{1} Since we issued Lovelace Medical Center v. Mendez,
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
{6} The ease 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 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,
Because a “wrongful conception” action is nothing more than a normal medical malpractice action with a unique type of damages, Plaintiffs, as in any medical malpractice action, “ha[ve] the burden of proving that: l)[D]efendant owed [them] a duty recognized by law, 2)[D]efendant failed to conform to the recognized standard of medical practice in the community, and, 3) the actions complained of were the proximate cause of [P]Iaintiff[s’] injuries.” Schmidt v. St. Joseph’s Hosp.,105 N.M. 681 , 683,736 P.2d 135 , 137 (Ct.App.1987). Plaintiffs do not, however, have to prove that Defendant failed to disclose that the sterilization procedure was unsuccessful, and the fact that Defendant here undisputedly informed Plaintiffs that the sterilization was unsuccessful does not automatically bar Plaintiffs’ ease from going to the jury-
Provencio,
{9} The Court of Appeals also rejected the district court’s causation analysis, and correctly so. Id. ¶¶ 13-16. Because the independent intervening-cause doctrine does not apply to a plaintiffs own negligence, Defendant could not have interrupted the causal chain as a matter of law by disclosing to Mrs. Provencio that she was still fertile. Id. ¶ 13. Relying on general principles of New Mexico negligence law, the Court of Appeals reasoned that “the effect of the doctor’s disclosure” goes to the issues of causation and comparative fault, both within the province of the jury. Id. ¶ 11. Because “reasonable minds could differ on the question of whether and to what extent [Defendant’s] actions and the actions of Plaintiffs caused the pregnancy,” the Court of Appeals determined that the ease should have gone to the jury to determine liability and, if needed, apportion fault between the parties. Id. ¶ 12.
{10} We granted Defendant’s petition for a writ of certiorari to clarify the scope and meaning of our Mendez opinion. Provencio v. Wenrich,
DISCUSSION
{11} As our resolution of this appeal depends on the applicability of Mendez, our seminal opinion in this area, we begin by reviewing that ease. The facts in Mendez
{12} In a seminal opinion, we held that New Mexico would join a minority of jurisdictions which recognize damages resulting from the birth of an unplanned, yet healthy child. Id. at 345, 349-50,
{13} In the current case, Plaintiffs urge us to adopt the Court of Appeals opinion and hold that “in an ordinary medical malpractice claim stemming from a negligently performed sterilization procedure, the cost of raising a child may be recovered when a doctor’s negligence causes the birth of an unwanted child,” regardless of whether that doctor informs the patient about the failed procedure. Provencio,
{14} Naturally, Defendant disagrees. According to Defendant, the issue here is not causation but duty. Defendant contends that the particular damages discussed in Mendez flow from the breach of a duty to fully and timely inform the patient of her continued fertility. Under Defendant’s reading of Mendez, once a doctor sufficiently notifies a patient that she remains fertile following an unsuccessful sterilization procedure, even when caused by medical negligence, liability for child-rearing costs, as opposed to lesser damages like the cost of a second sterilization procedure, terminates as a matter of law.
