Edinburg Hosp. Authority v. Trevino

• Decision Date: 13 July 1995
• Docket Number: No. 13-93-278-CV,13-93-278-CV
• Citation: 904 S.W.2d 831
• Parties: EDINBURG HOSPITAL AUTHORITY, d/b/a Edinburg General Hospital, Appellant, v. Shirley TREVINO and Oscar Trevino, Appellees.
• Court: Texas Court of Appeals

Page 831

904 S.W.2d 831

EDINBURG HOSPITAL AUTHORITY, d/b/a Edinburg General Hospital, Appellant, v. Shirley TREVINO and Oscar Trevino, Appellees.

No. 13-93-278-CV.

Court of Appeals of Texas Corpus Christi.

July 13, 1995.

Rehearing Overruled Aug. 10, 1995.

Charles Sweetman, Sweetman & Wise, Brownsville, Frank Sabo, Sweetman & Wise, Harlingen, C. Dean Davis, Robert L. Hargett, Davis & Davis, Austin, for appellant.

John David Franz, McAllen, Preston Henrichson, Edinburg, for appellees.

Before SEERDEN, C.J., and DORSEY and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

DORSEY, Justice.

Shirley Trevino and her husband, Oscar Trevino, sued and recovered damages from Edinburg General Hospital for her negligent treatment at the hospital immediately prior to her delivery of their stillborn child. The principal issues presented are whether Shirley may recover for the emotional distress she suffered because of the loss of the child, whether Oscar may recover as a bystander to Shirley's injuries, and if so, whether his emotional distress from witnessing Shirley's suffering and the loss of their child is properly an element of his damages.

Shirley Trevino was admitted to Edinburg General on May 28, 1989, nine months pregnant. She had an uneventful pregnancy until her hospital admission when she came to the hospital complaining that her water broke the day before. After several hours in the hospital and administration of Pitocin, a drug to augment labor, she began to hemorrhage. She was taken to surgery; an emergency cesarean section was performed, but the baby was stillborn. Oscar was present with her that afternoon and evening until she was taken to surgery. He saw that his wife was hemorrhaging and was aware of the seriousness of her and the baby's condition when she was taken to surgery.

Shirley Trevino filed suit against the hospital and her attending physician, who settled before trial. Oscar intervened. Shirley claimed that appellant's negligent treatment of her during childbirth injured her and that her principal injury was the loss of her unborn child and accompanying emotional distress. Oscar claimed the negligent treatment of his wife which resulted in the death of their unborn child caused his emotional distress. The jury was charged on negligent acts of hospital employees involving use of tangible personal property. The jury found for the Trevinos, awarding each $750,000.

CAUSES OF ACTION

By its first and third points of error, the hospital argues that neither Shirley nor Oscar have a valid cause of action that forms the basis for their recovery and that the trial court erred in denying the hospital's motions for instructed verdict and judgment non obstante veredicto. Point of error six is closely related, in that appellant complains that the damages awarded to the Trevinos are not recoverable as a matter of law.

Appellant makes two arguments under these points of error. The first is that there should be no award for emotional distress caused by the loss of a fetus when the mother sues for medical negligence practiced upon her because there is no cause of action for the death of a fetus. The second attacks the propriety of the husband's cause of action as a bystander.

1. Shirley Trevino

There is no cause of action for the death of an unborn child under the Texas wrongful death or survival statues. Krishnan v. Sepulveda, 38 Tex.Sup.Ct.J. 806, 807, --- S.W.2d ---- (June 15, 1995); Witty v. American Gen. Capital Distrib., Inc., 727 S.W.2d 503 (Tex.1987). There can be no recovery to the parents for the loss of a fetus as a person or as a chattel. Id. For a cause of action to exist for prenatal injuries, the child must be born alive. Yandell v. Delgado, 471 S.W.2d 569, 570 (Tex.1971) (per curiam). If the child dies after a live birth as a result of the prenatal injuries, a right of action exists under the wrongful death and survival statutes. Leal v. C.C. Pitts Sand & Gravel, Inc., 419 S.W.2d 820, 821-22 (Tex.1967).

The Texas Supreme Court reaffirmed the rule of Witty in Pietila v. Crites, 851 S.W.2d 185, 186 (Tex.1993), holding that there is no cause of action for the negligent treatment of the fetus that results in its death and the emotional injury to its parents. However, in Pietila the court stated, "[b]ecause the Criteses did not claim that either physician improperly treated any of [the mother's] injuries, their claim fails as a matter of law." Id. at 186 (emphasis added). Most recently in Krishnan, 38 Tex.Sup.Ct.J. at 808, --- S.W.2d at ----, the court allowed the mother to recover mental anguish damages for injury to her own body in connection with a stillbirth.

