Prior to the birth of her third child by scheduled C-section, plaintiff was told by a member of the physician’s staff that the physician had recommended she have a tubal ligation to prevent a fourth pregnancy, which could be dangerous. The day before she went into the hospital to deliver, she paid for a tubal ligation. When she arrived at the hospital the next day, she told the staff she was going to have the procedure. She did not sign an informed consent for the procedure, and the physician never talked to her about it or inform her that he was not going to perform the procedure. The record of her post-partum visit indicates that the tubal litigation occurred, and no one on the staff informed her that the physician had not actually performed the procedure. Plaintiff subsequently became pregnant and gave birth to a healthy child.

These are the basic facts in Grissel A. Velasco v. Michael R. Noe, M.D., Individually and d/b/a Sun City Women’s Health Care (No. 08-19-00287-CV). Plaintiff sued Noe and Sun City for medical negligence, medical battery, DTPA, fraud, breach of express warranty, and intentional infliction of emotional distress, seeking past and future medical expenses, past and future pain and suffering and mental anguish damages, and compensation for financial obligations incurred in the care and support of the fourth child. The trial court granted the defendants’ motion for summary judgment on all claims.

The court of appeals affirmed in part and reversed in part. It affirmed the trial court’s dismissal of all claims other than the medical negligence claims. The court determined that these claims were all health care liability claims subject to Chapter 74 because they alleged breaches of the standard of care for a health care provider, specifically concerning: (1) pre-surgical communications, consents, and authorizations; (2) medical information defendants conveyed to plaintiff concerning the results of the procedure (or lack thereof); (c) interpretation and accuracy of medical records kept by defendants; and (4) the parties knowledge of the contents of the records. Since plaintiff did not serve an expert report with respect to the other claims, the trial court properly dismissed them.

With respect to the medical negligence claims, however, the plaintiff did produce an expert report by a board-certified OB-GYN. The expert opined that the physician had deviated from the standard of care by failing to inform plaintiff before her C-section that he was not going to perform the procedure and then not disclosing that fact to her thereafter. Instead, the physician should have informed the patient that she was at risk from another pregnancy and to use another form of contraception to avoid unwanted pregnancies. The failure to do so proximately caused the fourth-high risk pregnancy and Cesarean and plaintiff’s damages.

The court of appeals held that the expert report contained “some evidence Appellees failed to conform to the applicable standard of care when they failed to inform Appellant she did not receive a BTL despite possessing medical records showing she thought she received the surgery.” The court found that this evidence was sufficient (more than a mere scintilla) to overcome a no-evidence summary judgment motion on duty and breach and created an issue of material fact under a traditional summary judgment standard.

But the more vexing issue involved damages. Are damages available to parents who received negligent care in sterilization procedures and then had a child? When the only damages sought are the costs to raise the child, the answer is no (citations omitted). When the damages sought are medical expenses incurred after the failed procedure, the answer is maybe (citing a 1977 case from the San Antonio Court of Appeals). In 1995 the Waco Court of Appeals held that plaintiff could recover medical and hospital expenses for the failed procedure, medical and hospital expenses for the birth of the child, the woman’s lost wages because of the pregnancy or the failed procedure, pain and suffering connected to the pregnancy, and the cost of an abortion, if any. By contract, a 1996 Texarkana Court of Appeals decision rejected the Waco court’s reasoning and held that plaintiff could recover only the actual medical expenses resulting from the failed procedure. There is also a prior SCOTX opinion limiting recovery in a wrongful birth case to the expenses to care for a physically-deformed child’s treatment (but not for mental anguish).

The El Paso court held that the plaintiff could not recover costs for care and support of the child but could recover damages for actual medical expenses incurred as a result of the procedure (the amount had already been refunded in this case). As plaintiff had not shown any evidence demonstrating that she incurred any medical complications or expenses resulting from the pregnancy and birth beyond those already paid by CHIP, there was no loss of this type. With respect to mental anguish, however, the court of appeals found that plaintiff had presented some evidence of mental anguish associated with the unwanted pregnancy itself. As the court’s opinion put it, “Denying recovery of mental anguish damages where, as here, there are no out-of-pocket medical expenses would effectively allow physicians performing medical sterilization to be immune from liability for their negligence. Worse, it would leave plaintiffs harmed by overt medical negligence no avenue by which to seek reimbursement for the physical and emotional suffering they endured as a result.” The court thus reversed the trial court on the medical negligence issue and remanded the case for further proceedings.

Although the parties treated the case as a “wrongful pregnancy” case, the court of appeals preferred to characterize it as a “negligent sterilization case.” No matter what they call it, the very specific context in which the court of appeals has recognized the possible recoverability of mental anguish damages probably assures that there won’t be very many of these cases in the future. Still, given the political sensitivity around issues of this kind, we would not be surprised if this case didn’t draw more attention than it might otherwise warrant.

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