{15} As a preliminary matter, we agree with the Court of Appeals’ assessment that wrongful conception is not a distinct tort. It is well-established among courts and scholars that wrongful conception sounds in the law of medical negligence. See, e.g., Procanik v. Cilio,
{16} We are of the view, however, that this case is fundamentally about duty, which is for the court alone to define. Before the jury can resolve any factual matter, like causation, the court must first frame the relevant law. In a negligence action, this means the court must first find an actionable duty of care and then define the nature and scope of that duty. See Herrera v. Quality Pontiac,
{17} We recognize that Mendez does not clearly resolve the question of duty. In fact, Mendez appears susceptible to multiple interpretations, some of which support the Court of Appeals opinion and some of which do not. For example, we stated in Mendez that the tortious conduct was both “the doctor’s negligence in performing the sterilization operation and failing to inform the mother of the unsuccessful outcome.” Mendez,
{18} We recognize that any ambiguity in Mendez is due to its concern with damages— whether New Mexico would recognize the recovery of child-raising costs as a matter of policy — rather than a careful analysis of every aspect of the doctor’s duty. Id. at 342,
{19} As we previously mentioned, wrongful birth and wrongful conception are negligence actions, yet these claims are unlike other, more traditional claims for pre-natal medical malpractice. In the more typical prenatal medical negligence case, it is the child or the child’s representative who asserts a claim for damages against a healthcare provider, generally a doctor, for the child’s own injuries. See generally Siemieniec v. Lutheran Gen. Hosp.,
{20} At the other end of the negligence spectrum is wrongful birth, which is a
{21} Wrongful birth is appropriately characterized as a claim-based failure to diagnose or failure to advise the parents. The duty owed is part of the doctor’s obligation to provide adequate care so that the parents can make an informed decision about the risks of pregnancy and childbirth; adequate care includes adequate notice. See Keeton, supra § 55, at 370 (“The defendants in [a wrongful birth case] are typically doctors charged with negligence ... in failing to diagnose or inform the parents that the child might be born deformed — because of a disease contracted by the mother or a genetic condition in one of the parents — in time to permit the termination [or avoidance] of the pregnancy.”). 1
{22} Wrongful conception is a closely related medical negligence claim that involves the birth of a healthy, but unplanned, child. See Cowe v. Forum Group, Inc.,
{23} There is a dearth of case law discussing the nature and scope of a doctor’s duty in a wrongful conception case. Like our opinion in Mendez, most of the reported decisions in this area focus not on the nature of the tortious conduct, but on whether the birth of a healthy child is a compensable injury and whether child-raising costs are too speculative or contrary to public policy. See generally David Kerrane, Part Eight: Parenting: Damages for Wrongful Pregnancy, 11 J. Contemp. Legal Issues 467 (Nov. 2000) (discussing the treatment of wrongful conception cases in various state courts); Podewils, supra (same). Rather than relying on out-of-state cases, which we do not find helpful in an area of law where our precedent has already chosen a different course, the question of duty is best answered by resorting to general principles, including the nature of the doctor’s tortious conduct, and our medical negligence jury instructions. “The ... scope of a defendant’s duty of care is a legal question that depends on the nature of the ... activity in question, the parties’ general relationship to the activity, and public policy considerations.” Edward C. v. City of Albuquerque,
{24} In Mendez, we identified two related injuries suffered by the parents. Ill N.M. at 345,
{25} The Court of Appeals opinion, again specifically embraced by this Court in Mendez, also discussed several medical negligence jury instructions.
{26} These jury instructions relied upon in Mendez are relevant only in failure-to-inform cases. These specific jury instructions, which were cited with approval by our Court of Appeals in Mendez, support a conclusion that the duty owed by a doctor in a wrongful conception case is the duty to inform following an unsuccessful sterilization procedure.
{27} In describing the differences between prenatal medical negligence, wrongful birth, and wrongful conception, we observe that a doctor may owe multiple duties of care when treating a particular patient. For example, a doctor owes a general duty to provide competent care in treating a patient’s medical condition. See, e.g., Mireles v. Broderick,
{28} As we previously stated, New Mexico remains one of very few jurisdictions to permit complete recovery for the costs of raising a child to the age of majority in a wrongful conception case. Because child-rearing costs will normally far exceed other damages associated with a failed sterilization procedure, such as the costs of a second procedure and pain and suffering, courts should take great care when shifting the full weight of child-rearing expenses onto someone other than the parents. As a matter of sound policy, we think that the extraordinary damages of raising a child to the age of majority should be reserved for extraordinary cases like Mendez.
