Kristen Turley Gibson and Billy Gibson, as Next of Friends of K.G., a Minor v. Planned Parenthood Gulf Coast ( 2019 )

Affirmed and Memorandum Opinion filed July 30, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00498-CV
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
MEMORANDUM OPINION
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
1
Only K.G.’s claims are at issue in this appeal. For convenience, we refer to K.G.
simply as “appellant.”
2
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,
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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
2
Teva Pharmaceutical USA, Inc., and Teva Women’s Health, Inc., were alleged to be
engaged in the design, manufacture, marketing, and sale of the ParaGard IUD at issue. The trial
court dismissed the claims against them on summary judgment, and they are not at issue in this
appeal.
4
2018. Shortly before trial was to commence, the plaintiffs and Dr. Bharksuwan
reached a confidential settlement. All remaining claims were dismissed.
This appeal followed.
Standard of Review
When a party files both traditional and no-evidence motions for summary
judgment, generally we first review the trial court’s decision under the no-evidence
standard. See Tex. R. Civ. P. 166a(i); Merriman v. XTO Energy, Inc., 407 S.W.3d
244, 248 (Tex. 2013). If we determine that the no-evidence summary judgment
was properly granted, we do not reach arguments under the traditional motion for
summary judgment. See Merriman, 407 S.W.3d at 248; Ford Motor Co. v.
Ridgeway, 135 S.W.3d 598, 600 (Tex. 2004).
A trial court must grant a no-evidence motion for summary judgment if:
(1) the moving party asserts that there is no evidence of one or more specified
elements of a claim or defense on which the adverse party would have the burden
of proof at trial; and (2) the respondent produces no summary-judgment evidence
raising a genuine issue of material fact on each of the challenged elements. See
Tex. R. Civ. P. 166a(i). No-evidence points must, and may only, be sustained
when the record discloses one of the following situations: (a) a complete absence
of evidence of a vital fact; (b) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact; (c) the
evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the
evidence establishes conclusively the opposite of the vital fact. Jelinek v. Casas,
328 S.W.3d 526, 532 (Tex. 2010). “When the evidence offered to prove a vital
fact is so weak as to do no more than create a mere surmise or suspicion of its
existence, the evidence is no more than a scintilla and, in legal effect, is no
evidence.” Id.
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The challenged order states that the trial court dismissed appellant’s claims
on the specific ground that Texas does not recognize a claim for recovery of
damages based on negligence occurring pre-conception. The court did not rule on
the other grounds Planned Parenthood asserted in its summary-judgment motion.
In Cincinnati Life Insurance Co. v. Cates, 927 S.W.2d 623 (Tex. 1996), the
Supreme Court of Texas held that, in reviewing a summary judgment, appellate
courts should consider all summary-judgment grounds on which the trial court
ruled and the movant preserved error that are necessary for final disposition of the
appeal. Id. at 626. Additionally, in the interest of judicial economy, appellate
courts may consider other grounds that the movant preserved for appellate review
but the trial court did not make a basis of its summary judgment. See id.
Accordingly, if the specific ground on which the trial court granted summary
judgment is not necessary to final disposition, we need not address that ground
when, as here, we can affirm the judgment on alternative grounds the movant
preserved for review and briefed in our court even though the trial court did not
expressly rule on them. See id.; Paulsen v. Yarrell, 537 S.W.3d 224, 234-35 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied); cf. also Ward v. Lamar Univ., 484
S.W.3d 440, 452 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Analysis
Appellant presents two issues. First, she argues that the trial court erred in
granting summary judgment on the ground that Texas does not recognize a cause
of action for injuries allegedly resulting from conduct occurring prior to a
plaintiff’s conception. More particularly, appellant contends that Planned
Parenthood owed a legal duty to Kristin’s unconceived children to exercise
reasonable care in the placement of the IUD, including the duty to prevent “injury
from a premature birth caused by improper placement of an intrauterine device.”
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Second, appellant argues that she presented more than a scintilla of evidence in
response to Planned Parenthood’s no-evidence summary-judgment motion on the
breach and proximate cause elements.
