When a child is born to a mother who paid for and believed she had undergone a sterilization procedure, can she recover damages by bringing a medical negligence suit against the doctor, or does the birth of a healthy baby leave the mother without an avenue for any recovery?
The Texas Supreme Court is working to answer that question after hearing oral arguments Tuesday morning in a lawsuit Grissel Velasco brought against Dr. Michiel R. Noe for both his failure to perform the bilateral tubal ligation she requested and his failure to let her know 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 this case is a regular negligence case.
“That’s my position,” he said. “Duty, breach, causation, damages.”
But Diana L. Faust of Cooper & Scully, who represent Noe, advanced an argument that Texas should join courts in Wyoming and Nevada and adopt the “overriding benefit rule.”
“The court should hold an unplanned pregnancy, caused by alleged negligence, resulting in the birth of a healthy child yields no tort remedy,” she said during oral arguments. Issuing such a ruling would mean the Texas Supreme Court “would not assume child birth is a wrong” or “an injurious consequence for which courts should provide … a legal remedy.”
Justice Debra Lehrmann asked how that argument would hold up in the case of parents who already have four kids and decided for financial reasons not to have more children.
“How would that not controvert this argument that a child is a gift from God?” Justice Lehrmann asked. “A parent who said ‘Yes, certainly, a child is a gift from God, but we’re not ready to accept that gift right now’?”
Faust said a decision by the courts to “disallow a legal remedy” in such cases doesn’t interfere at all with a couple’s decision to have or not have children.
“What it does is enforce current Texas law … that in negligence claims one must suffer compensable damages,” she said. “So, the court would have to conclude that this benefit, this joy, this blessing that is to be presumed from the birth of a healthy child, is not a legal harm for which damages are recoverable.”
But all of the intermediate appellate courts in Texas that have considered the issue have “gone the other way, in recognizing a cause of action,” Justice Rebeca Aizpuru Huddle said in response, and so have courts in 42 other states in the country.
The case came to the Texas Supreme Court in June 2022, after a panel of justices from 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 Javier Alvarez of El Paso’s County Court-at-Law No. 3.
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 Velasco 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.
“… [T]he mental anguish for which a plaintiff may obtain recompense is not the result of the child coming into their life; rather, it is the result of physical pain and psychological stressors sustained by parents, most especially the birthing parent, who actively sought through medical sterilization to avoid incurring the financial, physical, and emotional toll of pregnancy and childbirth despite the joy that welcoming a child brings,” the court held.
“Pregnancy and childbirth can be beautiful, enriching and enjoyable endeavors for some. For others, even when a child is hoped for, pregnancy and birth can be extremely painful, arduous, and difficult. We expect this may certainly be the case when the pregnancy is not wanted and parents take affirmative steps to avoid it, however they may ultimately feel if and when the child joins them.”
Justice Evan Young asked Faust a hypothetical question about the availability of damages if a doctor had taken the $400 fee for the bilateral tubal ligation, as happened in this case, but instead of performing the procedure and after the patient had undergone anesthesia, the doctor went to play golf instead.
“Is your argument that it’s just a great gift from the Lord and so there’s no damages and that as a policy matter we should just say the doctor has done her a favor?” Justice Young asked.
Faust said if the court adopts the overriding benefits rule, the answer would be yes.
“But if the court doesn’t go that way, it can exclude certain damages,” she said.
That gave way to numerous questions about what types of damages would be recoverable under Faust’s theory of the case — prenatal and delivery expenses and in some cases lost earnings if the mother is on bed rest — and what types would not be recoverable — Texas courts have consistently held the cost of raising the child is not recoverable.
Justice Jimmy Blacklock raised an issue with Faust and later with Lopez that was not abstract or hypothetical: Both parties and the Eighth Court of Appeals had failed to anonymize the name of Velasco’s fourth child in court filings as the rules require.
“I’d ask you both to think about that and think about the consequences for this child, her name being accessible when people go back and look at the history of this litigation,” Justice Blacklock said. “I’m concerned about her name being accessible, and I hope you’ll both see what you can do about that.”
Lopez spent much of his argument time answering questions about where the line should be drawn on recoverable mental anguish and suffering damages. Justice Jeff Boyd asked how the court should distinguish between the mental anguish Velasco suffered during the pregnancy and the foreseeable mental anguish to come from raising the child.
Lopez admitted it’s a difficult question, and said it’s one that should be left to a jury of Velasco’s peers.
“All of those things are calculable,” he said. “And juries have done that forever, regarding mental anguish damages.”
But what if the court decides that any benefits must be offset against the costs, Justice Blacklock asked.
“How would a court go about valuing the benefit in a case like that?” Justice Blacklock asked. “What is your theory of the value of the child’s life? How would you put on that case?”
The only way, Lopez said, is through the testimony of Velasco before a jury.
“You have to look at it in the context of this family,” he said. “It’s not that she didn’t want this child. She didn’t want to be able to procreate at all, and Dr. Noe took that right away from her. Took away her voice and her choice to do that.”
Noe is also represented by Michelle E. Robberson of Cooper & Scully.
The case number is 22-0410.