According to court documents filed in relation to the lawsuit, on January 26, 2012, then 20-year-old Doherty visited a community health center to find out about birth control options. An employee at the center recommended Doherty be implanted with either the Implanon or Nexplanon birth control (Doherty's medical records disagree over which was supposedly implanted), made by Merck. About a month later, one of the two birth control implants was seemingly inserted into Doherty's arm.
Implanon and Nexplanon are virtually identical, other than that Nexplanon is designed to show up on an x-ray. Both are inserted under the skin of a woman's arm and contain etonogestrel, which is used to inhibit ovulation. They are both also designed to last for three years, unless they are removed by a physician.
Doherty, however, alleges that Merck "knew or should have known that, due to the design of the rod's applicator, both products have a history of failed insertion attempts—the failure remaining unknown to the physician." The physician, in other words, could believe he or she had implanted the birth control device successfully and not realize the rod was stuck in the applicator, not in the patient's arm.
Without the birth control device properly inserted, the patient could think she was protected against unplanned pregnancy, only to become pregnant.
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Doherty alleges that her doctor was negligent in failing to explain the risks, failing to examine the arm after insertion, and failing to train Doherty in how to check to ensure the implant was inserted properly. In her lawsuit, Doherty claims she suffered damages as a result of having a baby, including lost wages, medical expenses, and emotional distress as a result of having a child as a single mother. She seeks $250,000 in damages.
Merck filed a motion to dismiss the lawsuit, but a judge denied that motion, pending answers to questions regarding Maine's Wrongful Birth statute.
The lawsuit is case number 1:15-cv-129, in US District Court, District of Maine.