LaPoint v. Shirley
| Decision Date | 05 March 1976 |
| Docket Number | Civ. A. No. SA-75-CA-69. |
| Parties | Norman LaPOINT, joined by his wife, Olga LaPoint v. Robert E. SHIRLEY, Jr., M. D., and Bexar County Hospital d/b/a Robert B. Green Hospital. |
| Court | U.S. District Court — Western District of Texas |
Kermit W. Fox, Jr., San Antonio, Tex., for plaintiffs.
Kenneth L. Clark and David Stephenson, Clark, Thornton & Summers, John E. Clark, U. S. Atty., by Hugh P. Shovlin, Edward M. Johnson, Asst. U. S. Attys., Guy P. Allison, San Antonio, Tex., for defendants.
On the 12th day of February, 1976, came on for hearing the Motion for Dismissal pursuant to Rule 12(b)(6) or, in the alternative, Motion for Summary Judgment pursuant to Rule 56 filed by the defendant, Robert E. Shirley, Jr., M. D., in the above styled and numbered cause and the Court, having considered the motion and response thereto and the arguments of counsel together with the records and file of the case, is of the opinion and so finds that the motion should be granted.
Plaintiffs' Complaint was originally filed January 17, 1975 in the District Court of the 45th Judicial District of Bexar County, Texas. Plaintiffs alleged in their First Amended Original Petition that their last child, Kirk Patrick, was born to them as the result of negligence on the part of Doctor Robert E. Shirley, Jr. in performing an unsuccessful Pomeroy bilateral tubal ligation at the Robert B. Green Hospital in San Antonio, Texas on or about January 18, 1973 and prayed for damages in the amount of $45,000.00 to compensate them for the additional cost of housing, clothing, food, education and medical care to be incurred in rearing this child to majority.
At the time of the operation in question, Doctor Shirley was an officer of the United States Army participating in a residency exchange program between the United States Army and the University of Texas Medical School at San Antonio. Thus, on March 13, 1975, the case was removed from the State District Court to the United States District Court for the Western District of Texas pursuant to 28 U.S.C., Section 1442a. With leave of Court, plaintiffs filed a Second Amended Original Petition seeking damages on behalf of the child, Kirk Patrick, for the repair of a birth defect, an umbilical hernia, and for permanent damage and weakness to his abdomen and for loss in his earning capacity because of such permanent damage and weakness.
The case at Bar fits generally into a category of cases that have been designated "wrongful birth" cases. Though there is a paucity of cases dealing with this situation, the State Courts of Texas have had some experience in the matter.1 In its present posture, the law of the State of Texas does not provide for a cause of action for the birth of a normal, healthy child after an unsuccessful bilateral tubal ligation even though there has been negligence on the part of the physician performing the operation. Terrell v. Garcia, 496 S.W.2d 124 ().2
The Terrell case, supra, and the instant case are very similar in that both arose out of unsuccessful Pomeroy bilateral tubal ligation operations performed by physicians at the Robert B. Green Hospital. The only factual difference is that the successful, but unwanted, pregnancy in Terrell produced a normal, healthy child, while the child in the instant case was born with a birth defect, an umbilical hernia. The $45,000.00 damages initially sought by the plaintiffs herein are for the same types of expenses as were sought in Terrell, supra, and under the rationale of that case are not recoverable and must, therefore, be disallowed. See also Hayes v. Hall, 477 S.W.2d 402 (). With respect to this claim for damages, therefore, defendant's Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted must be granted.
The Court now turns to the very interesting and rather serious questions raised by plaintiffs' claim for an additional $50,000 in damages as a result of their son's being born with an umbilical hernia. The Court has not been cited to, nor has it found, any case in which the Courts of Texas have dealt directly with this precise problem. As noted above, there is in Texas no recovery available to the parents for a normal, but unwanted, birth resulting from negligence in the performance of an unsuccessful bilateral tubal ligation. Any recovery for the birth of an abnormal child in such situation, either by the parents or on behalf of the child, must, therefore, be based on the alleged negligence of the doctor who performed the unsuccessful operation. In this respect, the doctrine of proximate cause in Texas must be examined to determine whether these additional damages are compensable. Recovery on a theory of negligence presupposes the successful application of the doctrine of proximate cause in connecting the alleged negligence with the alleged injury. For the purposes of considering the motions before the Court it is, as heretofore stated, assumed as undisputed fact that there was negligence on the part of the doctor in performing the operation in question and that the child was born with an umbilical hernia. Plaintiffs in their response to defendant's motion rely heavily on the case of Jacobs v. Theimer, 519 S.W.2d 846 (Tex., 1975) reh. den. March, 1975. Basing their argument on Jacobs, supra, plaintiffs urge that a cause of action does in fact exist for these additional damages they seek. The Jacobs case involved the negligent failure to diagnose the existence of rubella during the first trimester of pregnancy. The pregnancy was allowed to go to full term and the child was born with numerous defects known to be directly attributable to the mother having had the disease during the first trimester of pregnancy. There are factual differences between the Jacobs case and the case at Bar which distinguish its application of the doctrine of proximate cause.
The concept of proximate cause in tort law in Texas consists of two...
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Phillips v. United States
...life"). See notes 4 and 6, infra. 2 Gildiner v. Thomas Jefferson Univ. Hosp., 451 F.Supp. 692 (E.D.Pa.1978); Lapoint v. Shirley, 409 F.Supp. 118 (W.D.Tex.1976); Smith v. United States, 392 F.Supp. 654 (N.D.Ohio 1975); Elliot v. Brown, 361 So.2d 546 (Ala. 1978); Curlender v. Bio-Science Labo......
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Phillips v. United States
..."wrongful pregnancy" cases involve unplanned children who, coincidentally, were born with congenital defects. E. g., LaPoint v. Shirley, 409 F.Supp. 118 (W.D. Tex.1976); Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (Pa.Super.19......
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Becker v. Schwartz
...Tort (8 St. Mary's L.J. 140); Comment, Preconception Torts: Foreseeing the Unconceived (48 U.Col.L.Rev. 621).5 (See, e. g., La Point v. Shirley, D.C., 409 F.Supp. 118 (unsuccessful tubal ligation); Clegg v. Chase, 89 Misc.2d 510, 391 N.Y.S.2d 966 (unsuccessful sterilization); Coleman v. Gar......
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Sorkin v. Lee
...(unsuccessful sterilization; measuring cost of life against its worth is too conjectural and against public policy); LaPoint v. Shirley, 409 F.Supp. 118 (W.D.Tex.) (unsuccessful tubal ligation; follows Terrell v. Garcia, infra); Terrell v. Garcia, 496 S.W.2d 124 (Tex.), cert. den. 415 U.S. ......
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Michele Goodwin, a View from the Cradle: Tort Law and the Private Regulation of Assisted Reproduction
...of those with only private insurance."). 270 Newacheck, supra note 268, at 79. 271 Id. 272 Id. 273 For example, in LaPoint v. Shirley, 409 F. Supp. 118, 119-22 (W.D. Tex. 1976), the court denied relief for the rearing of a child born with severe disabilities resulting from a botched sterili......