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The plaintiff in a Texas medical malpractice case alleged that defendant Dr. Noe failed to perform a bilateral tubal ligation at the time of her third Cesarean delivery on July 16, 2014, which she alleged resulted in the unplanned pregnancy and birth of her healthy fourth child, Andrea. The plaintiff asserted a health care liability claim that the defendant was negligent for (a) accepting payment for the tubal ligation and failing to perform the procedure; (b) leading the plaintiff to believe Dr. Noe performed the procedure; and (c) taking no action to inform her she had not been surgically sterilized.

The plaintiff alleged additional claims of fraud, medical battery, violation of the DTPA, promissory estoppel, breach of express warranty, and intentional infliction of emotional distress. The plaintiff sought damages for (a) medical expenses for the cost of a tubal ligation and (b) compensation for the invasion into her body for that procedure; (c) the risk of an unspecified additional medical procedure and recuperation; (d) the reasonable probability that she will incur future medical and/or counseling expenses for the rest of her life; (e) past and future physical pain and suffering and mental anguish; and (f) the financial obligations to maintain, support, and educate her fourth child.

The Court of Appeals Eighth District of Texas El Paso, Texas (“Texas Appellate Court”) stated in its April 8, 2022 opinion: “We find Appellant produced some evidence of duty and breach through the uncontroverted medical expert report she produced as summary judgment evidence. We further find Appellant offered some evidence supporting her request for mental anguish damages, which we find are appropriate and recoverable under the facts of this case, and under Texas law. Accordingly, we find the trial court erred in granting Appellees’ motion for summary judgment on Appellant’s medical negligence claim and reverse and remand to the trial court for trial … ” (The uncontroverted medical expert report stated, in part, that the combination of (1) Appellant being charged for the BTL the day prior to her scheduled Cesarean section; (2) notes in her medical record when asked about her contraceptive plans, she indicated she signed consents for a BTL prior to her scheduled Cesarean section; (3) the request for the surgical report regarding whether a BTL was performed; and (4) the surgical report not mentioning any BTL procedure or other procedure other than the Cesarean section indicate Dr. Noe was on notice that Appellant believed she had received a BTL at the time of her Cesarean section, she had not actually been surgically sterilized, she was unaware she was not sterilized, and she did not have other plans in place for a contraceptive.)

“Based on Dr. Johnson’s expert report, we find the record contains some evidence Dr. Noe owed Appellant a duty of care to inform her she had not received the BTL she paid for, which the Sun City medical records indicate Appellees knew or should have known Appellant requested but did not receive. We likewise find, based on Dr. Johnson’s report, Appellant produced 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. We find this evidence to be more than a mere scintilla for purposes of overcoming a no-evidence motion for summary judgment as to duty and breach, and likewise creates an issue of material fact under the traditional summary judgment standard. See TEX.R.CIV.P. 166a(c), (i).”

With regard to the claim for damages, the Texas Appellate Court stated, “the expenses of raising a healthy child born after a negligent sterilization procedure are not recoverable … As such, Appellant’s request for damages for the care, education, maintenance, and support of her healthy fourth child are not recoverable. We also conclude the parents of a healthy child born after an unsuccessful sterilization procedure may recover damages for the actual medical expenses incurred as a result of the procedure … if we assume all elements of a negligently-performed procedure were met, the damages recoverable for actual medical expenses incurred in this case would be the $400 Appellant paid for the BTL.”

The Texas Appellate Court further stated: “the 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. 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 … Denying recovery of mental anguish damages particularly 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.”

“Here, Appellant produced some evidence of mental anguish damages directly related to her fourth pregnancy which followed the third Cesarean procedure where she believed she obtained a BTL … We find this testimony to be more than a scintilla of evidence tending to show Appellant suffered mental anguish damages as a result of Appellees’ failure to perform the BTL and/or their failure to inform her the BTL was not performed.”

Lastly, the Texas Appellate Court held: “Because Appellant’s alternative claims are all health care liability claims as the term is defined under Chapter 74, we find the trial court did not err in granting Appellees’ motions for summary judgment on her claims for violations of the DTPA, fraud, breach of express warranty, and intentional infliction of emotional distress.”

“We conclude Appellant’s claims are all health care liability claims and affirm the trial court’s judgments dismissing Appellant’s claims for fraud, violations of the DTPA, breach of express warranty, and intentional infliction of emotional distress. However, we find Appellant produced some evidence of the existence of duty and breach of duty, as well as damages for mental anguish, which we hold are recoverable by Appellant upon a showing of medical negligence by Appellees.”

Source Velasco v. Noe, M.D., No. 08-19-00287-CV.

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