Velasco v. Noe

645 S.W.3d 850

Grissel A. VELASCO, Appellant,

v.Michiel R. NOE, M.D., Individually and d/b/a Sun City Women's Health Care, Appellees.

No. 08-19-00287-CV

Court of Appeals of Texas, El Paso.

April 8, 2022

Joe P. Lopez IV, Dallas, for Appellant.

John McChristian, Fort Worth, Diana L. Faust, Michelle E. Robberson, Dallas, for Appellee.

Before Rodriguez, C.J., Palafox, and Ferguson, JJ.

OPINION

YVONNE T. RODRIGUEZ, Chief Justice

Appellant, Grissel Velasco, appeals five orders granting traditional and no-evidence motions for summary judgment the trial court entered in favor of Appellees, Michiel R. Noe, M.D., and Sun City Women's Health Care (Sun City), in a suit asserting that her pregnancy resulted from medical negligence. The petition also asserts alternative claims, including violations of the Deceptive Trade Practices Act (DTPA) and fraud, and seeks recovery for a variety of damages. Velasco first argues the trial court improvidently granted summary judgment on the medical negligence claim because (1) Appellees accepted her payment for a tubal ligation and never notified her Dr. Noe did not perform the procedure; and (2) it is unjust to restrict recovery for a failed sterilization procedure that resulted in the birth of a healthy child to the cost of the procedure. She next argues the remaining claims are not health care liability claims artfully pled to avoid the Texas Medical Liability Act's requirements.¹

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. Accordingly, we reverse the trial court's order granting Appellees’ motion for summary judgment on Appellant's medical negligence claim and remand it to the trial court for further actions consistent with our decision.

BACKGROUND

Appellant's second amended petition alleges Dr. Noe failed to perform a bilateral tubal ligation at the time of her third Cesarean delivery, on July 16, 2014, which she maintains resulted in the unplanned pregnancy and birth of her healthy fourth child, Andrea. She asserts a health care liability claim that Appellees were negligent for (a) accepting payment for the tubal ligation and failing to perform the procedure; (b) leading Appellant to believe Dr. Noe performed the procedure; and (c) taking no action to inform her she had not been surgically sterilized. Based upon the same core facts, Appellant alleges additional claims of fraud, medical battery, violation of the DTPA, promissory estoppel, breach of express warranty, and intentional infliction of emotional distress. She seeks 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.

Summary Judgment Proceedings

Appellees filed seven traditional and no-evidence motions for summary judgment that collectively challenged all of Appellant's claims. They argued the trial court should grant summary judgment on the medical negligence claim because (1) Texas law does not recognize Appellant's cause of action, including Appellant's claims for damages; and (2) even if the claim is cognizable, damages are limited to the cost of the tubal ligation for which Appellant has already been reimbursed.² Appellees argued that the remaining claims alleged in the second amended petition were impermissibly-recast health care liability claims. Appellant responded to five of the motions but did not respond to the motions for summary judgment towards the promissory estoppel and medical battery claims.³

After a hearing, the trial court granted Appellees’ motions for summary judgment.

Appellant's Patient-Physician Relationship with Appellees

Dr. Noe and the Sun City staff provided obstetric services to Appellant from April 2014 until the birth of her third child on July 16, 2014, and for an additional postpartum visit two weeks later.⁴ All parties agree Dr. Noe did not perform a tubal ligation on Appellant at the time he delivered her third child.

Appellant did not meet or speak to Dr. Noe until she was admitted into the hospital for her scheduled C-section. She did not tell Dr. Noe she wanted him to perform a tubal ligation, and Dr. Noe did not personally inform her that he would perform the procedure during her Cesarean. Indeed, Dr. Noe did not communicate anything about a tubal ligation to Appellant, nor did he advise she undergo the procedure. Appellant testified an unidentified Sun City employee told her Dr. Noe recommended she undergo a tubal ligation because she was scheduled for a third Cesarean birth, and a fourth C-section could be dangerous. Appellant averred she did not tell Dr. Noe or anyone on his staff she did not want to have a tubal ligation. Dr. Noe testified he does not perform tubal ligations by default; a patient must request the procedure.⁵

While she was a Sun City patient, Appellant received federally-funded health insurance through the CHIP program, which pays for up to twenty prenatal and two postnatal obstetrician visits, prescription drug coverage, laboratory testing, and hospital charges relating to the delivery. CHIP does not cover the cost of surgical sterilization, and Appellant knew she had to pay Sun City $400 before Dr. Noe would perform a tubal ligation.

