‘Wrongful conception’ lawsuit weighs joy of unplanned child vs. liability from botched vasectomy

In 2018, Steven Szlachtowski got a vasectomy. Four years later, to the surprise of everyone, his wife, Megan, got pregnant.

The Szlachtowskis claim in a civil lawsuit that Minnesota Urology in Edina committed medical malpractice which led to this unplanned pregnancy via a series of poor internal training policies, including employing a triage nurse with limited training who told Steven his post-vasectomy semen sample was negative when it was, in fact, positive.

The “wrongful conception” lawsuit was filed in Hennepin County in 2023 and is scheduled to go to trial next week. The Szlachtowskis allege Minnesota Urology should be on the hook for a slew of damages including physical pain related to the childbirth, emotional distress, lost economic opportunities and the cost of raising the child.

The case will ask jurors to weigh some of those damages against whatever they determine is the monetary value parents derive from the joy of raising a child throughout their life.

Minnesota Urology does not deny giving the Szlachtowskis incorrect test results, but they are seeking to limit their exposure in terms of damages.

Richard Thomas, the lawyer representing Minnesota Urology, said he’s seen these wrongful conception cases before, but he has never seen one go to trial because of the unique impact he says it could have on a family.

“I’m a little surprised, but they have every right to pursue what they want to pursue,” he said.

Messages left with the Szlachtowskis and their attorney, Julie Matonich, were not returned.

According to the lawsuit and related court documents:

In December 2018, Steven was 38 and Megan was 33. They had three children under the age of 5 and were both professionals advancing in their careers. They did not want any additional children, so Steven decided to have a vasectomy to sterilize himself. The procedure was performed by Dr. Mark Fallen at the Edina offices of Minnesota Urology, which has 18 offices across Minnesota.

Several months after the vasectomy, Steven submitted a semen sample for post-procedure testing. Nurse Jennifer Whelchel told Steven the results from the testing were negative and it was “OK to discontinue contraceptives.”

The test was actually positive.

A motion filed on behalf of the Szlachtowskis argues that Whelchel had received little training. Her two direct supervisors had no nursing background. The two nurses whom Whelchel shadowed when she was hired both denied being primarily responsible for training her.

Triage nurses were responsible for relaying test results to patients. In 2019, Minnesota Urology had “no clinic-wide policy” requiring physicians to review the semen analysis results.

Thomas said no one is sure what led Whelchel to read the results incorrectly. She died in 2022 at the age of 49.

On March 23, 2023, Megan Szlachtowski discovered she was 15 weeks pregnant. One day later, Steven went back to Minnesota Urology to have his semen tested again. It came back positive; this time it was reported correctly. A little over a month later, they sued Minnesota Urology. Their fourth child was born later that year.

The legal argument of “wrongful conception” is not universally accepted in the United States. In Minnesota it was codified in 1977 by the state Supreme Court decision in Sherlock v. Stillwater Clinic in a similar failed sterilization procedure. That case will play a role in the Szlachtowskis lawsuit against Minnesota Urology.

Sherlock v. Stillwater Clinic determined there needs to be a conceptual framework for the monetary value the joy of having children brings that is weighed against damages incurred from “wrongful conception.”

The majority opinion was written by Justice Walter Rogosheske. He pointed to several other “wrongful conception” court decisions across the United States, which largely began appearing in the late 1960s. He wrote that there was a disconnect in having a physician pay “all the economic costs of an unplanned child” while the birth parents “derived all the joy, affection and satisfaction of rearing the child.” That meant that a jury should have to weigh the two elements against each other when determining damages. Rogosheske wrote that it could be decided in a similar fashion to how juries determine compensation for wrongful death lawsuits.

Thomas said he has always agreed with the dissenting opinion written by Chief Justice Robert Sheran that “with a normal, healthy child there are no damages.”

“We leave it to the jury,” Thomas said.

The Szlachtowskis have retained Felix Friedt, an economics professor at Macalester College in St. Paul, who calculated that the cost of raising the child is somewhere between $300,000 and $600,000.

If the jury decides the joy of raising a child is worth less than that, the differences would be part of any potential damages awarded to the Szlachtowskis.

Those aren’t the only damages they can win, though. In a pretrial order for this case, Judge Bridget Sullivan ruled that childrearing expenses and costs are the only things that can be weighed against any “aid, comfort and society” that the child’s birth provides. That means if a jury awards other damages — for instance physical pain, medical damages, loss of economic opportunity or emotional distress — those will not have to be weighed against anything.

The Szlachtowskis were also seeking more than $6 million related to “loss of earning capacity” and filed a motion seeking punitive damages ahead of the trial.

The lawsuit claimed the earning potential of both parents was hampered by the unplanned pregnancy. The Szlachtowskis argued they had both been waiting for their other children to all reach kindergarten age before pursuing additional employment opportunities. Megan indicated she was going to apply for a job in Chicago that could have included a substantial pay raise but could not do so because the family needed to stay in Minnesota to have support raising their newborn. Steven said his pursuit of career advancement and increased salary has also been stalled.

Sullivan ultimately ruled that these claims were “too speculative” and that while the Szlachtowskis could seek to recover lost economic opportunities directly related to the pregnancy and birth, that was different than the question of lost earning power. She also ruled that holding Minnesota Urology liable for punitive damages, which “must be done with malicious, willful, or reckless disregard for the rights of others,” was not applicable to this lawsuit.

Still, many of the Szlachtowskis’ other arguments for damages will be allowed, and the lawsuit could provide a fascinating window into how a jury weighs a case of medical malpractice against the unplanned benefit a new life brings.

“Most states do not recognize this course of legal action,” Thomas said. “Minnesota is a minority, but it does.”