Crawford v. Kirk

• Decision Date: 08 October 1996
• Docket Number: No. 06-95-00107-CV,06-95-00107-CV
• Citation: 929 S.W.2d 633
• Parties: Tammy CRAWFORD, Appellant, v. John KIRK, M.D., Appellee.
• Court: Texas Court of Appeals

Page 633

929 S.W.2d 633

Tammy CRAWFORD, Appellant, v. John KIRK, M.D., Appellee.

No. 06-95-00107-CV.

Court of Appeals of Texas,

Texarkana.

Submitted July 9, 1996.

Decided Sept. 11, 1996.

Rehearing Overruled Sept. 11, 1996.

Second Motion forRehearing Overruled Oct. 8, 1996.

Stephen Smith, Longview, for Appellant.

William M. Blair, III, G. R. Akin, Akin, Bush, Neeley & Mason, Longview, for Appellee.

Before CORNELIUS, C.J., and GRANT and T.C. CHADICK (Retired, Sitting by Assignment), JJ.

OPINION

T.C. CHADICK, Justice (Assigned).

Both appellee Kirk and appellant Crawford have filed a motion for rehearing. Dr. Kirk continues to assert and argue that a tort cause of action does not exist in favor of Crawford for recovery of damages in the form of actual medical expense incurred as a result of an alleged failed sterilization procedure. Crawford, however, complains that the original opinion herein, dated August 12, 1996, holds that medical expenses are the only element of damages recoverable under Texas law when a normal, healthy child is born of a pregnancy that is proximately caused by a physician's negligence in the performance of a sterilization procedure. Both motions are overruled, but the opinion of August 12, 1996, will be withdrawn and an opinion entered clarifying the decision of this Court.

Tammy Crawford appeals a summary judgment entered in favor of Dr. John Kirk in this medical malpractice suit. The trial court ruled that no cause of action exists under Texas law for recovery of damages under any action pled and granted Kirk summary judgment. The judgment is reversed, and the case is remanded for trial.

Tammy Crawford married Scott Crawford in 1984. Tammy's four-year-old son from a previous marriage lived with the Crawfords. In 1985, Tammy Crawford gave birth to a daughter. Thereafter, the couple desired to have a son of their own, but were reluctant to undertake the responsibility of another child due to the family's financial circumstances: Tammy Crawford was not employed and her husband earned just under eight dollars an hour as a welder. After much consideration, the couple decided in favor of one more child. Early in 1988, Tammy Crawford became pregnant again. Appellee Kirk was her doctor for the pregnancy. Because the Crawfords had decided that their financial circumstances would allow them to have no more children even if the baby was a girl, they requested that Kirk perform a sterilization operation known as a tubal ligation on Tammy Crawford immediately after delivering the baby.

On September 6, 1988, Tammy Crawford gave birth to a girl. Immediately after delivery, Kirk performed the tubal ligation. After completing the procedure, Kirk informed Crawford that she was sterile. Subsequently, Crawford asked Kirk if she and her husband needed to use contraception when they resumed sexual activity. Kirk told her that because she was sterile, there was no need for contraception.

In January 1989, Crawford discovered that she was pregnant. In February 1989, under the care of a different doctor, Crawford had a sonogram performed, and was informed that she might be carrying twins or even triplets. A second sonogram in April 1989 ruled out the possibility of triplets, but confirmed that the couple could expect twins.

In March 1989, Crawford began experiencing vaginal bleeding. This problem worsened as her pregnancy progressed, and eventually required lengthy hospitalization. Crawford was hospitalized May 8 through 15, June 23 to 25, and July 10 through August 14. While hospitalized, Crawford was unable to care for her other children. After March 1989, even when she was not hospitalized, she was required to stay in bed almost constantly. On August 14, Crawford gave birth to twin girls.

Crawford filed this suit on November 15, 1990, alleging that Kirk negligently performed the sterilization procedure, and that this negligence was a proximate cause of the pregnancy and its associated complications. During the pendency of the suit, Crawford suffered a prolapsed uterus, allegedly caused by her pregnancy with the twins, and underwent a hysterectomy. Crawford seeks damages for all medical expenses associated with the pregnancy, physical and mental pain and suffering, and the costs of raising the twins to the age of majority. The trial court granted Kirk's motion for summary judgment, holding that there is no cause of action in Texas to recover monetary damages for wrongful pregnancy.