Appellant testified that the day before her scheduled Cesarean, a Sun City employee named "Jackie" or "Jennifer" gave her permission over the phone to come to the practice and pay for the tubal ligation with her mother's credit card. When Appellant arrived, the same employee asked Appellant if she intended "to make the $400 payment so we can do the ... tubal ligation?" A Sun City receipt issued on July 15, 2014, for a $400 Master Card payment from Martha Enriquez does not indicate the reason for the charge.

According to her deposition testimony, when Appellant arrived at the hospital the next day for her delivery, she "told the staff that [she] was going to have [her] tubes tied," and any notation hospital staff made in the medical records to the contrary was incorrect. Dr. Noe did not counsel Appellant about having a tubal ligation following her Cesarean surgery, and the record does not contain an informed consent signed by Appellant granting Dr. Noe permission to perform the procedure. Dr. Noe also did not tell Appellant during the C-section that he was not going to perform a tubal ligation.

Sun City's surgical scheduling form indicated Appellant would report to the hospital at 6:30 a.m. on July 16, 2014 for her C-section. Underneath "BTL Yes/No," the form bears a handwritten notation of "Chip can't afford," and "Yes/No" are not circled. The maternity card Sun City issued to Appellant has "No" circled in response to "For BTL," with "CHIP" handwritten across the word "No".

Sun City requires women expressing a desire for a tubal ligation to sign a "Requirements for Sterilization" form. The form advises a tubal ligation is a surgery requiring the patient to be cut and carries a risk of death. The form also delineates a risk of failure with the procedure and explains that even if a portion of the tube is removed, a patient could have an unplanned and undesired pregnancy in the future. The record does not contain a Requirements for Sterilization form signed by Appellant.

Sun City's records of Appellant's only postnatal visit, on August 4, 2014, indicate, "The patient is requesting the following contraception method(s): tubal ligation." The record later indicates: "Note for ‘Post-partum visit’: Pt delivered 7/16/2014, pspemc, dr noe, csection, boy, breast, Pt had Tubal."⁶ Notes for the visit conclude, "Pt states that she had signed consent for BTL. OP report requested.... Pt instructed to abstain from sexual activity." Appellant averred Sun City staff never informed her there was any question concerning whether Dr. Noe performed a tubal ligation during her Cesarean.

During this postpartum visit, a Sun City staff member instructed Appellant not to have sexual intercourse. Sun City staff also requested Appellant return for another appointment, although Appellant did not return to the clinic.⁷

Appellant Becomes Pregnant and Appellees Refund $400

After Appellant's third child turned one year-old, Appellant discovered she was pregnant with her fourth child, Andrea. She went to Sun City in person, and the staff acknowledged Dr. Noe did not perform a tubal ligation. In November of 2015, Sun City issued Appellant a $400 check, which was the amount she paid for the tubal ligation.⁸

The physician that delivered Andrea in April 2016 recommended Appellant undergo a tubal ligation and would have charged Appellant $400 to perform the procedure at the time he performed her fourth Cesarean. Appellant, however, did not request a tubal ligation following Andrea's delivery.⁹ Appellant became pregnant one or two months after she delivered her fourth child, but the child did not survive to term. She did not discuss undergoing a tubal ligation with the obstetrician who treated her during her most recent pregnancy. Appellant had not undergone a tubal ligation at the time she provided a deposition in the underlying suit.

Appellant's four live births resulted in healthy and normal children. Appellant loves and cherishes Andrea and is glad she had her fourth child. Andrea is an important part of Appellant's life, and App...