If a doctor negligently treats a patient, causing their death, the doctor can be sued for wrongful death. However, what happens if a doctor negligently performs a sterilization procedure on a patient, resulting in an unexpected birth? Can you sue for wrongful life? The Texas Supreme Court wrestled with this issue in 2023.
Noe v. Velasco Background
In the case of Michiel R. Noe, M.D., Individually and d/b/a Sun City Women’s Health Care v. Grissell A. Velasco, the patient, Ms. Velasco, filed a medical malpractice lawsuit against her doctor and his medical practice for allegedly failing to perform a sterilization procedure she paid for and then failing to tell her that the procedure was not performed. The procedure, for which she paid $400.00 in cash, was supposed to be performed at the time she gave birth to a prior child. Due to a paperwork mix-up, it was not performed, and Ms. Velasco was never informed of the oversight.
It’s a Baby
Ms. Velasco left believing she could no longer get pregnant. Imagine her surprise when she did! Ms. Velasco returned to the defendant’s office to ask how this could happen; the oversight was identified, and the doctor returned her $400.00. In the end, she gave birth to a healthy child.
What Was the Harm?
The big question in this case was “What is the harm here? In the end, she gave birth to a healthy child, and she was not injured by the birth itself. However, it was a child she did not seek to have and would not have had but for the negligence of the defendant doctor. The pregnancy process and birthing process are not exactly convenient. Furthermore, as any parent can tell you, children are not cheap to raise, and this child was the plaintiff’s fourth. Among other damages, she pled for the “costs of maintaining, supporting, and educating her fourth child,” as well as mental anguish and suffering.
The Lower Courts’ Decisions
The defense filed Motions for Summary Judgment in the trial court, alleging that no recognizable cause of action existed for the claims brought. The trial Court agreed and granted the motion. However, on appeal, the appellate court reversed the medical negligence claims, finding some evidence of negligence and damages for a jury to evaluate. The defense appealed to the Texas Supreme Court from that decision.
Texas Supreme Court Declares a Child a Blessing
After hearing oral arguments on the issue, the Texas Supreme Court held that while there was a medical negligence claim here, they would not allow damages that amounted to a wrongful life claim such as the costs of raining the child. Further, they declined to recognize any right to recover for pain and suffering or mental anguish since the child is not a harm but a blessing in the eyes of the law. Instead, they held that “a mother may recover the cost of the sterilization procedure, and economic damages designed to compensate for injuries proximately caused by the negligence, such as medical expenses incurred during the pregnancy, delivery, and postnatal period, if proven.” (page 21) In the present case, the plaintiff had already received the cost of the sterilization procedure, and she had not pleaded for other damages that the Supreme Court decided were allowed. Thus, the Court remanded the case with instructions to grant summary judgment.
Key Takeaways
While this decision resulted in the case being reversed and ultimately dismissed, there is a recognized cause of action for medical negligence but not for wrongful life. Thus, you can plead for the cost of sterilization and the medical costs associated with giving birth. However, you cannot recover the cost of raising a child.
Final Thoughts
In the end, I believe Noe v. Velasco is a pretty good decision. I cannot begin to imagine what the emotional cost to the child would be when he learned that he was so unwanted that his mother sued for the cost of raising him. If the child is truly a burden, the mother can always give it up for adoption to another couple that would be happy to raise the child and foot the costs. Thus, recognizing that children are a blessing, not a “damage,” makes sense.
While it seems like a sort of compromise that allows the mom to recover certain expenses so the doctor does not go completely free from his negligence, it will likely not work that way in practice. Medical malpractice lawsuits are expensive and high-risk for the lawyer. To bring the lawsuit, an expert must be hired to review the records and write a negligence report. This alone can run $10,000 or more, and this expense is not recoverable. The total cost to try the case could easily reach $60,000 or more. It is already hard to find a medical malpractice lawyer in Texas. Thus, I cannot imagine that a Texas medical malpractice lawyer would take such a case on a contingency fee basis. The recovery could easily be less than the cost of pursuing the claim.
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