negligence claims, rooted in the

common law tradition.” Putman v. Wenatchee Valley Med.

Ctr., P.S., 216 P.3d 374, 378 (Wash. 2009). Washington's

legislature has "not extinguished the common law action

and replaced it with a statutory remedy.” Id. So, the

ordinary concepts that apply to negligence claims in

Washington should also apply here.

As the United States notes, Washington tort law has

long defined defendants' duties in terms of the risks that

make conduct unreasonably dangerous. In Rikstad v.

Holmberg, 456 P.2d 355, 358 (Wash. 1969), the state

supreme court restated its precedents that there is no

liability where harm is unforeseeable and that for

14 PACHECO V. UNITED STATES

foreseeability, when measured in terms of duty or

proximate cause, the "question is whether the actual harm

fell within a general field of danger which should have

been anticipated.” Id. at 358 (simplified). This field of

danger, however, is not unlimited, but restricted to

"unreasonably dangerous conduct” made dangerous

because it "threatens particular kinds of harm to particular

kinds of persons in particular ways.” Id. (simplified). To

be foreseeable "the duty imposed by the risk [must]

embrace[] that conduct which resulted in injury to the

plaintiff.” Id.

It is unclear, however, whether the actual harm of

S.L.P.'s birth with defects falls within the scope of the

harms associated with the United States' failure to

adequately administer contraceptives to Pacheco. For its

part, the United States argues that the type of harm

encompassed by "providing treatment to avoid childbirth is

the harm associated with the unwanted pregnancy and

birth, not the expenses associated with a particular medical

condition” a child might have at birth.

In support of its position, the United States cites

Christen v. Lee, 780 P.2d 1307 (Wash. 1989). In Christen,

the Washington Supreme Court affirmed summary

judgment when the plaintiffs sued to hold defendant

drinking establishments liable for injuries the plaintiffs

sustained as the result of criminal assaults perpetrated by

patrons of the establishments. Id. at 1317.

There, the court assayed the "general type of harm”

embraced by the specific duty owed by those who sell

liquor, and concluded that drunk driving was a relevant

harm, but violent crime was not. Id. at 1315. Though the

court recognized that the defendant owed a "duty not to

furnish intoxicating liquor to a person who is obviously

PACHECO V. UNITED STATES 15

intoxicated,” it determined that a breach of that duty did not

make the defendant liable for damages for violent assault.

Id. A seller of liquor may owe a duty to protect the public

against the risk of criminal assault by a patron, "but only if

the drinking establishment which furnished the intoxicating

liquor had some notice of the possibility of harm from prior

actions of the person causing the injury.” Id. at 1312.

Christen, the United States contends, is analogous to

the situation here. In this case, the healthcare practitioner

had an undisputed general duty to administer

contraceptives with due care. But absent any specific intent

to avoid the birth of a child with congenital defects, the

United States claims it cannot be said that the healthcare

provider had a specific duty associated with the unlikely

occurrence of S.L.P.'s condition.

On the other hand, Christen, may be inapt in wrongful

birth and wrongful life cases. In Christen, the court held

that the defendant establishments had no duty absent "some

notice of the possibility of harm from prior actions of the

person causing the injury.” Id. Washington law has never

required that congenital defects occur in prior births so that

defendants can be "on notice” before their negligent acts.

Instead, even under the United States' reading of Harbeson,

the contraceptive procedure need only be "designed to

avoid the conception or birth of a child suffering from a

birth defect.”

The United States also relies on Maltman v. Sauer, 530

P.2d 254 (Wash. 1975). In Maltman, a driver was seriously

injured in an automobile accident and a helicopter

dispatched to assist the driver crashed while en route to the

scene of the accident, killing its occupants. Id. at 256. The

estates of the decedent helicopter crew sued under the

"rescue doctrine.” Id. Though the court observed the

16 PACHECO V. UNITED STATES

existence of "some duty” on behalf of the defendant

because his actions invited rescue, it held that the "accident

suffered by the helicopter crew was too remote from the

actual realm of peril created by the defendant's original

negligence to come within that duty.” Id. at 258. Thus, the

court concluded, it was "inconceivable that the defendant

owed a duty to the plaintiff to assure against a helicopter

crash.” Id. at 259.

Like Christen, the United States argues that Maltman

supports the idea that though Washington healthcare

providers are "subject to a duty [it] does nothing to render

them liable for hazards tied to a duty to which they were

not subject and with respect to which their conduct was not

negligent.” Plaintiffs-Appellees, by contrast, contend that

Maltman is irrelevant to the present analysis.

Indeed, Maltman may not apply here because the harm

that befell Plaintiffs-Appellees—S.L.P.'s birth with

defects—is seemingly insufficiently remote from the

defendant's negligence as to make the existence of a duty

to assure against it "inconceivable.” Instead, as PlaintiffsAppellees note, "even the United States concedes” that it

breached some duty.

In Washington, the "existence of a legal duty is a

question of law and depends on mixed considerations of

logic, common sense, justice, policy, and precedent.”

Christensen v. Royal Sch. Dist. No. 160, 124 P.3d 283, 285

(Wash. 2005) (simplified). Given the policy-laden nature

of this inquiry, we believe it "lies properly within the

purview of the Washington Supreme Court.” See

Centurion Props., 793 F.3d at 1091.

PACHECO V. UNITED STATES 17

III.

We do not intend the phrasing of our question to restrict

the Washington Supreme Court's consideration of the

issue. We recognize that the Washington Supreme Court

may, in its discretion, reformulate the question. Broad v.

Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th

Cir. 1999).

The Clerk of the Court is directed to transmit to the

Washington Supreme Court, under official seal of the Ninth

Circuit, this order and request for certification along with

copies of all relevant briefs and excerpts of record pursuant

to Wash. Rev. Code §§ 2.60.020 and 2.60.030.

If the Washington Supreme Court accepts the certified

question, we designate Defendant-Appellant United States

as the party to file the first brief pursuant to Wash. R. App.

P. 16.16(e)(1).

Further proceedings in this Court are stayed pending the

Washington Supreme Court's decision whether it will

accept review and, if so, receipt of the answer to the

certified question. The case is withdrawn from submission

until further order from this Court. The Clerk is directed to

administratively close this docket pending further order.

The panel will resume control and jurisdiction upon receipt

of an answer to the certified question or upon the

Washington Supreme Court's decision to not accept the

certified question

When the Washington Supreme Court decides whether

to accept the certified question, the parties will promptly

file a joint status report informing this Court of the

decision. If the Washington Supreme Court accepts the

certified question, the parties will file another joint status

report informing this Court when the Washington Supreme

Court issues an answer to the certified question promptly

upon the issuance of that determination.