On February 1, 2012, Pfizer, Inc. announced that it is recalling 14 lots (roughly one million packets) of birth control medication, Lo-Ovral-28, Norgestrel, and Ethinyl Estradiol. The company says the ratio of active to inactive pills in these packets is incorrect due to labeling errors, a fact which will render the pills useless.
Obviously it is not unusual for a woman to miss a pill now and then; and often it is ok as long as she takes the pill as soon as the error is noted. In the case of the Pfizer fiasco, however, there is no way to know which pills in the pack were faulty. Pfizer has released the lot numbers of the affected medication on their website, a step which will help customers to figure out if they in fact have been taking the ineffective drug.
In addition, the corporation is urging women who have used the product to begin using a non-hormonal form of contraception immediately. The FDA is also recommending that all women potentially affected by the mishap should call their doctors immediately.
Regardless, the damage is done, and the big question remains: Is Pfizer Inc. vulnerable to hefty damage claims because of this mishap? Despite what some pundits have said on the news, the answer is maybe. Any such lawsuit would have to be brought in a jurisdiction that permits these types of causes of action. While it is possible that class action lawsuits might be filed in other states, Pennsylvania law is explicit when it comes to wrongful birth and wrongful life cases.
Pennsylvania law does not recognize damages in a wrongful life action. A wrongful life action amounts to a child plaintiff suing a doctor or other medical provider for failing to prevent the child’s birth. It is a complex matter which many agree relies heavily on the question of “life versus non-existence.” And as attorney Sean Wajert wrote, the question of whether a child should have been born is an issue “more properly to be left to philosophers and theologians.” In fact, ten states–including Pennsylvania–have banned civil actions for wrongful life.
Nor does Pennsylvania recognize damages in a wrongful birth action. In this type of action, it is the parents who are suing, rather than the child. The issue here is if they had known that the child would be born with a birth defect, for instance, the parents may have aborted the pregnancy. Not having sufficient information of the health of the baby in vitro deprives the parents of the choice of having or not having the child.
The applicable Pennsylvania statutes that apply are 42 Pa. C.S. Sections 8305 and 8306.
Damages in these cases, in state that do allow them, are measured by the lifetime cost to care for the child.
In short, most states, Pennsylvania included, disfavor wrongful birth and wrongful life causes of action. And while it is entirely possible that Pfizer will face litigation for its errors, even if a woman gets pregnant these will be difficult cases to win against the pharmaceutical company.