Fort Worth Osteopathic Hosp., Inc. v. Reese, 02-1061.

• Citation: 148 S.W.3d 94
• Decision Date: 27 August 2004
• Docket Number: No. 02-1061.,02-1061.
• Parties: FORT WORTH OSTEOPATHIC HOSPITAL, INC., d/b/a/ Osteopathic Medical Center of Texas, Craig Smith, D.O., and Reid Culton, D.O., Petitioners, v. Tara REESE and Donnie Reese, Individually and as Legal Representatives of the Estate of Clarence Cecil Reese, Respondents.
• Court: Supreme Court of Texas

148 S.W.3d 94

FORT WORTH OSTEOPATHIC HOSPITAL, INC., d/b/a/ Osteopathic Medical Center of Texas, Craig Smith, D.O., and Reid Culton, D.O., Petitioners, v. Tara REESE and Donnie Reese, Individually and as Legal Representatives of the Estate of Clarence Cecil Reese, Respondents.

No. 02-1061.

Supreme Court of Texas.

Argued October 8, 2003.

Decided August 27, 2004.

Rehearing Denied December 3, 2004.

Robert Neal McGehee, Brian J. Brandstetter, R. Bruce Moon, Gwinn & Roby, Craig M. Price, E. Earl Harcrow, Karen D. Williams, Haynes and Boone, LLP, Fort Worth, for Petitioner.

Bernard R. Suchocki, Scott A. Cummings, Jerry D. Bullard, Suchocki Bullard & Cummings, P.C., Fort Worth, for Respondent.

Chief Justice PHILLIPS delivered the opinion of the Court, in which Justice HECHT, Justice OWEN, Justice O'NEILL, Justice JEFFERSON, Justice WAINWRIGHT and Justice BRISTER joined.

We again address whether parents of a stillborn child can sue for statutory wrongful death and survival damages. This case presents the new issue of whether foreclosing this claim denies such plaintiffs and their unborn fetuses their constitutional right to equal protection of the laws. Because we conclude that the Legislature's decision to exclude such claims is not unconstitutional, we hold that the court of appeals erred in concluding that the Equal Protection Clause guarantees parents the right to bring a wrongful death or survival claim for a stillborn child. 87 S.W.3d 203, 205.

We also must decide whether the mother in this case raised a fact issue on her own claim for medical malpractice. We hold that the court of appeals correctly reversed the trial court's summary judgment, which prohibited the mother from maintaining her own cause of action for mental anguish. Id. We therefore reverse the judgment of the court of appeals in part, affirm in part, and remand to the trial court for further proceedings in accordance with this opinion.

I

Tara Reese went to the Fort Worth Osteopathic Medical Center emergency room in her seventh month of pregnancy, complaining of a racing pulse and dizziness. Doctors determined that she had a high pulse rate and high blood pressure and sent her to the labor and delivery room for further observation. On multiple occasions through the course of the evening, doctors monitored the heart tones of the fetus, which were often difficult to detect. The following morning the doctors confirmed that the fetus would be stillborn.

Tara and her husband, Donnie Reese, brought suit against Fort Worth Osteopathic Hospital, Osteopathic Family Medicine Clinics, Craig Smith, D.O., Roberta Beals, D.O., Reid Culton, D.O., and John Chapman, D.O. (health care providers), for negligence, gross negligence, and vicarious liability, seeking damages under the wrongful death and survival statutes and for personal injuries to Tara Reese. The trial court granted summary judgment in favor of all health care providers. The Reeses appealed all claims except that against Dr. Chapman. The court of appeals affirmed the summary judgment disposing of Donnie Reese's individual bystander claim, but reversed the remainder of the summary judgment, remanding the case to the trial court. The health care providers petitioned this Court for review, arguing that the court of appeals incorrectly held that the Reeses could assert wrongful death and survival actions and that Tara Reese could assert her own individual claim. Donnie Reese did not appeal the adverse judgment against his individual claim.

