March 18, 2010 – Cynthia and Perfecto Provencio v. Steven L. Wenrich, No. 28,882

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	MARCH 18, 2010
NO. 28,882
CYNTHIA and PERFECTO
PROVENCIO,
Plaintiffs-Appellants,
v.
STEVEN L. WENRICH, D.O.,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Frank K. Wilson, District Judge
Law Offices of James P. Lyle, P.C.
James P. Lyle
Albuquerque, NM
for Appellants
Sandenaw & Anderson, P.C.
Thomas A. Sandenaw, Jr.
CaraLyn Banks
Las Cruces, NM
for Appellee

OPINION
FRY, Chief Judge.
{1} 	Plaintiffs Cynthia and Perfecto Provencio appeal the district court’s dismissal
of their negligence case against Defendant Steven Wenrich, D.O. Plaintiffs filed suit
against Defendant seeking damages for the costs of raising their child conceived after
an unsuccessful sterilization procedure performed by Defendant. After the close of
Plaintiffs’ case at a jury trial, Defendant moved for judgment as a matter of law,
arguing that proof of Defendant’s failure to notify Plaintiffs was an essential element
of the “wrongful conception” tort and that because it was undisputed that Defendant
informed Mrs. Provencio that she was still fertile, the case should be dismissed. The
district court granted the motion, dismissing Plaintiffs’ claims against Defendant. For
the following reasons, we reverse the judgment of the district court and remand for a
new trial.
BACKGROUND
{2} 	The facts of this case are largely undisputed. 	In 2002, Mrs. Provencio
consented to have a tubal ligation performed by Defendant following the delivery of
Plaintiffs’ fourth child. During the procedure, Defendant ligated what he thought was
Mrs. Provencio’s only intact fallopian tube and sent a sample of the tissue for a
pathology test. The pathology report indicated that the tissue Defendant had sent in

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was ligament, not fallopian tube. 	Defendant scheduled an appointment with Mrs.
Provencio shortly after the surgery, at which he advised her that he did not ligate the
fallopian tube and that she could therefore still get pregnant. Defendant also told Mrs.
Provencio that she should have a fertility test to verify with certainty whether she
could still get pregnant. Defendant gave her an order for the test and advised her that
she needed to schedule the appointment. Despite the fact that Defendant ordered the
test in December 2002, Mrs. Provencio did not undergo the testing until November
2003.
{3} 	After the fertility test revealed that Mrs. Provencio was still fertile, she did not
seek additional care from Defendant, nor did she seek contraceptive care from any
other health care providers. Mrs. Provencio testified that after Defendant first told her
that the tubal ligation was unsuccessful and after the fertility test confirmed her
continued fertility, she used condoms as her sole method of birth control because “it
was pretty clear to me that . . . I could probably still get pregnant so of course I wasn’t
going to . . . try anything without having protection.” 	Approximately five months
after she received the results of the fertility test, Mrs. Provencio conceived a fifth child
and, on January 12, 2005, she gave birth to that child. Following the baby’s delivery,
Mrs. Provencio underwent a second tubal ligation. She indicated that she was using
condoms at the time she got pregnant.

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{4} 	Following the birth of their fifth child, Plaintiffs filed suit against Defendant,
alleging that Defendant had negligently performed the sterilization procedure and that
Plaintiffs had suffered the injury of an unwanted pregnancy. Among other things,
Plaintiffs sought as damages the “reasonable expenses necessary to raise their fifth
child to the age of majority.” At trial, following the conclusion of Plaintiffs’ case in
chief, Defendant moved for judgment as a matter of law pursuant to Rule 1-050
NMRA. The district court granted the motion, concluding that a failure to inform is
an essential element of the tort of “wrongful conception” and that Defendant had
undisputably informed Plaintiff of her continued fertility. The court further concluded
that “the chain of causation was interrupted” by Defendant’s “relay of information to
. . . Plaintiff[] regarding the failed” procedure. Plaintiffs appeal.
DISCUSSION
Standard of Review
{5} 	Our Supreme Court has cautioned that judgment as a matter of law “is a drastic
measure that is generally disfavored inasmuch as it may interfere with the jury
function and intrude on a litigant’s right to a trial by jury.” Torres v. El Paso Elec.
Co., 1999-NMSC-029, ¶ 26, 127 N.M. 729, 987 P.2d 386, overruled on other grounds
by Herrera v. Quality Pontiac, 2003-NMSC-018, 134 N.M. 43, 73 P.3d 181. 	The
remedy is appropriate only “when there are no true issues of fact to be presented to a

