‘Wrongful conception’ lawsuit weighs joy of unplanned child vs. liability from failed 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 and that it led to the unplanned pregnancy after a triage nurse told Steven his post-vasectomy semen sample was negative when it was, in fact, positive.

The “wrongful conception” lawsuit, filed in Hennepin County in 2023, is scheduled to go to trial next week. The Szlachtowskis say Minnesota Urology should be on the hook for a slew of damages related to the birth, including physical pain, 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 throughout their life from the joy of raising a child.

Minnesota Urology does not deny giving the Szlachtowskis incorrect test results, but it is seeking to limit its exposure in terms of damages.

Richard Thomas, the lawyer representing Minnesota Urology, said he’s seen these wrongful conception cases before, but he’s 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 additional children, so Steven decided to have a vasectomy. 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.

Thomas said no one is sure what led Whelchel to read the results incorrectly. She died in 2022 at age 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, the couple 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 case involving 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 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 difference 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, resulting from “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.”