Opinions Are Like…: Thoughts on Pressil v. Gibson
Opinions Are Like… is a new blog series by Houston legal malpractice lawyers Lance and David Kassab in which they will discuss recent Texas opinions relating to legal malpractice. The first opinion is the recent appeals case Pressir V. Gibson. The Texas Fourteenth Court of Appeals says legal malpractice case would have been unsuccessful because a man has no remedy against a fertility clinic who knowingly inseminates girlfriend with his sperm using his own insurance and without his knowledge and consent.
By Lance Christopher Kassab and David Eric Kassab
Today is great day for fertility clinics worried about liability for assisting women who fraudulently inseminate themselves with stolen sperm. Recently, a panel of the Fourteenth Court of Appeals held that Joseph Pressil could not recover in his legal malpractice case against his former attorneys because he was never entitled to any damages from a fertility clinic in the underlying case who knowingly inseminated his former girlfriend with his sperm without his knowledge and consent.
By way of background, Pressil hired Jason Gibson and the Gibson Law Firm to represent him in a lawsuit against a fertility clinic after Pressil discovered that his ex-girlfriend had stolen his sperm. Unbeknownst to Pressil, the clinic inseminated his girlfriend which resulted in the birth of his two healthy children. The clinic had policies and procedures requiring the consent of both partners. The clinic also had policies requiring insurance cards from both partners to be verified prior to the procedure. Further, the Texas Family Code required the clinic to obtain written consent from a donor like Pressil who was to be a prospective father. Despite these established procedures and statutes, the clinic impregnated Pressil’s ex-girlfriend without his knowledge and consent and used his own insurance to pay for the procedure.
Gibson filed suit against the clinic, but the lawsuit was dismissed because Gibson failed to file an expert report as required by statute. Mr. Pressil hired Lance Christopher Kassab and David Eric Kassab of The Kassab Law Firm to bring the malpractice case against Gibson. In the malpractice case, Pressil alleged that Gibson was negligent in failing to adequately handle his underlying case against the fertility clinic. Gibson filed summary judgment arguing that Pressil’s malpractice claims failed as a matter of law because no matter how negligent Gibson was in failing to follow the statutory requirement, the case against the clinic would have been unsuccessful. Specifically, Gibson, only after being sued, alleged that Texas does not recognize a cause of action for the birth of a healthy child. The trial court agreed and granted summary judgment in favor of Gibson.
The Kassab Law Firm appealed the decision to the Fourteenth Court of Appeals. Their argument was that but for Gibson’s negligence, “Pressil’s underlying claims could have succeeded and Pressil could have recovered, at minimum, the cost of the pregnancy.” Thus, The Kassab Law Firm argued that the trial court erred in dismissing Pressil’s malpractice case on the grounds that no damages could be recovered in the underlying case because at least medical expenses would have been recoverable under Texas law.
A panel of the Fourteenth Court of Appeals consisting of Justices Christopher, Brown and Wise affirmed the decision of the trial court and denied Pressil any relief. The Court disagreed with Gibson (and the trial court) and stated that “Texas recognizes the medical malpractice claims many courts describe as ‘wrongful pregnancy’ or ‘wrongful conception’ actions.” The Court also disagreed with Gibson (and the trial court) and held that medical expenses were recoverable under Texas law for the birth of a healthy unplanned child. However, the Court inexplicably held that Pressil was not entitled to recover the medical expenses in this malpractice case because Gibson (negligently) did not seek these types of damages when he sued the fertility clinic in the original lawsuit. In essence, the Court permitted Gibson to rely on his own negligence of not initially seeking medical expenses in the underlying case to escape liability in the malpractice case. Such a holding is nonsensical.
As justification for its holding, the Court stated that Pressil could not have requested damages in the underlying case for the medical expenses associated with any medical procedure because “no medical procedure was performed on him.” This holding ignores the fact that the procedure was paid for by Pressil and the law that the “parents” – not just the mother – of a normal, healthy but unexpected child “may recover damages for their actual medical expenses incurred as a result of the failed procedure.” See Crawford v. Kirk, 929 S.W.2d 633, 637 (Tex. App. – Texarkana 1996, writ denied).
The Court’s recent opinion is unfortunate. Not only for Pressil, but for men all across Texas. Moreover, since the new pronouncement of the law arises out of a legal malpractice case, the Court’s opinion will be perceived as more lawyer protection as opposed to an extension of existing law. General social and public policy principles dictate that a man should choose whom to have children with and when. This decision should not be made by a fertility clinic only interested in profits. Nor should it be left to the unilateral decision of a man’s girlfriend. Pressil suffered damages as a result of the clinic’s malfeasance, yet the clinic was held immune from liability after stripping Pressil of his Constitutionally guaranteed decision to have children and whom to have children with. But, according to the Fourteenth Court of Appeals, this is apparently the law in Texas. If you don’t like it, contact your legislator.
 Tex. Fam. Code § 160.7031(b); Tex. Fam. Code § 160.704(a).
 See Cause No. 14-14-00731-CV: Joseph Pressil v. Jason Gibson, et al.; In the Fourteenth Court of Appeals, Houston (which may be accessed here http://www.search.txcourts.gov/Case.aspx?cn=14-14-00731-CV&coa=coa14), at Opinion, p. 8.
 Opinion, p. 10-11.
 Opinion, p. 10.
Lance Christopher Kassab and David Eric Kassab are Houston-based plaintiff’s attorneys who concentrate solely on legal malpractice and legal ethics cases. If you believe you have suffered damages as a result of your lawyer’s wrongdoing, please contact the Kassab Law Firm for a consultation.