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jury” and where “it is clear that the facts and inferences are so strongly and
overwhelmingly in favor of the moving party that the judge believes that reasonable
people could not arrive at a contrary result.” Torres, 1999-NMSC-029, ¶ 26 (internal
quotation marks and citation omitted). When reviewing a judgment as a matter of law,
“we consider all evidence that has been properly admitted at trial, as well as all
reasonable inferences deducible therefrom, resolving any conflicts or contradictions
in the evidence in a light most favorable to the party resisting the motion.” McNeill
v. Rice Eng’g & Operating, Inc., 2003-NMCA-078, ¶ 31, 133 N.M. 804, 70 P.3d 794.
Our review is de novo. Couch v. Astec Indus., Inc., 2002-NMCA-084, ¶ 57, 132 N.M.
631, 53 P.3d 398.
{6} 	In the present case, the district court based the judgment as a matter of law on
its view of the elements of the tort of “wrongful conception.” 	Plaintiffs frame the
issue as whether the tort for “wrongful conception” requires both a negligent failure
to perform a sterilization procedure and a failure to inform the patient of the
unsuccessful outcome, as the district court concluded, or whether the tort merely
requires a showing that there was a negligent failure to perform the procedure. 	On
this question of law, our review is de novo. 	See Gabaldon v. Erisa Mortgage Co.,
1999-NMSC-039, ¶ 7, 128 N.M. 84, 990 P.2d 197 (noting that whether a plaintiff
alleges a valid theory upon which relief may be granted is a question of law and that

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all questions of law are reviewed de novo).
“Wrongful Conception” is not a Distinct Tort in New Mexico, and Failure to
Disclose is Therefore Not an Essential Element of Plaintiffs’ Cause of Action
{7} 	Plaintiffs contend that the tort at issue arises solely from a doctor’s negligence
in performing a sterilization procedure and that whether the doctor informed the
patient of the failed outcome goes only to the degree of fault. Defendant argues that
if there is no failure to inform the patient of the unsuccessful outcome, then the tort
is not actionable as a matter of law. Both parties rely on Lovelace Medical Center v.
Mendez, 111 N.M. 336, 342, 805 P.2d 603, 609 (1991), in which our Supreme Court
held that a parent may recover the costs of raising a child from birth to adulthood
when a child is conceived as a result of a negligently performed, unsuccessful
sterilization operation. 	In holding that such damages are recoverable, the Court
described the tort as “the doctor’s negligence in performing the sterilization operation
and failing to inform the mother of the unsuccessful outcome.” Id. (emphasis added).
While Defendant contends that this statement establishes that the “wrongful
conception” tort requires both a negligent procedure and a failure to warn, Plaintiffs
argue that this statement was merely dictum.
{8} 	We agree with Plaintiffs. The Court’s primary concern in Mendez was whether
the costs of raising a child to adulthood are recoverable when a doctor negligently
performs a sterilization procedure. Id. (noting that “the fundamental question on the

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merits issue in this appeal is a question as to [the] measure of damages”). Because the
case was on review from summary judgment, the Court assumed that the plaintiff
would be able to prove her allegations against the doctor. Id. at 347, 805 P.2d at 614.
Thus, when the Court referred to the tort as including a negligent procedure and a
failure to warn the patient of the unsuccessful outcome, it was merely repeating the
allegations of negligence that the plaintiff had raised, not setting out the elements of
a new tort.
{9} 	Nowhere in its opinion did the Court recognize the existence of a specific tort
in New Mexico for “wrongful conception” with specific elements that must be proved
at trial. 	See id. at 337-54, 805 P.2d at 604-21. Instead, the Court explained that the
plaintiff’s claim constituted “an ordinary claim for negligence or medical malpractice”
and that “the damages at issue” were “damages that [the] plaintiffs are entitled to
claim under ordinary principles of tort law as applied in this state.” Id. at 349, 805
P.2d at 616 (Alarid, J., app. opinion). 	The Court noted that it saw “no reason to
relieve [the] defendant of the responsibility imposed by ordinary principles of tort law,
which require [the] defendant to indemnify [the] plaintiffs against the financial
consequences that are the proximate result of [the] defendant’s negligence.” Id. Thus,
Mendez did not delineate specific elements of a new “wrongful conception” cause of
action, but instead determined only that in an ordinary medical malpractice claim

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stemming from a negligently performed sterilization procedure, the cost of raising a
child may be recovered when a doctor’s negligence causes the birth of an unwanted
child. To the extent that New Mexico recognizes a “wrongful conception” action, that
term relates only to the special type of damages that may be available when the
alleged malpractice involves a sterilization procedure.
{10} 	Because a “wrongful conception” action is nothing more than a normal medical
malpractice action with a unique type of damages, Plaintiffs, as in any medical
malpractice action, “ha[ve] the burden of proving that: [(]1) [D]efendant owed [them]
a duty recognized by law[,] [(]2) [D]efendant failed to conform to the recognized
standard of medical practice in the community[,] and, [(]3) the actions complained of
were the proximate cause of [P]laintiff[s’] injuries.” Schmidt v. St. Joseph’s Hosp.,
105 N.M. 681, 683, 736 P.2d 135, 137 (Ct. App. 1987). Plaintiffs do not, however,
have to prove that Defendant failed to disclose that the sterilization procedure was
unsuccessful, and the fact that Defendant here undisputably informed Plaintiffs that
the sterilization was unsuccessful does not automatically bar Plaintiffs’ case from
going to the jury.
{11} 	Nonetheless, the effect of the doctor’s disclosure should be considered by the
jury in its assessment of causation and, if there is causation, the apportionment of the
parties’ relative fault. We have previously explained that “[c]ausation of injury is an

