Hays v. Hall, 4459

• Decision Date: 18 February 1972
• Docket Number: No. 4459,4459
• Citation: 477 S.W.2d 402
• Parties: Charles HAYS et ux., Appellants, v. Dr. R. W. HALL, Appellee.
• Court: Texas Court of Appeals

Page 402

477 S.W.2d 402

Charles HAYS et ux., Appellants, v. Dr. R. W. HALL, Appellee.

No. 4459.

Court of Civil Appeals of Texas,

Eastland.

Feb. 18, 1972.

Rehearing Denied March 10, 1972.

DeVore, Bagby, McGahey, Ross & Burnett, Arlington, for appellants.

Bailey, Williams, Webber & Allums, Dallas, Hill, Paddock & McMaster, Ft. Worth, for appellee.

COLLINGS, Justice.

This suit was brought by Charles Hays and wife Willie Mae Hays against Dr. R. W. Hall a practicing doctor of Osteopathy. Plaintiffs alleged that the defendant had performed a surgical procedure known as a vasectomy upon the person of Charles Hays for the purpose of rendering him sterile; that Dr. Hall was guilty of negligence, breach of implied warranty and misrepresentation resulting in damage to plaintiffs. Plaintiffs further alleged that prior to the vasectomy here in question plaintiffs had given birth to two deformed children; that following the purported vasectomy and testing for sterility by defendant, his wife became pregnant and gave birth to a third child which was afflicted with deformities similar to those of the first two, and died as a result of such deformities at the age of nine months; that following the discovery of Mrs. Hays' pregnancy with the third child, the defendant tested the plaintiff husband and advised him that he was sterile; that following the birth of the third child, plaintiffs relying upon the representation of Dr. Hall, resumed sexual intercourse and the plaintiff wife again became pregnant and gave birth to the couple's fourth child, which, as of the time of the trial, was a well child.

Plaintiffs sought damages against the defendant for the actual medical, hospital, and funeral expenses arising from the illness and death of the third child, the medical and hospital expenses of the third and fourth pregnancies, the physical pain and suffering of plaintiff wife in the course of the two pregnancies, the loss of consortium by the plaintiff husband during the two pregnancies and during the illness of the third child, the mental anguish of plaintiffs during the third and fourth pregnancies and during the illness and death of the third child, and the monetary expenses for the raising, care, and education of the fourth child.

The district court sustained twenty-five of defendant's special exceptions to plaintiffs' pleadings. Upon refusal of the plaintiffs to amend, the court dismissed the case against the defendant. Plaintiffs have appealed.

The record, as set out in plaintiffs' pleadings, shows that prior to their first meeting with Dr. Hall, Mrs. Hays had given birth to two deformed children. Their first child was and is afflicted with birth defects known as spina bifida and meningocele. Their second child was afflicted with the same maladies and died as a result thereof. Dr. Hall on or about July 28, 1966, performed a vasectomy surgical operation on Mr. Hays. The doctor was at the time of this operation aware of the child bearing history of appellants and knew that the purpose of the operation was to prevent appellants from bearing further children, and especially to remove the possibility of the birth of further deformed children. After such operation Dr. Hall informed Mr. Hays that the operation was successful and that he was incapable of fathering another child. The doctor requested Hays to return in approximately one month for the purpose of further examination by the doctor to determine his sterility. Mr. Hays returned to the doctor approximately one month later and was examined and tested; the test being in the nature of a prostatic massage. After the test Hays was informed by the doctor that he had no live sperm in his semen and that he was sterile. Relying upon this information and opinion of the doctor appellants resumed sexual intercourse without fear of pregnancy.

Mrs. Hays was on September 27, 1967, examined by her own physician and it was determined that she was pregnant . On or about January 11, 1968, appellants' third child was born. This third child suffered from the same malady as the first two, and after surgical treatment and hospitalization died on November 25, 1968. On September 28, 1967, following the discovery of his wife's pregnancy with the third child and prior to the birth of that child, Mr. Hays returned to the office of Dr. Hall and informed the doctor of his wife's pregnancy. The doctor again tested appellant husband and after such testing informed him that there were no live sperm in his semen, that he was sterile and could not cause his wife to become pregnant. Dr. Hall further advised Mr. Hays that the original vasectomy had been successful and that the pregnancy of his wife was probably caused by sperm cells having been trapped in the seminal tract above the vas deferens where the vasectomy incision was made, and that these sperm cells had caused the pregnancy. After this conference with the doctor and the representations made by the doctor, the appellant couple resumed sexual intercourse without fear of pregnancy after the birth of the third child. In July of 1968, Mrs. Hays was again informed by her physician that she was pregnant, and thereafter Mr. Hays returned to Dr. Hall who performed a third prostatic massage, and again advised Mr. Hays that he was incapable of producing children. Thereafter, on or about February 9, 1969, Mr. and Mrs. Hays' fourth child was born and as of the date of the trial this is a well child.

Appellants assert that they were required to expend medical and hospital expenses with regard to the pregnancy of the appellant wife with the third child, the birth of that child and its ensuing illness and to expend funeral expenses upon the death of such child; that they were required to expend medical and hospital expenses with regard to the pregnancy, delivery, and recuperation of the appellant wife with the fourth child; that during her pregnancies, deliveries, and recuperation with the third and fourth children the appellant wife experienced physical pain and suffering; that during these pregnancies, and during the illness and death of the third child the appellant husband suffered the loss of consortium with his wife; that upon the discovery of the pregnancy with their third child, the appellants experienced mental anguish which continued through the pregnancy and birth of the third child; that they suffered further mental anguish on the discovery of the deformed condition of the third child and throughout its ensuing illness, and upon and following the occasion of its death and funeral; that appellants experienced mental anguish upon the discovery of the fourth pregnancy which continued until said child was bord; that since the birth of the fourth child they have expended and will be required to expend in the future considerable sums for the raising, education and care of said child, which, though loved, was unplanned.

It was agreed by the parties...