Crawford contends that the trial court erred in holding that Texas does not recognize a cause of action for wrongful pregnancy. ¹ The Texas Supreme Court has not directly addressed this issue, but it has issued opinions and rulings on a number of closely-related questions that provide significant guidance to a correct determination of this case.

In Hays v. Hall, 488 S.W.2d 412 (Tex.1972), the plaintiff brought suit after his wife twice became pregnant despite his having undergone a vasectomy. Prior to the vasectomy, the couple had two children born with deformities, one of whom died. The first child born after the vasectomy was also deformed and lived only nine months. The second child born after the vasectomy was normal and healthy. The suit sought the following damages: medical expenses associated with both pregnancies; medical and funeral expenses of the deceased child; physical and mental pain and suffering, as well as loss of consortium; and the expenses of raising the healthy child to the age of majority.

The court of civil appeals affirmed the trial court's dismissal of the case on the ground that the plaintiffs failed to bring the suit within the required statutory period. Hays v. Hall, 477 S.W.2d 402, 406 (Tex.Civ.App.--Eastland 1972), rev'd, 488 S.W.2d 412 (Tex.1972). The intermediate court also held that plaintiffs could not recover for the future support and maintenance costs of their child because normal parents experience significant satisfaction, joy, and affection in raising a healthy child. Hays, 477 S.W.2d at 406.

The Supreme Court reversed in an opinion that addressed only the statute of limitations point. The court held that in cases alleging negligent performance of a vasectomy, the statutory period for filing suit does not begin until the patient learns that the procedure was ineffective. Hays, 488 S.W.2d at 414. The court thus remanded the case for trial on the merits without directly addressing the viability of the underlying cause of action.

In Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975), the parents of a child born with deformities brought suit against a doctor for failing to diagnose as rubella an illness that occurred during the wife's pregnancy. The Supreme Court reversed a summary judgment for the doctor and allowed the case to proceed to trial. Jacobs, 519 S.W.2d at 850. Citing Hays, however, the court held that recovery would be limited to the expenses reasonably necessary for the care and treatment of the child's physical impairment, even though the parents also sought damages for their own emotional suffering. Id. Any award of damages beyond the economic burden related solely to the physical defects of the child, the court ruled, and would necessarily be based upon speculation about the quality of life and parental mind and emotion, and was therefore barred. Jacobs, 519 S.W.2d at 849; see also Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984) (allowing action for wrongful birth of impaired child which sought damages for care and treatment of impairment).

Hays, Jacobs, and Nelson thus hold that the parents of an impaired child born as a result of another's negligence may recover the economic costs of care and treatment of the child's impairment. These cases do not address, however, the viability of a cause of action for damages resulting from negligence causing an undesired pregnancy which culminates in the birth of a healthy child. Various courts of appeals have reached inconsistent answers to this question.

In Terrell v. Garcia, 496 S.W.2d 124, (Tex.Civ.App.--San Antonio 1973, writ ref'd n.r.e), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974), a mother sought damages solely for the financial expenses of raising a normal, healthy son who was born after the mother underwent a tubal ligation. The court reviewed numerous wrongful pregnancy cases from other states, noting that a few jurisdictions allow damages for support and maintenance expenses of a healthy child. Terrell, 496 S.W.2d at 126-27. The court ruled, however, that the satisfaction, joy, and companionship experienced by normal parents in rearing a healthy child outweigh the economic costs of rearing the child, and so denied the requested relief. Terrell, 496 S.W.2d at 128. Other courts of appeals have followed Terrell in denying recovery for the expense of rearing a healthy child born after an allegedly negligent sterilization procedure. Hickman v. Myers, 632 S.W.2d 869 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.); Sutkin v. Beck, 629 S.W.2d 131 (Tex.App.--Dallas 1982, writ ref'd n.r.e.); Silva v. Howe, 608 S.W.2d 840 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.).

Despite its decision in Terrell, the San Antonio Court of Appeals later held that some types of damages may be recoverable in cases in which a healthy child is born after the allegedly negligent performance of a sterilization procedure. Garwood v. Locke, 552 S.W.2d 892 (Tex.Civ.App.--San Antonio 1977, writ ref'd n.r.e.). In Garwood, the plaintiff gave birth to a normal, healthy child after undergoing a tubal ligation. She sought damages for medical expenses associated with the pregnancy, loss of earnings, and physical pain and anguish. The court distinguished its Terrell decision on the ground that the plaintiff in Terrell waived all damages except the cost of raising the child. Garwood, 552 S.W.2d at 894-95. The court held that the pleadings in Garwood clearly put the recovery of medical expenses in issue, and remanded the case...