Texas Appellate Court Holds OB’s Mistress’ Claim She Was Tricked Into Abortion Is A Medical Malpractice Claim

The Fourth Court of Appeals San Antonio, Texas (“Texas Appellate Court”) held in its Memorandum Opinion dated November 14, 2018 that the plaintiff’s claim that the defendant OB, who had a sexual relationship with her in 2009, had tricked her into having an abortion was a health care liability claim (HCLC) because the alleged pregnancy and abortion facts could support an HCLC, and thus her assault and intentional infliction of emotional distress claims based on the pregnancy and abortion facts are HCLCs.

The Underlying Facts

In 2009, shortly after the plaintiff began an intimate relationship with the defendant OB, she became pregnant with the defendant’s child. The plaintiff alleged that the defendant did not want the child, intentionally misinformed her about the health of her unborn child, performed medical tests and treatments on her, and eventually subjected her to an abortion.

The plaintiff alleged that in July 2009, after she told the defendant she was pregnant with his child, he told her he felt the baby was not healthy. The plaintiff alleged that the defendant intentionally misled her about the condition of her unborn child and falsely stated she had undergone a “missed abortion”: the defendant ordered medical tests to determine her pregnancy hormone levels, and despite the normal test results, he told her the unborn child was not healthy; the defendant administered injections and oral medications that he told her would improve her hormone levels, but he later admitted the injections and medications were intended to induce a miscarriage or abortion; the defendant convinced her to stop seeing her physician and entrust him with her medical care, which she did; and, the defendant performed an ultrasound on the plaintiff during which he told her that the baby no longer had a heartbeat and the pregnancy was no longer viable, but later admitted he turned off the sound and held the ultrasound wand to make it appear as if the baby had no heartbeat.

On the morning of August 28, 2009, the defendant took the plaintiff to a hospital, admitted her, performed an abortion, and then discharged her.

The plaintiff further alleged that in January 2012, the defendant violently pushed her onto a bed, pinned her down, and threatened her with violence; that in February 2012, the defendant held her in his vehicle for over five hours, smashed her head into the dashboard and the vehicle’s window, and again threatened her; and, in January 2014, the defendant screamed at her, slammed her head against the wall, hit her head, grabbed her by the face, yelled directly into her ears, and threatened her with violence.

Despite the alleged history of lies and violence between the plaintiff and the defendant, they were married in June 2016. The allegations stated above were made in divorce proceedings filed by the plaintiff against the defendant.

The defendant filed a motion to dismiss the claims, arguing that the claims were health care liability claims (HCLCs) and because the plaintiff did not serve the required expert report in Texas medical malpractice claims, the trial court was required to dismiss the claims with prejudice and award him reasonable attorney’s fees and costs of court. Without dismissing any of the claims, the trial court granted the motion to dismiss but denied the defendant’s attorney’s fees because “none of the claims alleged malpractice under the [Texas Medical Liability] Act.” The defendant appealed.

Texas Appellate Court Memorandum Opinion

The Texas Appellate Court stated that it is undisputed that the defendant is a physician, that the plaintiff supports her assault claim with facts pertaining to how the defendant diagnosed her pregnancy, treated her “missed abortion,” and performed medical tests and procedures on her, and that the plaintiff’s facts could support a claim that the defendant “depart[ed] from accepted standards [and] proximately caused [her] injury.”

The Texas Appellate Court stated that even though the plaintiff expressly states she is not alleging the defendant departed from accepted standards of care, her statement does not prevent her assault claim from being an HCLC: the plaintioff’s pregnancy and abortion facts could support an HCLC, and thus her assault and intentional infliction of emotional distress (IIED) claims based on the pregnancy and abortion facts are HCLCs.

The Texas Appellate Court agreed with the defendant’s argument that because the assault and IIED claims were HCLCs, and no expert report was served, the trial court was required to dismiss those claims and to award the defendant reasonable attorney’s fees and costs of court with respect to the claims based on the pregnancy and abortion facts. Therefore, the Texas Appellate Court remanded the case to the trial court to award reasonable attorney’s fees and costs of court incurred for those dismissed claims only.

Source Zertuche v. Wessels, No. 04-18-00429-CV.

If you or a family member may be the victim of medical malpractice in Texas or in another U.S. state, you should promptly consult with a Texas medical malpractice lawyer or a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your family member in a medical malpractice case, if appropriate.

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This entry was posted on Friday, December 28th, 2018 at 5:13 am. Both comments and pings are currently closed.

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