We conclude that appellant offered no evidence to support her allegation that
any breach of duty by Planned Parenthood proximately caused the injuries alleged.
Our holding renders it unnecessary to address the duty and breach issues.
A. Applicable Law
In a medical negligence case, the plaintiff must prove that (1) the defendant
owed her a duty to act according to an applicable standard of care, (2) the
defendant breached the applicable standard of care, (3) she suffered an injury, and
(4) the defendant’s breach proximately caused her injury. See Bustamante v.
Ponte, 529 S.W.3d 447, 456 (Tex. 2017). The causation standard in medical
malpractice cases is one of “reasonable medical probability” that the plaintiff’s
injuries were caused by the negligence of the defendant. Gunn v. McCoy, 554
S.W.3d 645, 658 (Tex. 2018); Jelinek, 328 S.W.3d at 532-33. This standard
requires plaintiffs to prove that it is “more likely than not” that the ultimate harm
or condition resulted from the negligence at issue. Jelinek, 328 S.W.3d at 533.
Claimants must make the required showing through expert testimony. See id. at
533-34; Stamatis v. Methodist Willowbrook Hosp., No. 14-15-00829-CV, 2016
WL 4404502, at *4 (Tex. App.—Houston [14th Dist.] Aug. 18, 2016, no pet.)
(mem. op.); Kimbrell v. Mem’l Hermann Hosp. Sys., 407 S.W.3d 871, 879 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). “It is not enough for an expert simply
to opine that the defendant’s negligence caused the plaintiff’s injury.” Jelinek, 328
S.W.3d at 536. The expert must also explain, to a reasonable degree of medical
probability, how and why the negligence caused the injury. Id. The causal
connection between the defendant’s negligence and the injuries must be based on
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more than conjecture, speculation, or possibility. See Lenger v. Physician’s Gen.
Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970); Morrell v. Finke, 184 S.W.3d 257,
272 (Tex. App.—Fort Worth 2005, pet. denied). A defendant’s act or omission
need not be the sole cause of an injury, as long as it is a substantial factor in
bringing about the injury. Bustamante, 529 S.W.3d at 457.
Moreover, “when the evidence demonstrates that ‘there are other plausible
causes of the injury or condition that could be negated, the plaintiff must offer
evidence excluding those causes with reasonable certainty.’” Bustamante, 529
S.W.3d at 456 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
720 (Tex. 1997)). In Jelinek, the Supreme Court held that when several likely
causes for an injury are present, an expert must explain why one cause and not the
other was the proximate cause of the injury. See Jelinek, 328 S.W.3d at 529.
B. Application
In the no-evidence portion of its summary-judgment motion, Planned
Parenthood asserted that no evidence established that any negligence on its part
proximately caused appellant’s alleged injuries. In her response, appellant asserted
that her premature birth was proximately caused (1) by Planned Parenthood’s
negligence in causing the IUD to perforate Kristin’s uterus during placement, and
(2) by retention of the IUD during Kristin’s pregnancy.3 In support, appellant cited
to deposition excerpts of Dr. Wheeler and Kristin.
Because appellant argued that her premature birth had two contributing
causes, we first identify the conduct relevant to our causation analysis. Dr.
Wheeler did not opine that the IUD was retained in Kristin’s uterus because of
3
Appellant also argued that retention of the IUD caused Kristin to suffer an infection.
This is an alleged injury to Kristin and is not before us. The summary-judgment response did not
assert or cite evidence that appellant suffered an infection.
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Planned Parenthood’s negligence. When asked if he had any criticisms of Planned
Parenthood in referring Kristin to a higher level of care in April 2012 following an
unsuccessful attempt to remove the IUD, Dr. Wheeler said he had none, and that
Planned Parenthood’s referral “was the right thing to do.” Kristin did not return to
Planned Parenthood but immediately saw her doctor, who did not detect the IUD’s
presence and did not remove it at that time. Dr. Wheeler believed that when
Kristin saw Dr. Bharksuwan on April 18, 2012, the IUD was not “properly placed”
but was either in the uterus wall or traversed the wall and protruded into the
peritoneal cavity. Dr. Bharksuwan later discovered and removed the IUD after
delivering appellant in July 2012. At the time of his deposition, Dr. Wheeler had
not formed an opinion faulting Planned Parenthood for the fact that the IUD was
not removed in April 2012. Appellant attached no supplemental opinions from Dr.