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ultimate fact in every case” and that “[n]egligence and causal connection are generally
fact questions for the jury, unless reasonable minds cannot differ.” 	Armstrong v.
Indus. Elec. & Equip. Serv., 97 N.M. 272, 276, 639 P.2d 81, 85 (Ct. App. 1981). In
addition, under our comparative negligence system, a plaintiff “is entitled to recover
damages diminished in proportion to the fault attributable to him.” 	Id. at 277, 639
P.2d at 86.
{12} 	Assuming that Plaintiffs can prove that Defendant was negligent in failing to
properly sterilize Mrs. Provencio, we conclude that reasonable minds could differ on
the question of whether and to what extent his actions and the actions of Plaintiffs
caused the pregnancy. On the one hand, but for Defendant’s failure to perform the
procedure correctly, Mrs. Provencio would not have been fertile and could not have
become pregnant. On the other hand, it is for the jury to determine the extent to which
Plaintiffs’ knowledge of Mrs. Provencio’s continued fertility contributed to cause the
pregnancy and damages. If, for example, the jury were to find that Mrs. Provencio
was negligent in failing to undergo a second sterilization procedure or in failing to use
adequate 	methods 	of 	birth 	control, 	then 	the 	jury 	could 	apportion 	the 	fault
appropriately—perhaps awarding Plaintiffs the costs of undergoing the second
sterilization procedure and the damages stemming from the failed procedure, but not
awarding them the costs of the pregnancy, birth, or raising the child. See UJI 13-2219

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NMRA (defining comparative negligence). 	In any event, we are confident that a
properly instructed jury will be able to appropriately analyze the issues of negligence
and causation in this case.
Disclosing to Plaintiff That She Was Still Fertile Did Not, as a Matter of Law,
Break the Causal Chain.
{13} 	As an alternative basis for the judgment as a matter of law, the district court
concluded that an independent intervening cause constituted a complete defense to
Plaintiffs’ claims. The court determined that “the chain of causation was interrupted
by [Defendant’s] relay of information to . . . Plaintiffs regarding the failed tubal
ligation” and that “Plaintiffs cannot recover damages because of the interruption of
the chain of causation.” We conclude that this determination was erroneous in light
of our Supreme Court’s opinion in Torres, 1999-NMSC-029, ¶ 18.
{14} 	In Torres, the Court determined that the doctrine of independent intervening
cause “uniformly does not apply to a plaintiff’s negligence.” 	Id. ¶ 23. 	The Court
reasoned that in cases where the defendant alleges that the plaintiff’s negligence
caused the plaintiff’s injury, reference to the doctrine “unduly emphasize[s] a
defendant’s attempt to shift fault to a plaintiff.” Id. ¶ 18.
{15} 	In the present case, the district court determined that Defendant’s disclosure that
the 	tubal 	ligation 	was 	unsuccessful 	broke 	the 	causal 	chain. 	However, 	this
determination constituted an implicit conclusion that it was Plaintiffs’ negligence in

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failing to change their behavior despite their knowledge of their continued fertility that
caused the ensuing pregnancy and birth, and indeed, that is what Defendant argued
below. According to Torres, this was an erroneous use of the doctrine of independent
intervening cause.
{16} 	This case, like Torres, “presents a paradigmatic instance of comparative
negligence and serves to illustrate why juries should be allowed to resolve the
questions involved on the basis of the jury instructions on proximate cause and
apportionment of fault.” Id. ¶ 25. Defendant himself appears to concede that he was
negligent in performing the sterilization procedure, and a reasonable jury could
conclude that this negligence had something to do with the resulting pregnancy. See
id. ¶ 23 (noting that “[a]ny harm which is in itself foreseeable, as to which the actor
has created or increased the recognizable risk, is always proximate, no matter how it
is brought about” (internal quotation marks and citation omitted)). The jury could also
conclude that when Defendant disclosed the failed sterilization to Plaintiffs, Plaintiffs’
failure to take reasonable steps to prevent pregnancy also contributed to the
conception of their fifth child. It was contrary to the law of causation for the district
court to conclude that Defendant’s disclosure interrupted and turned aside the
probable results of Defendant’s negligently performed surgery. See id. ¶ 12 (defining
independent intervening cause as “a cause which interrupts the natural sequence of

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events, turns aside their cause, prevents the natural and probable results of the original
act or omission, and produces a different result, that could not have been reasonably
foreseen” (internal quotation marks and citation omitted)). The extent of each party’s
responsibility for the pregnancy is for the jury to decide.
CONCLUSION
{17} 	For the foregoing reasons, we reverse the judgment of the district court
dismissing Plaintiffs’ claims and remand for a trial on the merits.
{18} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
ROBERT E. ROBLES, Judge