Cynthia v. Wenrich

• Citation: 261 P.3d 1089,150 N.M. 457,2011 -NMSC- 036
• Decision Date: 17 August 2011
• Docket Number: No. 32,344.,32,344.
• Parties: Cynthia and Perfecto PROVENCIO, Plaintiffs–Respondents,v.Steven WENRICH, D.O., Defendant–Petitioner.
• Court: New Mexico Supreme Court

150 N.M. 457

261 P.3d 1089

2011 -NMSC- 036

Cynthia and Perfecto PROVENCIO, Plaintiffs–Respondents,

v.Steven WENRICH, D.O., Defendant–Petitioner.

No. 32,344.

Supreme Court of New Mexico.

Aug. 17, 2011.

Sandenaw Law Firm, P.C., Thomas A. Sandenaw, Jr., Caralyn Banks, Las Cruces, NM, for Petitioner.Law Offices of James P. Lyle, P.C., James P. Lyle, Albuquerque, NM, for Respondents.

OPINION

BOSSON, Justice.

{1} Since we issued Lovelace Medical Center v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991), more than 20 years ago, this Court has not had an opportunity to clarify whether a doctor who negligently performs a tubal ligation procedure, but who then informs the patient of her continued fertility, may be sued for the future costs of raising a subsequently conceived child to the age of majority. We hold that those particular damages are only available when a doctor has breached a duty to inform. Our Court of Appeals held otherwise, concluding that notice of continued fertility, or lack thereof, was merely a factor for the jury to consider as questions of causation and comparative fault. Accordingly, we reverse the Court of Appeals and affirm the district court's dismissal of this action.

BACKGROUND

{2} On December 12, 2002, Defendant Dr. Steven Wenrich delivered Plaintiff Cynthia Provencio's fourth child via caesarean section. Prior to surgery, Mrs. Provencio consented to Defendant contemporaneously performing a tubal ligation procedure on her sole fallopian tube because she did not wish to have additional children. After completing the surgeries, Defendant sent a portion of what he believed was ligated fallopian tube to a laboratory for analysis. The resulting pathology report revealed that the tissue Defendant had ligated was ligament, not fallopian tube, and Plaintiff still could conceive children.

{3} Mrs. Provencio's first follow-up appointment with Defendant occurred on either December 18 or 19, 2002, several days after Mrs. Provencio was discharged from the hospital. At this appointment, Defendant told Mrs. Provencio that the tubal ligation surgery was unsuccessful; that he had failed to “get it.” At the same appointment, Defendant informed Mrs. Provencio that only a hysterosalpingogram (HSG) test would conclusively reveal the extent of her continued fertility. Defendant provided Mrs. Provencio with a laboratory form for an HSG test.

{4} For reasons that are not clear from the record, Mrs. Provencio never returned to Defendant's care after this initial appointment. Mrs. Provencio did, however, complete an HSG test in November 2003, some eleven months after her last appointment with Dr. Wenrich. The results of this test confirmed that Mrs. Provencio's fallopian tube remained open. Approximately five months after receiving the HSG test results, Mrs. Provencio conceived her fifth child with her husband, Plaintiff Perfecto Provencio. Mrs. Provencio eventually gave birth to a normal, healthy child.

{5} On December 12, 2005, Mr. and Mrs. Provencio filed suit against Defendant for wrongful conception and battery. As to the wrongful conception claim, the only damages for which Plaintiffs sought recovery were the costs associated with raising Mrs. Provencio's fifth child to the age of majority and punitive damages. Plaintiffs did not seek other damages for the costs of a second tubal ligation surgery or any other harm associated with the failed sterilization.

{6} The case proceeded to trial where, at the close of Plaintiffs' case in chief, Defendant moved the district court for judgment as a matter of law on each of Plaintiffs' claims. See Rule 1–050(A) NMRA. In granting Defendant's motion on the tort of wrongful conception, and particularly Plaintiffs' claim for the costs of raising Mrs. Provencio's fifth child, the district court ruled that “the physician's failure to timely inform the patient of the failed sterilization is an essential element” in wrongful conception. The district court observed that because “Plaintiffs were well aware of the failed sterilization,” and “were fully advised the sterilization had failed by the time the parties' child was conceived,” they could not as a matter of law establish an essential element of their wrongful conception claim. Because of this, Mr. and Mrs. Provencio could not recover the costs of raising their child. In the alternative, the district court ruled that by providing Plaintiffs with information about the failed procedure, Defendant had broken the causal chain as a matter of law.

{7} After making these rulings, the district court asked Plaintiffs if they wanted to proceed on a claim for different, albeit smaller, damages based on the negligently performed sterilization procedure alone, such as the costs of a second surgery, or emotional suffering, but without recovering child-raising expenses as set forth in Mendez. Plaintiffs declined, and the district court entered judgment in favor of Defendant.

