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SCOTX Clarifies What Damages Are Recoverable in ‘Wrongful Pregnancy’ Cases

May 10, 2024 Michelle Casady

A mother who sued her doctor, seeking to recover damages stemming from the birth of her fourth child after the doctor failed to perform a sterilization procedure she paid for, cannot proceed with her lawsuit, the Texas Supreme Court determined Friday in reinstating a win for the doctor.

Justice Rebeca Aizpuru Huddle, writing for a unanimous court, explained in a 21-page ruling that in so-called “wrongful pregnancy” cases only a narrow category of damages is available: those costs incurred during pregnancy, delivery and postpartum. But in this case, Grissel Velasco was seeking to recover a much broader category of damages — including the costs of rearing her daughter, mental anguish, and physical pain and suffering.

Because Velasco presented no evidence she incurred the types of damages that are recoverable, the Texas Supreme Court reinstated a summary judgment win Judge Javier Alvarez of El Paso’s County Court-at-Law No. 3 had granted Dr. Michiel R. Noe.

“Texas law does not regard a healthy child as an injury for which a parent must be compensated but, rather, as a life with inherent dignity and profound, immeasurable value,” Justice Huddle wrote, explaining Texas law bars recovery of noneconomic damages in these types of cases.

“… Texas law does not permit recovery of the expenses of raising the healthy child, or any noneconomic damages, because the birth and life of a healthy child do not constitute an injury under Texas law.”

Velasco sued Noe for both his failure to perform the bilateral tubal ligation she requested and his failure to inform her the procedure had not been done. Velasco became pregnant with her fourth child 15 months after she thought she had been sterilized.

Attorney Joe P. Lopez IV of Dallas, who represents Velasco, told the court in oral arguments in November that the case is a regular negligence case with the regular spectrum of damages available.

But Diana L. Faust of Cooper & Scully, who represents Noe, advanced an argument that Texas should join courts in Wyoming and Nevada and adopt the “overriding benefit rule,” which states that an unplanned pregnancy, caused by alleged negligence, that results in the birth of a healthy child “yields no tort remedy.” 

Faust had encouraged the court to adopt a rule that forbids recovery of any damages in these types of cases.

“We see no reason to foreclose the recovery of the economic damages proximately caused by the medical negligence and incurred during the pregnancy, delivery, and postpartum period,” the Texas Supreme Court wrote in rejecting that proposal. “We emphasize, however, that, in deeming the mother’s prenatal, delivery, and postnatal medical expenses recoverable, the compensable injury is not the life of the child or even the pregnancy or birth. Rather, the injury is the actual economic costs for medical care incurred during the pregnancy and postpartum period. Those medical expenses are a direct and obvious result of the medical negligence, are easily calculable according to the ordinary techniques of tort law, and have no tendency to disparage the child’s existence.”  

The case came to the Texas Supreme Court in June 2022, after a panel of justices form the Eighth Court of Appeals in El paso held in an April 2022 ruling 2-1 that Velasco’s claim for medical negligence had been wrongly dismissed on summary judgment by Judge Alvarez.

The panel held Judge Alvarez had correctly granted summary judgment in favor of Noe, ending Velasco’s claims for fraud, violations of the Deceptive Trade Practices Act, breach of express warranty and intentional infliction of emotional distress.

However, the El Paso court held Velsaco had presented enough evidence of mental anguish that she should be able to recover damages based on that if she proves medical negligence by the doctor was the cause.

Justice Huddle addressed the “many difficult legal and philosophical questions” courts have wrestled with in so-called wrongful pregnancy cases.

“Should the law recognize the emotional and pecuniary costs of pregnancy, delivery, and childrearing as legal injuries to be remedied? If so, what types of damages are recoverable, and should they be offset by the benefits (tangible and intangible) the child’s existence yields?” she wrote. “Is it the province of courts to value the degree of joy or difficulty a child brings her family? Can judges and juries rationally make these valuations?”

Noe is also represented by Michelle E. Robberson of Cooper & Scully.

The case number is 22-0410.

Michelle Casady

Michelle Casady is based in Houston and covers litigation and appeals — including trials, breaking news and industry trends — for The Texas Lawbook.

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