Wheeler concluding that Planned Parenthood breached the applicable standard of
care in April 2012.
Dr. Wheeler expressed an opinion, however, as to whether Planned
Parenthood’s conduct in December 2010 breached the standard of care. According
to Dr. Wheeler, Planned Parenthood breached the standard of care by perforating
Kristin’s uterus when placing the IUD. Because Planned Parenthood’s conduct in
December 2010 is the only conduct about which Dr. Wheeler opined that Planned
Parenthood breached the standard of care, we must determine whether appellant
presented a scintilla of evidence that Planned Parenthood’s alleged negligence in
perforating Kristin’s uterus while placing the IUD proximately caused appellant’s
premature birth.4
We have reviewed all the evidence appellant attached to her summary-
4
We do not presume that appellant has a valid cause of action against Planned
Parenthood based on its alleged negligent act occurring before appellant was conceived.
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judgment response and find no evidence that Planned Parenthood’s breach of the
standard of care in December 2010 proximately caused appellant’s premature birth.
In the deposition testimony attached to appellant’s response, Dr. Wheeler does not
opine that to a reasonable medical probability Planned Parenthood’s December
2010 conduct caused appellant’s premature birth. See Gunn, 554 S.W.3d at 658.
Additionally, appellant attached the deposition of Dr. Bharksuwan, who opined
that appellant’s premature birth was caused by something else: Kristin’s smoking
during pregnancy. Dr. Wheeler acknowledged that Kristin smoked ten cigarettes a
day during her pregnancy, but he did not make any effort to explain based on
scientific principles why Kristin’s smoking, as another plausible cause of
appellant’s premature birth, could be excluded with reasonable certainty. See
Bustamante, 529 S.W.3d at 456; Jelinek, 328 S.W.3d at 536.
Appellant also attached Dr. Wheeler’s expert report to her summary-
judgment response. Planned Parenthood objected to the report on several grounds
and the trial court apparently did not rule on the objections. Presuming we can
consider the report, it too does not explain to a reasonable degree of medical
probability how and why Planned Parenthood’s negligence caused appellant’s
premature delivery. See Jelinek, 328 S.W.3d at 536. The report states merely that
but for Planned Parenthood’s negligence, “Mrs. Gibson would not have conceived”
and “the resulting pregnancy would not have delivered prematurely.” This is the
extent of the report’s reference to causation relating to Planned Parenthood’s
asserted breaches of the standard of care, but the statement is conclusory and
constitutes no evidence. See Windrum v. Kareh, No. 17-0328, —S.W.3d—, 2019
WL 321925, at *3 (Tex. Jan. 25, 2019); see also Bustamante, 529 S.W.3d at 462.
Bare or baseless opinions cannot support a judgment, even if admitted without
objection. See Windrum, 2019 WL 321925, at *3; Gunn, 554 S.W.3d at 662; City
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of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). In short, appellant
presented no evidence that Planned Parenthood’s negligence in December 2010
proximately caused appellant’s premature birth.
Appellant also argued in her summary-judgment response that the IUD was
less effective because it perforated Kristin’s uterus and that Kristin became
pregnant with appellant as a result. Appellant argues similarly on appeal, though it
is not clear whether appellant is contending that Planned Parenthood’s negligence
in perforating Kristin’s uterus with the IUD caused appellant injury by the fact of
her conception. Conception is not an injury to the conceived. There exists no
cause of action in Texas for wrongful life. Nelson v. Krusen, 678 S.W.2d 918, 925
(Tex. 1984). Even so, the summary-judgment evidence presented contains no
expert testimony establishing that, to a reasonable medical probability, Planned
Parenthood’s alleged negligence in placing the IUD and perforating Kristin’s
uterus proximately caused appellant’s conception.
We overrule appellant’s second issue. Due to our disposition, we need not
address her first issue.
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Wise, Jewell, and Hassan.
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