{8} The Court of Appeals reversed, holding that Mendez did not establish a distinct tort of wrongful conception and that failure to inform was not a prerequisite to recovery for the costs of child-raising. Provencio v. Wenrich, 2010–NMCA–047, ¶ 9, 148 N.M. 799, 242 P.3d 366. The Court of Appeals concluded that a claim for wrongful conception is nothing more than a standard claim for medical negligence, albeit one that allows for special damages. Id. ¶¶ 9–10. The Court of Appeals explained its reasoning:

Because a “wrongful conception” action is nothing more than a normal medical malpractice action with a unique type of damages, Plaintiffs, as in any medical malpractice action, “ha[ve] the burden of proving that: 1)[D]efendant owed [them] a duty recognized by law, 2)[D]efendant failed to conform to the recognized standard of medical practice in the community, and, 3) the actions complained of were the proximate cause of [P]laintiff[s'] injuries.” Schmidt v. St. Joseph's Hosp., 105 N.M. 681, 683, 736 P.2d 135, 137 (Ct.App.1987). Plaintiffs do not, however, have to prove that Defendant failed to disclose that the sterilization procedure was unsuccessful, and the fact that Defendant here undisputedly informed Plaintiffs that the sterilization was unsuccessful does not automatically bar Plaintiffs' case from going to the jury.

Provencio, 2010–NMCA–047, ¶ 10, 148 N.M. 799, 242 P.3d 366.

{9} The Court of Appeals also rejected the district court's causation analysis, and correctly so. Id. ¶¶ 13–16. Because the independent intervening-cause doctrine does not apply to a plaintiff's own negligence, Defendant could not have interrupted the causal chain as a matter of law by disclosing to Mrs. Provencio that she was still fertile. Id. ¶ 13. Relying on general principles of New Mexico negligence law, the Court of Appeals reasoned that “the effect of the doctor's disclosure” goes to the issues of causation and comparative fault, both within the province of the jury. Id. ¶ 11. Because “reasonable minds could differ on the question of whether and to what extent [Defendant's] actions and the actions of Plaintiffs caused the pregnancy,” the Court of Appeals determined that the case should have gone to the jury to determine liability and, if needed, apportion fault between the parties. Id. ¶ 12.

{10} We granted Defendant's petition for a writ of certiorari to clarify the scope and meaning of our Mendez opinion. Provencio v. Wenrich, 2010–NMCERT–006, 148 N.M. 584, 241 P.3d 182.

DISCUSSION

{11} As our resolution of this appeal depends on the applicability of Mendez, our seminal opinion in this area, we begin by reviewing that case. The facts in Mendez are straightforward. Mrs. Mendez underwent an unsuccessful tubal ligation procedure in which the doctor negligently ligated only one of her two open fallopian tubes. Mendez, 111 N.M. at 337–38, 805 P.2d at 604–05. Compounding his negligence, the doctor never informed Mrs. Mendez that the surgery had failed. Id. Unaware of her continued fertility, Mrs. Mendez took no birth control measures and “within months of the surgery” conceived a healthy child. Id. at 338, 348, 805 P.2d at 605, 615. Among other claims, the Mendez plaintiffs sued for the cost of raising the unexpected child to the age of majority, a substantial sum. Id. at 348, 805 P.2d at 615. In resolving Mendez, this Court analyzed the nature of the plaintiffs' various injuries and the damages that must be available, as a matter of sound policy, to compensate them for the full extent of those injuries. Id. at 341–54, 805 P.2d at 608–21.

{12} In a seminal opinion, we held that New Mexico would join a minority of jurisdictions which recognize damages resulting from the birth of an unplanned, yet healthy child. Id. at 345, 349–50, 805 P.2d at 612, 616–17. We specifically held that damages could include the costs of raising an unexpected child to the age of majority. Id. In so doing, we joined what was, and to this day remains, a small number of jurisdictions which permit full recovery for child-rearing costs with no offset to the doctor for any benefits that the child might provide the parents over the course of their lives. Id. at 350–53, 805 P.2d at 617–20; see also Chaffee v. Seslar, 786 N.E.2d 705, 707 (Ind.2003) (observing that New Mexico, California, Oregon, and Wisconsin are the only states that permit full recovery for child-rearing costs without a potential offset to the doctor).

{13} In the current case, Plaintiffs urge us to adopt the Court of Appeals opinion and hold that “in an ordinary medical malpractice claim stemming from a negligently performed sterilization procedure, the cost of raising a child may be recovered when a doctor's negligence causes the birth of an unwanted child,” regardless of whether that doctor informs the patient about the failed procedure. Provencio, 2010–NMCA–047, ¶ 9, 148 N.M. 799, 242 P.3d 366. In other words, damages—the cost of raising an unexpected child—would flow solely from the negligently performed tubal ligation, even if the...