{29} Mendez helps explain why this extraordinary remedy should only be available in duty-to-inform cases. In Mendez, the future costs of raising the unexpected child were necessarily going to fall on either the doctor or the parents. Between the negligent doctor who failed to disclose information about the unsuccessful sterilization procedure, and the unsuspecting parents who mistakenly believed they were no longer fertile, it was fair to require the doctor to pay for the subsequent pregnancy and any children resulting from that pregnancy. It was the doctor in Mendez, not the patient, who controlled the relevant medical information. By conforming his conduct to the relevant standard of care and fulfilling his duty to inform, the doctor in Mendez could have empowered the parents to take whatever measures they deemed appropriate to avoid pregnancy. It was the doctor’s failure to do so that placed the parents in a position they could not be reasonably expected to control. Following this reasoning, we think the Mendez court intended to define the duty, though somewhat obscured, to include an obligation of notice. Conversely, if the doctor had provided notice to Mr. and Mrs. Mendez, we believe the Court would not have authorized the recovery of future, child-rearing costs.
{30} Turning to the present case, Mrs. Provencio, unlike Mrs. Mendez, was aware that she remained fertile well before conceiving her next child, whether the source of that knowledge was Dr. Wenrich’s ambiguous warning at the first post-operative conference or the results of the later-completed HSG test. In contrast to Mendez, Mr. and Mrs. Provencio possessed information that they could have used to avoid conception, assuming this was their goal. As a matter of sound policy, we believe that shifting the costs of raising Plaintiffs’ fifth child onto Dr. Wenrieh is not commensurate with the duty that he breached nor with the harm that such a breach could have caused.
{31} One particular hypothetical illustrates the soundness of this policy. If we were to allow Mendez-type recovery when parents are aware of their continued fertility, then a jury could award child-raising costs not only for the resulting child, but for all children bom thereafter. Theoretically, a doctor’s liability for a poorly-performed sterilization procedure could continue for the reproductive life of that patient, irrespective of whether that patient knew or should have known of her continued fertility, and irrespective of whether the doctor’s post-surgical conduct had deprived that patient of a reasonable opportunity to avoid conception.
{32} This result would be absurd and unjust. It would also invite unnecessary confusion, since the jury’s attention would not be directed towards a doctor’s post-surgical conduct and whether these actions deprived the parents of the opportunity to make an informed choice about pursuing additional children. Under Plaintiffs’ theory, doctors would have no incentive to inform their patients about the results of a failed procedure since providing notice would not terminate liability in a future lawsuit for medical negligence based on the failed surgery. As a matter of policy, our rulings should encourage doctors to act responsibly and notify their patients about surgical results.
{33} Accordingly, we hold that, following a failed sterilization procedure, damages related to an additional pregnancy,
{34} Because the timeliness and adequacy of a doctor’s warning are questions of fact that go to the element of breach, we see no reason to discuss in any detail the components of a successful warning following a failed sterilization procedure. See Herrera,
{35} In the current case, we can easily resolve the notice question. Despite our misgivings about the adequacy of Defendant’s post-surgical communications to Mrs. Provencio, the fact remains that Plaintiff understood she was still fertile. She admitted as much at trial; there is no dispute on this question. The nature of Mrs. Proveneio’s admission is such that neither she nor her husband could have suffered the informational injury that lies at the heart of a claim for wrongful conception. Accordingly, the trial court was correct in granting Defendant’s motion for judgment as a matter of law. See Torres v. El Paso Elec. Co.,
CONCLUSION
{36} We reverse the Court of Appeals.
{37} IT IS SO ORDERED.
Notes
. A more controversial cause of action is wrongful life, which is a negligence claim brought by a disabled child or that child’s representative "for the harm of being born deformed." Keeton, supra § 55, at 370. "By and large, the child’s wrongful life action mirrors that of the parents’ wrongful birth claim, with one major exception: it generally is rejected by the courts.” Donald L. DeVries, Jr., and Alan M. Rifkin, Wrongful Life, Wrongful Birth, and Wrongful Pregnancy: Judicial Divergence in the Birth-Related Torts, 20 Forum 207 (1985).