Court Weighs Damages for Pregnancy by Negligence

Grissel Velasco paid to have her tubes tied at the same time she delivered her third child at the age of 31. Staff at Sun City Women's Health Care in El Paso, Texas, had told her it would be risky to have more births by cesarean section, and Dr. Michiel Noe, the OB-GYN who owned the clinic, had recommended tubal ligation, Velasco tells KERA News. She was therefore shocked when, a year after giving birth, she learned she was halfway through another pregnancy. Though she came to love the fetus that became her fourth child, she sued Noe and the clinic for medical negligence and fraud. Almost a decade later, the case is before the state Supreme Court, which will decide, as one expert puts it, whether a woman with an unwanted pregnancy in Texas has any options at all.

"What this case points out in conjunction with the elimination of rights under Roe is that when a woman does have an unwanted pregnancy in Texas, she has no options," says Linda Turley, a Texas attorney with experience in medical negligence cases, referring to the state's strict abortion laws, which "make getting an abortion nearly impossible," per KERA. Noe claims he didn't perform tubal ligation because there was no request for one in Velasco's medical records. He also claims Velasco didn't wait the 30-day consent period as required by law. The $400 Velasco paid for tubal ligation was refunded in 2015. But Velasco's lawyer, Joe Lopez, says Noe and the clinic should pay compensation for pain and suffering caused by the alleged failure to inform Velasco that the procedure wasn't performed.

Noe's lawyer, Diana Faust, argues that, if required to pay damages, Noe should only have to cover medical expenses related to the pregnancy and birth. "The court would have to conclude that this benefit, this joy, this blessing that is to be presumed from the birth of a healthy child is not a legal harm for which damages are recoverable," she said during oral arguments last month. "The court can't say, 'Oh my gosh, she had a baby, this is great,'" Lopez responded. In an affidavit, Velasco said she felt suicidal upon learning of the unwanted pregnancy. Lopez told the justices that mental anguish continued after the birth of the girl, now 7. He was asked about a potential cutoff point for recovering compensation for mental anguish, and whether new damages might be requested if the child were to commit a crime, per Law360. (More Texas Supreme Court stories.)