Wis. Couple Can't Collect in Birth Control Mix-Up

A clinic that mistakenly gave vitamins instead of birth-control pills to a Wisconsin woman doesn't have to pay to raise the child she conceived but can be sued for other financial damages, a state appeals court ruled Wednesday.

Shelby Nell and the boy's father, Austin Omernick, appealed to the 2nd District Court of Appeals after a lower court concluded public policy considerations such as preventing fraud and making sure awards are fair to defendants protected the clinic from liability in their case.

Citing a 1990 Wisconsin case, the appeals court said a parent must have undergone an unsuccessful sterilization before he or she can make claims for costs relating to raising a child from an unwanted pregnancy. Claims of temporary contraception failing or getting wrong pills can be rife with fraud as parents try to collect huge awards, the court said.

The appeals court said the West Bend couple could recover damages for pain and suffering during and after her pregnancy, loss of future earning capacity and postpartum depression. It sent the case back to the trial court in Washington County to give the couple a chance to prove these injury claims were related to the clinic's negligence.

The couple's attorney, Kevin Keane, said he plans to pursue those claims but still was disappointed with the ruling.

"I thought she (the mother) had a strong case," Keane said. "They violate their policies and they give someone the wrong medication and they're injured ... I'm just surprised the court of appeals says there's no liability."

In the lawsuit, filed in 2010, Nell said she received prenatal vitamins instead of birth-control pills when she went to have her prescription filled in February 2009. She said a clinic doctor confirmed the pills were actually vitamins more than a month after she received them, but by then she already was pregnant. She delivered a healthy boy that December, her second son.

The previous case involved a woman who underwent sterilization but still became pregnant. That court sided with the woman, finding that her intentions were clear that she didn't want a child.

Damage and cost claims related to unwanted pregnancies that don't involve sterilization leave the door open to fraud, the appellate court said. It found the size of potential awards could tempt parents to falsely claim they meant to permanently prevent pregnancy.

The court said in a footnote neither the West Bend couple nor the clinic brought forward any ruling that held a parent can recover the costs of raising a healthy child born after a medical provider negligently failed to provide prescribed birth control pills. However, the court cited case law based on rulings in Indiana and New Hampshire in the 1980s that states damages for wrongful conception or wrongful pregnancy are usually limited to cases involving negligent sterilization.

Still, the court said Nell's personal injury claims might survive because they're similar to medical malpractice claims. She would have to prove, though, that the clinic's negligence was a substantial factor in those injuries.

The clinic's attorney, Barrett Corneille, didn't immediately return a telephone message.