KRISTIN TURLEY GIBSON AND BILLY GIBSON, AS NEXT FRIENDS OF K.G., A MINOR, Appellants
v.
PLANNED PARENTHOOD GULF COAST, Appellee
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 ...