Noe v. Velasco

690 S.W.3d 1

Michiel R. NOE, M.D., Individually and d/b/a Sun City Women’s Health Care, Petitioner,

v.Grissel A. VELASCO, Respondent

No. 22-0410

Supreme Court of Texas.

Argued November 28, 2023

OPINION DELIVERED: May 10, 2024

On Petition for Review from the Court of Appeals for the Eighth District of Texas

Michelle E. Robberson, Diana L. Faust, Dallas, Chris Marie Borunda, El Paso, John W. McChristian Jr., Fort Worth, for Petitioner.

Jose Padilla Lopez, for Respondent.

Justice Huddle delivered the opinion of the Court.

A mother sued 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. She claims the doctor’s actions caused an unplanned pregnancy and the birth of her healthy fourth child, a daughter now eight years old. We must decide whether the mother has pleaded a cause of action recognized under Texas tort law and, if so, whether she has adduced evidence of damages sufficient to defeat a no-evidence motion for summary judgment.

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. Thus, while the mother’s allegations state a claim for medical negligence under Texas law, the types of damages recoverable in a case like this one are far narrower than those available in the usual negligence case. Noneconomic damages, such as mental anguish and physical pain and suffering, together with the economic costs of raising the healthy child, are not recoverable as a matter of law. Rather, when a parent alleges that medical negligence caused the birth of a healthy child, recoverable damages are limited to the economic damages proximately caused by the negligence and incurred during the pregnancy, delivery, and postpartum period, such as medical expenses, if any.

Because the mother in this case adduced no evidence of such compensable damages in response to a no-evidence motion for summary judgment, we reverse the court of appeals’ judgment in part and reinstate the trial court’s judgment.

I. Background

A Factual history

Dr. Michiel Noe operates a medical practice in El Paso as Sun City Women’s Health Care. In April 2014, Dr. Noe and his staff began providing prenatal care to Grissel Velasco, who was pregnant with her third child. While a patient, Velasco received federally funded health insurance through the Children’s Health Insurance Program (CHIP), which covers certain prenatal, delivery, and postnatal care. CHIP does not cover the cost of surgical sterilization procedures.

Velasco was scheduled to undergo surgical delivery of her third child by cesarean section in July 2014. She alleges that she had arranged for Dr. Noe to perform a bilateral tubal ligation (BTL), a common sterilization procedure, during the surgery. Where Dr. Noe’s surgery scheduling form asks "BTL Yes/No," it contains a handwritten notation of "Chip Can’t Afford" with nothing circled on the "Yes/No" options. The maternity card that Dr. Noe’s office issued to Velasco contains a section where "No" is circled for whether the patient will receive a BTL, and the word "CHIP" is written across it.

The day before the cesarean section, Velasco visited Dr. Noe’s office and paid $400. She testified by deposition that an employee gave her permission over the phone to come to the office and pay for the BTL with her mother’s credit card. A receipt shows a $400 payment from Velasco but does not state the reason for the charge. The next day, Dr. Noe successfully delivered Velasco’s third child, but a BTL was not performed.

Velasco returned for one postnatal visit the following month. Dr. Noe’s office records from the visit state: "The patient is requesting the following contraception method(s): tubal ligation," and "Note for ‘Post-partum visit’: Pt delivered 7/16/2014, spemc, dr noe, csection, boy, breast, Pt had Tubal." But the records conclude with notes that "Pt states that she had signed consent for BTL. Op report requested" and that "Pt instructed to abstain from sexual activity." The parties dispute whether Dr. Noe’s staff raised any concern at this visit about whether he had performed a BTL. But Velasco testified that Sun City staff asked her at the visit to return for a follow-up appointment and that Velasco did not.

Velasco became pregnant with her fourth child about a year later. She returned to Dr. Noe’s office to inquire about how she could be pregnant and whether Dr. Noe would pay for the expenses of this unplanned pregnancy. The office reimbursed the $400 Velasco had paid for the BTL. Velasco ultimately gave birth to a healthy child.

