Find Laws Find Lawyers Free Legal Forms USA State Laws
Laws-info.com » Cases » New Mexico » Supreme Court » 2011 » Provencio v. Wenrich
Provencio v. Wenrich
State: New Mexico
Court: Supreme Court
Docket No: 32344
Case Date: 08/17/2011
Plaintiff: Provencio
Defendant: Wenrich
Preview:I attest to the accuracy and integrity of this document New Mexico Compilation Commission, Santa Fe, NM '00'04- 15:34:44 2011.09.16

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Opinion Number: 2011-NMSC-036 Filing Date: August 17, 2011 Docket No. 32,344 CYNTHIA AND PERFECTO PROVENCIO, Plaintiffs-Respondents, v. STEVEN WENRICH, D.O., Defendant-Petitioner. ORIGINAL PROCEEDING ON CERTIORARI Frank Kenneth Wilson, District Judge 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 1

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 2

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,
Download 11sc-036.pdf

New Mexico Law

New Mexico State Laws
New Mexico Tax
New Mexico Labor Laws
New Mexico Agencies
    > New Mexico DMV

Comments

Tips