An El Paso woman is suing her doctor for negligence over an unwanted pregnancy

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

Grissel Velasco didn’t want more kids.

In 2014, Velasco — 31 years old at the time — was expecting her third child, and was receiving care at Sun City Women’s Health Care in El Paso, owned by OB-GYN and then-El Paso City Council member Dr. Michiel Noe.

With Sun City staff’s guidance, allegedly at Noe’s recommendation, she paid to receive tubal ligation — also known as tube tying — at the same time she delivered her baby boy. Having any more C-section births in the future would be risky, she said she was told.

“They were the ones who read the papers to me, and for that reason I signed to not have children,” Velasco said in Spanish during an interview with KERA News. “I agreed to not having more children.”

But around October 2015, an at-home pregnancy test came out positive. An ultrasound at a New Mexico clinic confirmed Velasco was about four or five months pregnant with a healthy baby girl.

Velasco said she came out of the appointment in tears, terrified. She remembers later trying to explain to her son’s doctor how she was pregnant again when her son was only about a year old.

“I broke down in tears and said to her, ‘It's not my fault,’” Velasco said. “She tells me, ‘How come this isn't your fault?’ I tell her, no, it's not my fault. I mean, I paid to have surgery, and I don't know what the doctor did, because I'm pregnant again.”

Nearly 10 years later, Velasco’s medical negligence lawsuit against Noe and his clinic is in front of the Texas Supreme Court. The court’s ruling could determine to what extent people can be awarded damages for the burden of an unwanted pregnancy — or it could protect medical professionals from liability for causing those pregnancies due to negligence.

It’s also a ruling that could have major implications in a state like Texas, where strict abortion laws make getting an abortion nearly impossible after the overturning of Roe v. Wade.

What the law says

Texas’ abortion bans prioritize birth in almost all circumstances. The Texas Supreme Court examined the state’s narrow medical exemptions for abortion in court the very same day Velasco and Noe’s lawyers made their arguments to the state justices.

Velasco, now 40, said she didn’t want an abortion and grew to love her daughter before she was born. But the unwanted pregnancy stirred up complicated feelings and put her life plans on hold. The Ciudad Juarez native is a nail technician and hoped to study cosmetology and eventually open her own salon.

“I was late to accept my pregnancy,” she said. “It wasn't easy for me at all. I was very depressed, I cried a lot, sometimes I even had a really bad temper.”

In an affidavit, Velasco also stated she sometimes felt suicidal, angry, distraught and guilty for feeling that way.

Dallas attorney Linda Turley said Texas courts have ruled in a number of ways on whether and to what extent damages can be awarded for an unwanted pregnancy caused by negligence. Turley — who is not involved with the lawsuit but has experience with medical negligence cases — said the case’s novelty is probably why the state’s highest court accepted it.

“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,” Turley said. “We have a very strict anti-abortion law, and a woman basically has no right to terminate her pregnancy, so that in situations like Ms. Velasco found herself in, we’re far more likely to see that pregnancy go to term — even though it is unwanted — when it results from medical negligence in providing care.”

An El Paso district judge first dismissed Velasco’s claims of medical negligence, fraud, intentional infliction of emotional distress and other allegations. But a state appeals court later decided the evidence supported her medical negligence claim. Noe’s lawyers disagreed and brought the case to the state Supreme Court.

Noe, 62, has owned and operated Sun City Women's Health Care since 2001. His lawyer Diana Faust declined KERA’s requests for comment.

In court filings and during oral arguments, Noe and his lawyers say he didn’t perform tubal ligation on Velasco because her medical records indicated she didn’t request one. Noe testified Velasco also didn’t wait the full 30-day consent period before getting her tubes tied, as required by law.

Faust isn’t completely challenging the validity of Velasco’s claims, but she said if Noe were to pay damages for medical negligence, the amount would have to be equal to Velasco’s medical expenses caused by the unwanted pregnancy and birth — nothing more.

During Supreme Court oral arguments last month, she pointed out there are no other medical expenses on record for the pregnancy and birth aside from the $400 Velasco paid for tubal ligation, which was refunded around November 2015. The cap in Texas for noneconomic damages in a medical malpractice suit is $250,000, according to state law.

“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.

‘Overriding benefit rule’

Whether having a child is an absolute benefit, considering also their health and chance of survival, is a question Texas courts have weighed in an array of cases for decades.

The Texas Supreme Court ruled in 1975 a couple could be compensated for the medical and hospital expenses of their disabled child. The couple argued Dortha Jean Jacobs could have terminated her pregnancy if she hadn't been misadvised by her doctor about the effects of rubella on her child's health.

A Waco appeals court ruled in 1995 that although Sandra Flax gave birth to a healthy child after a failed contraceptive procedure, she could still recover damages because of health issues she faced during the unwanted pregnancy.

Outside of medical negligence lawsuits, the Texas Supreme Court recently ruled that while Kate Cox’s fetus received a “tragic diagnosis” of Trisomy 18, the Dallas native couldn’t legally get an in-state abortion because she and her physician hadn’t proved it was a life-threatening condition for Cox under the state’s medical exemption.

Joe Lopez, Velasco's lawyer, argued his client’s case isn’t about the health, benefit or monetary value of a child. It's also not about a failed procedure, he said. It’s about Noe and his staff allegedly failing to tell Velasco the procedure hadn’t been performed.

Under that reasoning, she would therefore deserve compensation for the mental anguish, pain and suffering the alleged negligence caused, something Lopez said a jury should decide.

“The court can't say, ‘Oh my gosh, she had a baby, this is great,’” he told the justices. “That's not how the world works anymore.”

Velasco has nothing but love for her family, which has grown to five kids — she had her tubes tied three years ago while delivering her youngest. Having miscarried before, Velasco said being a mother is the best thing that’s ever happened to her.

Still, Velasco said she would own up to the unexpected pregnancy if she believed it was her fault.

“In this case, I can tell you I love my daughter,” Velasco said. “But the doctor made a mistake. So, it's not that I'm demanding money, far from it. It's just that the doctor — what is he doing as a doctor?”