B. Procedural history

Velasco sued Dr. Noe.¹ Her live petition asserts claims for medical negligence, fraud, medical battery, deceptive trade practices, promissory estoppel, breach of express warranty, and intentional infliction of emotional distress. As to damages, she seeks to recover for medical and related expenses; physical pain and suffering; mental anguish; and the costs of maintaining, supporting, and educating her fourth child.

Through multiple combined traditional and no-evidence motions, Dr, Noe sought summary judgment as to all claims. Velasco filed a combined response regarding five claims,² with evidence. The trial court granted summary judgment for Dr. Noe as to all seven claims, and Velasco timely appealed.

A divided court of appeals reversed in part and remanded to the trial court for further proceedings. 645 S.W.3d 850, 870 (Tex. App.—El Paso 2022). The majority affirmed the grant of summary judgment as to most of Velasco’s claims, reasoning that they were impermissibly recast health care liability claims. Id. at 866-69. But the majority reversed the grant of summary judgment as to the medical-negligence claim, holding that Velasco had produced some evidence of duty, breach, and damages. Id. at 859–66. Justice Palafox dissented without opinion. Dr. Noe petitioned this Court for review, and we granted the petition.

II. Relevant law

[1] In Texas, the relationship between a medical patient and her physician or other medical provider is governed by a multifaceted system of civil, criminal, and administrative laws and remedies. See Lucas v. United States, 757 S.W.2d 687, 690 (Tex. 1988) ("Texas courts have long recognized that victims of medical negligence have a well-defined common law cause of action to sue for injuries negligently inflicted upon them."); Tex. Occ. Code §§ 151.001–168.202 (regulating the conduct of physicians), 151.003(2) (stating that the Texas Medical Board "should remain the primary means of licensing, regulating, and disciplining physicians"), 165.151–.160 (creating criminal penalties for certain conduct by physicians). Common-law suits in tort offer one nonexclusive way to regulate and remedy medical misconduct. See Pediatrics Cool Care v. Thompson, 649 S.W.3d 152, 165, (Tex. 2022) (Busby, J., concurring) ("Our legal system provides civil, criminal, and administrative remedies for such misconduct that are not exclusive of each other and work together to promote better medical care and prevent future harm to patients.").

[2, 3] Tort law deals with civil wrongs, aside from a breach of contract, for which the law provides a remedy, most typically damages. See, e.g., W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 1 (5th ed. 1984); 86 C.J.S. Tarts § 1 (2017). The "guiding principle of Texas tort law" is that damages are meant to compensate "for the injury done." J & D Towing, LLC v. Am. Alt. Ins. Corp., 478 S.W.3d 649, 676 (Tex. 2016) (quoting Craddock v. Goodwin, 54 Tex. 578, 588 (1881)). Yet not every consequence of another’s tortious conduct is an injury or qualifies as "a compensable element of damages in every case." City of Tyler v. Likes, 962 S.W.2d 489, 494–95 (Tex. 1997); see id. at 494 (noting that Texas law does not allow recovery for mental anguish that results from every tortious act).

[4] Typically, a tort claim for medical negligence is available to a patient when a medical provider’s treatment falls below a specified standard of care and that breach proximately causes an injury to the patient. Windrum v: Kareh, 581 S.W.3d 761, 768 (Tex. 2019). But when a medical provider’s tortious conduct results in the birth of a child, courts have wrestled with the many difficult legal and philosophical questions that follow: 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? 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?

This Court has not squarely addressed the validity of a claim for medical negligence³ that results in an unplanned pregnancy and birth of a healthy child.⁴ But we have considered cases in related contexts. In a case where a doctor’s failure to diag- nose a pregnant mother with rubella resulted in her baby’s being bom with impairments, we held that the parents could not recover damages for their alleged mental anguish. Jacobs v. Theimer, 519 S.W.2d 846, 850 (Tex. 1975). We explained that mental-anguish damages were not recoverable as a matter of law because such an award would be "based upon speculation as to the quality of life and as to the pluses and minuses of parental mind and emotion." Id. at 849. And we noted that recovery of damages for the expenses incurred in raising the child was barred for the Same reasons. Id. But we held that other damages were available: the parents could recover "expenses reasonably necessary for the care and treatment of their child’s physical impairment." Id. at 850. We reasoned that such damages were "within the methods of proof by which the courts are...