Philadelphia Top Injury Lawyer Blog

As a Philadelphia medical malpractice lawyer, I occasionally handle claims with the unusual allegation that a child should not have been conceived. This may sound sad and ironic for couples struggling with infertility, but for those who sought a vasectomy or other sterilization, or have a high risk of birth defects, it's a serious matter. Such a claim was behind the New Mexico Supreme Court's decision in Provencio v. Wenrich, in which a woman sued a doctor who accidentally ligated a ligament instead of her one Fallopian tube. Cynthia Provencio had asked for a tubal ligation along with the Caesarian section that delivered her fourth child. Dr. Steven Wenrich informed Provencio of the mistake, but Provencio nonetheless conceived a fifth child. The Supreme Court found that the disclosure distinguished the case from a two-decade-old case in which the doctor did not inform the patient, and thus, Wenrich was entitled to judgment on the law.

The Caesarian and attempted tubal ligation took place in December of 2002. At a followup appointment a week later, Wenrich told Provencio that he had not "gotten" the Fallopian tube and said only a test would show how fertile she might still be; he provided her the forms for that test. However, Provencio declined to return to Wenrich; she took the necessary test in November of 2003, and it was revealed that she was still fertile. She and her husband conceived another child five months later and eventually gave birth to a healthy baby. In 2005, the Provencios sued Wenrich for wrongful conception and battery, seeking to recover the costs of raising the fifth child as well as punitive damages. They did not ask for any damages related to the cost of the failed sterilization or another such surgery. After a trial, Wenrich moved for judgment as a matter of law on the wrongful conception claim. The trial court granted it, finding that the Provencios knew they were fertile at the time of conception and the doctor had not failed to inform them, as required by the New Mexico Supreme Court in 1991's Lovelace Medical Center v. Mendez. The Provencios declined an invitation to request damages for the failed sterilization. They appealed to the Court of Appeals, however, which reversed, finding failure to inform was not a prerequisite for recovering wrongful conception damages.

The New Mexico Supreme Court reversed the case again, finding that informing the Provencios about their continued fertility was enough to meet the standard of care. Wrongful conception is a part of medical malpractice or medical negligence, the court said, and medical negligence is defined as failing in the duty to meet the standard of care. Thus, the high court found that the question in this case is whether Wenrich met the standard of care in his actions with Provencio. Mendez does not clearly define Wenrich's duty, the court said -- so it looked to general medical malpractice law to decide that the relevant duty is the duty to inform. New Mexico is one of only a handful of states that allow complete recovery for all of the costs of raising a child in a wrongful conception case, and the high court found that there should be a high bar to this recovery. Thus, the court said the standard for recovering these damages must be a failure of the duty to inform. In this case, the Provencios were informed that there might be a problem a week after the failed tubal ligation, and confirmed it 11 months later, well before they conceived their fifth child. Thus, the Supreme Court found the trial court was correct in granting judgment for the defendant.

As a Philadelphia birth injury lawyer, I handle the more typical birth injury cases, which allege that a doctor's bad decision hurt the baby or mother during birth. In Pennsylvania, we do not permit plaintiffs to recover damages for wrongful conception or wrongful birth. However, plaintiffs are certainly free to sue a doctor for the failure of a sterilization surgery, just as they would be in any state.