Failed Sterilization, Wrongful Conception, Duty to Inform and Damages in New Mexico

The law regarding a failed tubal ligation continues to evolve in New Mexico with the recent case new Mexico Supreme Court case of Provencio v. Wenrich. New Mexico was among the earliest, and remains among the few states, that recognize a claim for wrongful birth of a child following a failed sterilization procedure.

New Mexico first recognized the claim in the 1991 New Mexico Supreme Court Case of Lovelace v. Mendez. In that case, the sterilization procedure failed as a result of medical negligence. The negligence was magnified by the doctor‘s deliberate failure to notify the patient of the failure. As a result, the patient believed that she was infertile and took no measure to protect against unwanted pregnancy. She became pregnant giving birth to a healthy child.

The plaintiff in Mendez brought a wrongful conception claim against the doctor requesting a number of damages most significant of which was the future costs of raising the child. New Mexico recognized the claim for wrongful conception for the failed sterilization procedure. However, the duties and causal connections were much more straightforward in that case than in Provencio v. Wenrich.

Provencio involved a failed tubal ligation surgery following the birth of the plaintiff‘s fourth child. However, unlike the Mendez case, the doctor immediately informed the plaintiff at the first follow-up appointment that the procedure had failed. The plaintiff chose not to have a corrective procedure. The plaintiff later became pregnant and gave birth to a healthy child. The plaintiff then sued for wrongful conception and battery. Though other damages such as the costs of the corrective procedure along with pain and suffering were available, the plaintiff chose only to pursue the costs of raising the child along with punitive damages.

Again, it was undisputed at trial or throughout the appellate process that the plaintiff was aware of the failed sterilization and chose not to take corrective action. On the one hand, the Supreme Court found that the New Mexico Court of Appeals properly rejected the defendants argument of independent intervening cause, “Because the independent intervening-cause doctrine does not apply to a plaintiff‘s own negligence.” On the other hand, the Supreme Court disagreed with the New Mexico Court of Appeals finding that the doctor‘s notice to the plaintiff was merely a factor to be considered by the jury in the apportionment of fault.

The Court of Appeals saw the case as a comparative negligence case while the Supreme Court viewed it strictly in terms of legal duty. The Court in Mendez did not have to address the issue of legal duty since it was undisputed that the doctor failed to notify the patient of the failed procedure. In Provencio, the Court found that the doctor though negligent fully met his duty to inform.

The failure to inform was the basis for holding the doctor in Mendez responsible for the full costs of future care of the child. The Supreme Court in Provencio refused to allow these extraordinary damages on public policy grounds. The Court set forth a hypothetical where a patient knew of the failed procedure yet gave birth to multiple children over time, each time seeking damages for the costs of raising each child as a result based upon the original failed procedure.

The Court refused to there. This was not a comparative negligence case for the Court but more akin to an assumption of the responsibility. Though other damages were available, the plaintiff assumed the responsibility for raising the child when she knowingly failed to correct the failed sterilization.


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