That is the situation here. The plaintiff, Shirley Trevino, sued for her negligent treatment that resulted in injuries to her and not for the negligent treatment of her child resulting in its injuries. The evidence is that she was administered the drug Pitocin in excessive doses and for too long a time, which caused her to hemorrhage. Dr. Barnes, the plaintiffs' expert, testified that the initial dose was too high and within a few minutes after the Pitocin was administered, Trevino had a sustained contraction which was evidence of placental abruption. A placental abruption is a blood clot that forms between the uterine wall and the placenta making the uterus and abdominal wall very tender. An abruption can cause the death of the baby by separating the umbilical cord and may cause the mother's death by causing uncontrollable bleeding. We hold Shirley Trevino has a cause of action for the medical negligence practiced upon her.

Appellant hospital next complains that the damages awarded Shirley were for mental anguish and that her emotional distress was primarily over the loss of her child. The hospital argues, as there is no cause of action for the death of an unborn child, to allow damages for emotional distress because of the fetus's death is to reach through the back door what one cannot reach through the front. This argument confuses mental anguish as an element of damage with the notion of mental anguish as a separate claim. See Crites, 851 S.W.2d at 186. Mental anguish is a recognized element of damage caused by breach of some duty, in this case the duty of a hospital to treat a patient in conformity with the recognized standards for obstetrical care. See Boyles v. Kerr, 855 S.W.2d 593, 596-97 (Tex.1993).

A tortfeasor is responsible for all damages that are proximately caused by the injury inflicted. See Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988); Commonwealth of Mass. v. Davis, 140 Tex. 398, 168 S.W.2d 216, 222 (1942). Mental anguish includes mental sensations of pain resulting from such emotions as grief, severe disappointment, indignation, wounded pride, shame, despair or public humiliation. Trevino v. Southwestern Bell Tel. Co., 582 S.W.2d 582, 582, 584 (Tex.Civ.App.--Corpus Christi 1979, no writ). Ordinarily, a plaintiff may recover all damages which naturally flow from the tortious act and is limited only to that injury which is "the natural and probable consequence of the wrongful act ..." Commonwealth of Mass., 168 S.W.2d at 222. "All that is required is that the injury be of such a general character as might reasonably be anticipated and that the injured party be so situated with relation to the wrongful act that injury might reasonably have been foreseen." Brown, 764 S.W.2d at 224.

In this case, negligence during the delivery of a child which results in death of that child foreseeably causes mental anguish to the mother. That mental anguish includes the grief for loss of the child. Shirley is entitled to recover for the mental distress that was a natural consequence of the hospital's negligence. See Krishnan, 38 Tex.Sup.Ct.J. at 808, --- S.W.2d at ----; Witty, 727 S.W.2d at 506.

2. Oscar Trevino

Oscar Trevino's cause of action requires a different analysis. The duty of the hospital to Shirley was to use reasonable care under the circumstances in its treatment of her. Oscar predicates his theory of recovery on his status of bystander to Shirley's injuries. Texas recognizes a cause of action for mental distress for injuries to another only in limited circumstances. In Freeman v. City of Pasadena, 744 S.W.2d 923, 924 (Tex.1988), the Texas Supreme Court adopted the analysis and criteria developed by the California Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 88, 441 P.2d 912, 928 (1968), in examining whether a bystander has a cause of action for witnessing injuries caused another. A trial court considers three factors in determining whether the defendant should reasonably foresee the emotional injury to the bystander plaintiff: 1) whether the plaintiff was located near the scene of the accident; 2) whether the plaintiff's emotional shock results from the direct emotional impact upon the plaintiff from the sensory and contemporaneous observation of the accident; and 3) whether the plaintiff and the victim are closely related. Freeman, 744 S.W.2d at 924.

Oscar was in the hospital room with his wife from her admission at 2:30 p.m. until she was taken to emergency surgery around 8:30 that evening. Oscar, his mother, and Shirley's mother took turns staying with her over the six hour period. Oscar witnessed his wife's hemorrhaging after Pitocin was administered and the nurse's shocked reaction to the hemorrhaging. He described seeing "a bunch of blood and globs, blood globs. I don't know what it was. It looked like meat. I thought it was the baby. It was coming out and falling into the [bed] pan." Shirley's doctor came into the room and examined her. When he finished his examination, there was more blood and more blood clots. Oscar testified that he thought his wife was going to die. As they took her to surgery, he said he feared that he would not see his wife or the baby again. He saw the baby before Shirley regained consciousness from the anesthesia and then saw Shirley in the recovery...