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See what the El Paso Court of Appeals has to say about an OB/GYN surgeon not doing a surgery he charged for, leaving the patient in the dark

Wrongful birth cases have been frowned on by Texas courts, but the court's opinion takes a different approach

The El Paso Court of Appeals recently issued an interesting opinion in a summary judgment case arising from allegations that an OB/GYN physician failed to perform a surgery for which he billed the collected money from the patient. The case is styled Grissel Velasco v. Michiel R. Noe, MD, Individually and d/b/a Sun City Women’s Health Care, No. 08-19-00287-CV, 8th Court of Appeals. You can read the opinion here.

The gist of the allegations is that the OB/GYN, Dr. Noe, didn’t tie the patient’s tubes (bilateral tubal ligation) at the time of her third delivery by cesarean section (C-Section). The evidence showed that the doctor billed and accepted payment for this birth control procedure that’s designed to prevent additional pregnancies. Additionally, the plaintiff alleged that the patient alleged that the OB/GYN and his office staff led her to believe that procedure had, in fact, been performed.

You can no doubt see where this is going. The patient got pregnant again and found out that Dr. Noe hadn’t performed  the tubal ligation after all. The doctor refunded the fee he charged. The patient filed a lawsuit alleging various causes of action, including medical negligence, fraud, and violations of the Texas Deceptive Trade Practices Act (DTPA).

While at first glance, the facts of this case seem to support these causes of action, remember that Texas law has very aggressive tort reform protections for physicians. It’s not possible for patients to get around the tort expert report requirements and damages caps by pleading causes of action other than medical negligence.

Thus, it’s no surprise that the OB/GYN doctor filed a motion for summary judgment. This is a procedural vehicle that allows a court to dismiss the case without being submitted to the jury when there is not a genuine issue of material fact, meaning that the court can make a ruling in the case merely as a matter of law.

The motion for summary judgment argued that the patient’s claims are recognized by Texas law, but even if they were, the patient can only recover the cost of the tubal ligation that was performed, which had already been refunded.

The trial court granted motion for summary judgment in favor of the physician, and the patient appealed. Spoiler alert: The appellate court affirmed judgments dismissal of the claims for fraud, DTPA violations, breach of express warranty, and infliction of emotional distress, but reversed and remanded dismissal of the medical negligence claims.

The appellate court decided that the patient defeated the physician’s summary judgment by producing evidence that the physician accepted payment for a tubal ligation procedure that was never done, allowed the patient to believe that the procedure had been performed, and took no action to inform her that she had not been surgically sterilized.

Dr. Noe and his office staff provided prenatal and obstetric services to the patient for around three months prior to her C-Section delivery and for postpartum visits two weeks later. The evidence showed that the patient didn’t speak to Dr. Noe until after she was admitted to the hospital, never told him that she wanted him to perform a tubal ligation procedure, and that the physician never personally informed her that he would tie her tubes during the C-Section surgery.

According to the patient’s trial testimony, someone in the physician’s office staff told her that Dr. Noe recommended tubal ligation because she was scheduled for a third cesarean delivery and ¼ procedure could be dangerous to her.

The patient also testified that when she arrived at the hospital for delivery, she told the nursing staff that she was going to have her tubes tied. Yet, the medical records don’t contain an informed consent to allow the procedure and other parts of the medical record suggest that tubal ligation wasn’t planned.

Interestingly, though, the office record for the patient’s post-delivery visit noted that, “The patient is requesting the following contraception method(s): tubal ligation.” The chart also noted that the date of delivery and that she “had Tubal.” In the lawsuit, the patient alleged that the doctor’s staff never informed her that there was any question whether the OB/GYN had done the tubal ligation during the C-Section surgery.

In fact, this information wasn’t disclosed until after the patient became pregnant again, after which the physician’s office refunded the $400 fee she had paid for tubal ligation.

The failure to inform the patient of what happened—rather, that the tubal ligation didn’t happen—was the subject of the plaintiff’s expert affidavit from an OB/GYN physician. The expert gave his one opinion that Dr. Noe, the treating OB/GYN deviated from the acceptable standard of care during  the C-Section surgery, office visits, and every day during the 15 months following the surgery by failing to inform the patient that he did not perform the surgical contraceptive procedure that she requested, tubal ligation.

The expert concluded that the standard of care requires an OB/GYN surgeon to make every reasonable effort to inform the patient of being a significant risk–in this case, the consequences of not receiving sterilization surgery–unless additional steps are taken. The expert concluded that, as a result of the physician’s failure to follow the standard of care failure, the patient became pregnant again with a high-risk pregnancy.

Based on this expert testimony, the El Paso Court of Appeals reversed and remanded the trial court’s dismissal of the medical negligence claim in what the parties described as a wrongful pregnancy case. That leads to the question of what damages could be recovered. The court concluded that:

• Expenses of raising a healthy child born after a negligent sterilization procedure are recoverable. This means that the plaintiff’s request for damages for the care, education, maintenance, and support of the child are not recoverable.

• Actual medical expenses incurred as result of the procedure are recoverable.

• Medical expenses related to the unexpected pregnancy or birth of the additional child are not recoverable under the factual circumstances of this case.

• Mental anguish and pain and suffering damages sustained from the pregnancy and birth are recoverable. Similar damages related to raising another child are not recoverable.

If you’ve been seriously injured because of obstetrical, medical, or other healthcare in Texas, then contact a top-rated, experienced Texas medical malpractice lawyer for a free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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