Gibson v. Coast

          On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 2014-36925

          Panel consists of Justices Wise, Jewell, and Hassan.

          MEMORANDUM OPINION

          KEVIN JEWELL JUSTICE.

         Kristin and Billy Gibson, as next friends of their daughter, K.G., appeal a summary judgment dismissing K.G.'s negligence claims against appellee, Planned Parenthood Gulf Coast. K.G. alleged that Planned Parenthood's employee, while inserting an intrauterine device into Kristin, negligently perforated Kristin's uterus. K.G. claimed she was damaged as a result of Planned Parenthood's negligence, which is alleged to have occurred before K.G. was conceived. On appeal, K.G. argues that the trial court erred in granting summary judgment to Planned Parenthood because (1) Planned Parenthood owed a duty to K.G., before she was conceived, to exercise reasonable care in its placement of the intrauterine device, and (2) K.G. presented evidence that Planned Parenthood's breach of the standard of care proximately caused K.G.'s alleged injuries.

         We conclude that K.G. did not present a scintilla of evidence that Planned Parenthood's alleged negligence proximately caused the damages K.G. claims. Our determination on proximate cause renders it unnecessary to address the duty and breach questions raised. We affirm the trial court's judgment.

         Background

         We summarize the evidence in the light most favorable to appellant, as the summary-judgment nonmovant.^[1] On December 21, 2010, Kristin underwent a procedure at Planned Parenthood during which an intrauterine device ("IUD") was placed for contraception. The procedure was performed by a nurse employed by Planned Parenthood. Kristin had given birth to a child six weeks earlier. According to appellant, the position of Kristin's uterus coupled with her recent delivery placed her at an unacceptably high risk of suffering a perforation during placement of an IUD.

         Approximately fifteen months later, in April 2012, Kristin believed she was pregnant and returned to Planned Parenthood for confirmation and potential removal of the IUD. The pregnancy was confirmed, and the nurse attempted unsuccessfully to remove the IUD. Planned Parenthood referred Kristin to a higher level of care. The next Monday, Kristin saw Dr. Samuel Bharksuwan, the doctor who delivered her last child, to remove the IUD. Dr. Bharksuwan told Kristin that he could not see the IUD strings and explained that he thought the device must have "fallen out." No further removal attempts were made. Contrary to Dr. Bharksuwan's belief, however, the IUD had not fallen out, and Kristin maintained her pregnancy while retaining the IUD in her uterus.

         The following July, Kristin returned to Dr. Bharksuwan with complaints of second trimester bleeding. Dr. Bharksuwan released Kristin to continue her pregnancy at home and did not place her on antibiotics or bed rest. There is no indication in the record that Dr. Bharksuwan detected the IUD's presence at this time. One week later, on July 19, 2012, Kristin presented to the hospital with signs of an infection. Kristin's membrane had ruptured prematurely, and she delivered appellant by cesarean section on July 20, 2012, at twenty-six weeks gestation. Appellant remained hospitalized for approximately five months and was discharged on December 23, 2012. According to the record, appellant has not suffered any permanent or long-term injury, and Kristin testified that appellant is meeting her developmental milestones. Kristin has not been told that appellant will be unable to live a healthy life.

         Appellant's expert, Dr. James Martin Wheeler, testified that Planned Parenthood breached the applicable standard of care when its nurse placed the IUD on December 21, 2010 because the placement perforated Kristin's uterus. He acknowledged, however, that Planned Parenthood properly referred Kristin to a doctor in April 2012, after confirming Kristin's pregnancy and unsuccessfully attempting to remove the IUD.

         Kristin and Billy Gibson filed the present lawsuit, asserting claims individually and as next friends of appellant. The relevant petition named as defendants Samuel Bharksuwan, M.D., an obstetrician; Dr. Bharksuwan's solo professional association; Teva Pharmaceutical USA, Inc.; Teva Women's Health, Inc.;^[2] and Planned Parenthood. The plaintiffs alleged they sustained injuries in the course of prenatal care, treatment, and delivery. With respect to Planned Parenthood, the plaintiffs asserted causes of action for negligence and gross negligence.

         As to the parents' individual claims, Planned Parenthood moved for summary judgment on statute of limitations grounds. The trial court granted the motion and dismissed with prejudice the parents' individual claims against Planned Parenthood. The parents have not appealed that ruling, and their individual claims are not before us.

         Planned Parenthood also filed a motion for summary judgment as to the claims of the minor child, appellant. The motion was based on both traditional and no-evidence grounds. In the no-evidence portion of the motion, Planned Parenthood argued that appellant could present no evidence of the breach or proximate cause elements of her negligence claim. In the traditional portion of the motion, Planned Parenthood argued that, as a matter of law, it owed no duty to appellant in the placement of a birth control device in the mother prior to appellant's conception. As Planned Parenthood argued, "Texas does not recognize any duty of care owed to the unconceived." The trial court signed an order granting the motion for summary judgment in Planned Parenthood's favor on the specific ground that "no cause of action has been recognized in Texas for recovery for injuries resulting from conduct that occurred before [K.G.]'s conception."

         Following summary judgment for Planned Parenthood, only the claims against Dr. Bharksuwan remained, which the trial court set for trial in February 2018. Shortly before trial was to commence, the plaintiffs and Dr. Bharksuwan ...