An El Paso woman who got pregnant a year after believing her doctor tied her tubes cannot recover medical negligence damages for the unexpected pregnancy, the Texas Supreme Court ruled Friday.
In the court’s opinion, Justice Rebeca Huddle wrote Texas law doesn’t allow for 41-year-old Grissel Velasco to be compensated for the financial cost or pain and mental anguish of giving birth to and raising a healthy daughter. And because there were no valid expenses associated with the pregnancy or postpartum period on record, Velasco can’t recover those economic damages either.
“To award money damages for experiences inherent to a healthy birth wrongly suggests the mother’s rightful position is one where the child had never been born—i.e., that carrying a healthy baby to term is an injury,” Huddle wrote.
Velasco was receiving prenatal care at Sun City Women’s Health Care owned by Dr. Michiel Noe in 2014. She said she paid ahead of time to get her tubes tied at the same time she delivered her son, believing that having more C-section births would be risky.
Around October 2015, Velasco was surprised to learn she was four or five months pregnant. She didn’t want an abortion, she said, but she sued Noe and his clinic for not tying her tubes and not telling her the procedure hadn’t been done.
Noe’s lawyers alleged Velasco’s medical records didn’t indicate she wanted her tubes tied, therefore he didn’t perform the procedure. Plus, the doctor testified she didn’t wait the full 30-day consent period required by law before the surgery could take place. Attorney Diana Faust told the court Velasco had no other medical expenses on record aside from the $400 Velasco said she was told by Sun City employees to pay for the tubal ligation. The money was refunded around November 2015.
Faust did not immediately respond to KERA News' request for comment, but told justices during oral arguments last year raising the child was not an injury for which damages are eligible.
“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,” Faust said in November.
Velasco said she signed everything she was instructed to in order to get her tubes tied and feels she was lied to. She speaks little English, and Noe doesn't speak Spanish, she said.
"It's 10 years," she told KERA News during an interview in Spanish. "Ten years of fighting this. I don't want to say that I want the lawsuit to be won in my favor, because that's not the case anymore. But I do think that the doctor needed to have some kind of sanctions."
Velasco's lawyer Joe Lopez said the court improperly treated Velasco's case as that of a failed procedure when in reality the procedure she paid for hadn't been done. Lopez said a jury should have been allowed to come to a conclusion about the mental anguish and pain the unexpected pregnancy caused his client and the compensation she deserved.
"I understand that most children are a benefit, I understand that," he said. "But not all children are a benefit. And I say that meaning that if that were the case, there wouldn't be tens of millions of people practicing birth control."
Huddle wrote the court had not up to this point “squarely addressed” a medical negligence claim like Velasco’s. Dallas attorney Linda Turley, who is not involved with Velasco’s lawsuit, told KERA News last year the case’s novelty was likely why the court took it up.
Oral arguments for Velasco's case happened the same day the court examined Texas' narrow medical exception for abortion in State of Texas v. Zurawski. In that case, reproductive rights lawyers argued patients and medical professionals want clarity in the state's abortion laws to avoid facing harsh penalties for facilitating necessary abortions.
That case is pending in the high court.
“We have a very strict anti-abortion law, and a woman basically has no right to terminate her pregnancy, so that in situations like Ms. Velasco found herself in, we’re far more likely to see that pregnancy go to term — even though it is unwanted — when it results from medical negligence in providing care,” Turley said.
As for Velasco's daughter, now 8, Velasco said she's aware of the lawsuit and the circumstances surrounding her birth. But she's not all that interested at her age.
"All my children are treated equally," Velasco said. "They are all mine. Everyone is treated the same. So, she doesn't feel some kind of lack of love on my part."
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