Edinburg Hosp. Authority v. Trevino

Citation941 S.W.2d 76
Decision Date18 April 1997
Docket NumberNo. 95-0939,95-0939
Parties40 Tex. Sup. Ct. J. 313 EDINBURG HOSPITAL AUTHORITY d/b/a Edinburg General Hospital, Petitioner, v. Shirley TREVINO and Oscar Trevino, Respondents.
CourtSupreme Court of Texas

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941 S.W.2d 76
40 Tex. Sup. Ct. J. 313
EDINBURG HOSPITAL AUTHORITY d/b/a Edinburg General Hospital,
Shirley TREVINO and Oscar Trevino, Respondents.
No. 95-0939.
Supreme Court of Texas.
Argued April 18, 1996.
Decided Feb. 6, 1997.
Rehearing Overruled April 18, 1997.

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Kenda B. Dalrymple, Marian Jeu, C. Dean Davis, Austin, for petitioner.

Preston Henrichson, David P. Kallus, Edinburg, John David Franz, McAllen, Richard D. Schell, E.R. Fleuriet, Harlingen, for respondents.

SPECTOR, Justice, delivered the opinion for the Court, in which PHILLIPS, Chief Justice, and HECHT, CORNYN, ENOCH, OWEN and BAKER, Justices, joined, in Parts I and IV of which GONZALEZ, Justice, joined, and in Parts I, III, and IV of which ABBOTT, Justice, joined.

In this medical malpractice case we consider whether a mother and father may recover mental anguish damages resulting from the delivery of a stillborn fetus. The jury found that Edinburg Hospital Authority, d/b/a Edinburg General Hospital, and its employees had negligently caused the mother and father mental anguish resulting from the loss of the fetus, and the trial court awarded damages to both. The court of appeals affirmed. 904 S.W.2d 831. We hold that the mother has

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stated a negligence cause of action but failed to present adequate proof of mental anguish damages under this Court's decision in Krishnan v. Sepulveda, 916 S.W.2d 478 (Tex.1995). We hold also that neither the mother nor the father is entitled to mental anguish damages as a bystander to the loss of the fetus. Accordingly, we reverse the judgment of the court of appeals, remanding in part and rendering in part.


Shirley Mora (formerly Trevino) and Oscar Trevino were expecting their first child in the spring of 1989. Mora's water broke, indicating the start of labor, on May 27, 1989. For unexplained reasons, Mora waited a day before admitting herself to Edinburg General Hospital. Dr. Carl Gruener was the attending physician for the delivery.

After Mora had been in the hospital several hours, Dr. Gruener determined that labor was progressing too slowly and ordered the administration of Pitocin, a drug used to augment labor. Mora soon began to hemorrhage, and Dr. Gruener performed an emergency caesarean section. The fetus was stillborn. Trevino was with his wife in the hospital up until the time she was taken into surgery, but he did not witness the actual delivery.

Mora sued Dr. Gruener and the hospital, alleging that their negligent treatment caused the stillbirth. Mora contended that the doctor and the hospital negligently monitored the administration of the Pitocin and the fetal heartbeat equipment. Trevino intervened, claiming that he suffered mental anguish as a bystander witnessing the events leading up to the stillbirth. Dr. Gruener eventually settled with both Mora and Trevino before the trial.

The jury found that the hospital employees' negligence in the use of the hospital's tangible personal property caused Mora's and Trevino's mental anguish as a result of the stillbirth. The jury awarded Mora and Trevino $750,000 each in damages. The trial court reduced the damages to $250,000 each under the Texas Tort Claims Act. See TEX.CIV.PRAC. & REM.CODE § 101.023(c).


Initially, we must determine if Mora asserted a valid cause of action against the hospital and its employees. Because the hospital is a governmental unit, sovereign immunity prevents liability unless Mora can show property damage, personal injury, or death "caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." TEX.CIV.PRAC. & REM.CODE § 101.021(2).

In her first amended petition, Mora pleaded two causes of action in support of her mental anguish damages. First, she alleged that the hospital's treatment of her resulted in the loss of her fetus and constituted negligent infliction of mental anguish. Second, Mora alleged that she "was a bystander at the death of her infant," and that witnessing this event caused her great mental anguish. She alleged no other claims against the hospital or its employees in the trial court.

