Pharmaceutical giant Pfizer recently announced it's recalling one million packets of birth control medication because it mixed up the order of the hormone-containing pills with placebos during packaging, putting an unknown number of women at risk for unintended pregnancies. While news of this error spread quickly, the question of Pfizer's liability in this incident and how it delayed to notify the public has received scant attention.
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If women end up pregnant because of this production debacle, what is Pfizer's legal responsibility? The cost of terminating the pregnancy or carrying the child to term? Physical and mental health issues related to the pregnancy? Rearing the child? Adverse outcomes during childbirth? Or are corporations such as Pfizer shielded by the law from facing substantive damages?
In interviews with legal experts in reproductive rights and product liability, and an examination of related case law, we have found that the answer to this question is largely determined by the state in which a potential defendant resides.
About three-quarters of the states in this country recognize "wrongful pregnancy," also known as "wrongful conception," in which damages can be recovered for use of faulty contraception or a failed sterilization. But recoverable damages in such cases vary from state to state.
The most common allowable damages in wrongful pregnancy cases cover the expense of the pregnancy and childbirth, which can also include related costs such as mental or physical injury and loss of wages. A much smaller fraction of the states that recognize wrongful pregnancy permit for damages that include the cost of rearing the child, but this is offset by what the courts deem as the value of having a healthy child. (sigue)
Wolfe also pointed out that of all criminal and civil penalties paid by drug companies in this country over the last 20 years, Pfizer ranks toward the top, and about half to two-thirds of these penalties have been in just the last five years.
"There's a huge rash of illegal activity, repeated illegal activity, to try and keep their piece of the market or keep their margin as high as it is," he said. "And you can't say that that's not one of the pieces of thinking here."
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