261 P.3d 1089
N.M.2011Background
- Dr. Steven Wenrich performed a tubal ligation during Cynthia Provencio's December 12, 2002 C-section, but pathology later showed the tissue was ligament, not fallopian tube, leaving her fertility intact.
- Post-operatively, Wenrich informed Provencio that the sterilization had failed and suggested a hysterosalpingogram (HSG) to determine continued fertility; Provencio did not follow up promptly, but completed an HSG in November 2003 showing the fallopian tube remained open.
- Provencio conceived her fifth child roughly five months after the HSG and later gave birth to a healthy child; the couple then sued in 2005 for wrongful conception and battery, seeking child-raising costs to the age of majority and punitive damages.
- At trial, the district court granted JMOL for Wenrich on wrongful conception, holding that Provencio’s knowledge of the failed sterilization defeated essential elements of the claim and that informing her of the failure broke the causal chain.
- Court of Appeals reversed, adopting the notion that wrongful conception damages are not limited to a duty-to-inform theory and that causation questions should go to the jury.
- Supreme Court granted certiorari to resolve whether Mendez’s duty-to-inform damages apply, and to define the proper scope of the doctor’s duty in wrongful conception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether child-raising damages are recoverable in wrongful conception claims. | Provencio seeks child-raising costs under Mendez for a born child caused by the failed sterilization. | Damages should be limited to negligent sterilization costs unless a duty-to-inform breach supports child-raising damages. | Only available when a duty-to-inform breach is proven. |
| Whether wrongful conception is a distinct tort or a within-medical-negligence claim. | Wrongful conception is a separate damages theory within malpractice. | Wrongful conception is indistinct from ordinary medical negligence with special damages. | Not a distinct tort; damages flow from duty to inform and other negligence aspects. |
| What is the appropriate duty in wrongful conception cases and how does notice affect liability? | Duty is broad and includes information about continued fertility; notice affects causation and fault. | Duty includes informing about unsuccessful sterilization; notice terminates liability for child-raising damages. | Duty to inform is central; damages for child-raising require breach of that duty. |
| Does Provencio’s knowledge of continued fertility before conception bar wrongful conception damages? | Lack of notice or misinformation caused the pregnancy; damages may still be available depending on breach. | Provencio knew she remained fertile; no wrongful conception damages should accrue. | Provencio's awareness prior to conception forecloses wrongful conception damages; JMOL affirmed. |
Key Cases Cited
- Lovelace Medical Center v. Mendez, 111 N.M. 336 (1991) (recognizes damages for child-raising in a duty-to-inform context)
- Provencio v. Wenrich (Court of Appeals, NM), 148 N.M. 799 (2010) (held wrongful conception is not a separate tort and that causation can involve notice)
- Torres v. El Paso Elec. Co., 127 N.M. 729 (1999) (jury standard on notice and causation; cited in JMOL context)
- Mendez, 111 N.M. 337 (1991) (establishes damages for child-raising under wrongfully unnotified pregnancy outcome)