No cause of action for wrongful death existed at common law; the right to sue for wrongful death is "purely a creature of statute." Witty v. American Gen. Capital Distribs., Inc., 727 S.W.2d 503, 504 (Tex.1987). In Witty, we explained that the Texas Wrongful Death Act precludes recovery for the loss of a fetus when there has been no live birth. Id. This holding was based on the language of the Act viewed in light of the longstanding common law rule that the rights of a fetus were contingent on live birth. Id. at 505. Similarly, there is no survival cause of action for the loss of a fetus or for negligent medical treatment of a fetus not born alive. Id. at 506; see Pietila v. Crites, 851 S.W.2d 185, 186 (Tex.1993); Yandell v. Delgado, 471 S.W.2d 569, 570 (Tex.1971). Without these causes of action, parents "are precluded from recovering damages for their loss of society, companionship, and affection suffered as a result of the loss of the fetus." Krishnan, 916 S.W.2d at 482.

In Krishnan, this Court addressed "whether a mother may recover mental anguish damages suffered because of the loss of her fetus resulting from an injury to the mother which was caused by the physician's allegedly negligent treatment of the mother." Id. at

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840 (emphasis added). We held that, because mental anguish damages are available in personal injury actions generally, they are recoverable when suffered as a result of a negligently inflicted injury to the woman "which includes the loss of her fetus." Id. at 481-82. Because Mora pleaded that she suffered a personal injury including the loss of her fetus resulting from a breach of a legal duty owed to her, she has stated a valid cause of action.

Although Mora has a negligence claim against the hospital for the personal injury she sustained in losing the fetus, she does not have a viable cause of action as a bystander for the loss of her fetus. We adopted the bystander cause of action in Texas based on guidelines set forth in a California case. See Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), construed in Freeman v. City of Pasadena, 744 S.W.2d 923, 923 (Tex.1988). As we stated in Boyles v. Kerr, "[b]efore a bystander may recover, he or she must establish that the defendant has negligently inflicted serious or fatal injuries on the primary victim." 855 S.W.2d 593, 598 (Tex.1993). The hospital could not be held liable for a negligent injury to Mora's fetus because, under established law, it does not owe a duty to a fetus that is not born alive. See Krishnan, 916 S.W.2d at 479; Yandell, 471 S.W.2d at 570. Additionally, Mora cannot be a bystander to her own personal injury. The hospital thus cannot be held liable to Mora under a bystander cause of action. Mora's only viable cause of action must be for the hospital's negligent treatment that resulted in personal injury to her.

At trial, Mora sought to prove mental anguish damages in part by presenting evidence that she had made preparations in expectation of the arrival of her baby: she had set aside a room in her home for the baby and purchased furniture for the room. She also testified that the loss of the fetus "still hurts [her] like it was yesterday," that she carries a clipping of the funeral service with her, and that her marriage deteriorated after the loss of the fetus. This evidence relates to the grief that Mora felt over the loss of the fetus as a separate individual and not as part of her own body. Krishnan and our decision today clarify that a woman can recover mental anguish damages resulting from negligent treatment that causes the loss of a fetus as part of the woman's body. Mora did not have the guidance provided by Boyles and Krishnan in this area of law, since both opinions were released after the trial in this case had occurred. This Court has broad discretion to remand for a new trial in the interest of justice when a party may have proceeded under the wrong legal theory. See Boyles, 855 S.W.2d at 603; American Title Ins. Co. v. Byrd, 384 S.W.2d 683 (Tex.1964). We therefore reverse the judgment of the court of appeals as to Mora and remand this part of the cause to the trial court for a new trial under the cause of action we recognized in Krishnan. 1


We next determine whether Trevino may recover mental anguish damages against the hospital. In his petition in intervention, Trevino alleges that he suffered severe mental anguish after witnessing the negligent treatment of his wife, Shirley Mora. Under Krishnan, the hospital owes no legal duty to Trevino to provide competent medical care to Mora or the fetus. 916 S.W.2d at 482; see also Cathey v. Booth, 900 S.W.2d 339, 342 (Tex.1995). Trevino instead argues that he should be permitted to recover mental anguish damages against the hospital as a bystander to Mora's treatment. 2

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Trevino's bystander cause of action alleges that he was injured because he witnessed the nurses negligently administering the Pitocin and failing to timely administer anesthesia to Mora. He also witnessed the "failure of the nursing personnel to recognize signs of placental abruption as indicated on the contraction monitor." Trevino also saw Mora bleed heavily after some contractions and testified that he noticed blood clots in her bedpan that he thought were the fetus. Additionally, Trevino alleges mental anguish as a result of waiting for his wife to undergo an emergency caesarean section that resulted in the stillbirth. Trevino was not present for the stillbirth, however, and learned of it from a doctor only after the surgery.

A bystander may recover mental anguish damages under Texas law after witnessing a close relative suffer a traumatic injury because of a defendant's negligent action. See...

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