II

At common law, the death of a person who was physically injured by a defendant's negligence and died from those injuries had two important consequences with respect to legal recovery. First, the decedent's own tort action was extinguished. Second, third persons who suffered loss by the decedent's death, like children, parents or a spouse, lost their right to recover. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 127 at 945 (5th ed.1984). To ameliorate this harsh result, the Texas Legislature followed the lead of the British Parliament and other states and enacted the wrongful death and survival statutes in 1860 and 1895. See generally Wex S. Malone, The Genesis of Wrongful Death, 17 Stan. L.Rev. 1043 (1965) (detailing the passage of Lord Campbell's Act in England in 1840 and the creation of wrongful death causes of action by American courts and legislatures after 1838). Our wrongful death statute provides: "A person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfullness, or default." Tex. Civ. Prac. & Rem.Code § 71.002(b). Our survival statute provides: "A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury." Id. § 71.021(a).

In 1987, this Court held that these laws did not modify the common law rule against recovery with respect to a stillborn fetus. Witty v. Am. Gen. Capital Distrib., Inc., 727 S.W.2d 503, 506 (Tex.1987). We reasoned in Witty that the Legislature did not intend the words "individual" or "person" to include an unborn fetus. Id. at 504. Because of the common-law rule that legal rights were contingent upon live birth, we opined that the Legislature would have expressly created a wrongful death or survival cause of action for an unborn fetus if it intended to do so. Id. at 505. In so holding, we expressed no opinion about whether a fetus is a person in either the philosophical or scientific sense. Id. at 506.

Since 1987, this Court has repeatedly affirmed its decision in Witty. See Brown v. Shwarts, 968 S.W.2d 331, 335 (Tex.1998); Krishnan v. Sepulveda, 916 S.W.2d 478, 479-80 (Tex.1995); Pietila v. Crites, 851 S.W.2d 185, 187 (Tex.1993) (per curiam); Blackman v. Langford, 795 S.W.2d 742, 743 (Tex.1990) (per curiam); Tarrant County Hosp. Dist. v. Lobdell, 726 S.W.2d 23 (Tex.1987) (per curiam). In Brown, we held that a fetus, later born alive, was a "patient" within the meaning of TEX. REV. CIV. STAT. art. 4590i, § 1.03(a)(4), and that the statute of limitations for its wrongful death action began to run from the date of its prenatal injuries. The dissent argues that because this recognized "legal injury" to a fetus, it implicitly disaffirmed Witty. But the Court in Brown explained that its holding was indeed consistent with Witty. Brown held that a fetus achieves the status of a patient whose injuries are entitled to legal recognition only upon live birth, at which time that status then relates back to the date of injury for limitations purposes. Brown, 968 S.W.2d at 335. In Krishnan, we emphasized that the Legislature still had not amended the wrongful death and survival statutes to change our holding in Witty and create a wrongful death or survival cause of action for loss of a fetus. Krishnan, 916 S.W.2d at 481. Relying on the presumption that legislative inaction is legislative acquiescence, we again declined to recognize a statutory cause of action when the Legislature had not altered the statute. Id. at 481. We also declined to recognize a common law right to recover for the loss of companionship stemming from the death of a fetus. Id. at 482. None of these cases raised the question whether the law violated the Equal Protection Clause.

In 2003, the Legislature did grant the parents of a stillborn child a cause of action under the Wrongful Death Act. See Tex. Civ. Prac. & Rem.Code § 71.001(4) (defining "individual" under the wrongful death act to include "an unborn child at every stage of gestation from fertilization until birth"). However, the statute expressly does not apply to claims "for the death of an individual who is an unborn child that is brought against ... a physician or other health care provider licensed in this state, if the death directly or indirectly is caused by, associated with, arises out of, or relates to a lawful medical or health care practice or procedure of the physician or health care provider." See Tex. Civ. Prac. & Rem.Code § 71.003(c)(4). Additionally, the Legislature expressly stated that the statute operates prospectively only. See Act of June 2, 2003, 78th Leg., R.S., ch. 822, § 1.04, 2003 Tex. Gen. Laws 2607, 2608. The parties do not contend that this case involved anything other than a lawful medical procedure, so this case would not be covered even if the new statute were applicable.

The Reeses first urge that we recognize the repeated error of our jurisprudence in this area and overrule Witty. Because the Legislature has left the holding of Witty in place for all suits against health care providers arising after September 1, 2003, we decline to overrule Witty for those cases remaining in the court system that arose before that date.

Next, the Reeses correctly point out that none of our previous decisions on this issue address the equal protection arguments that were the basis for the court of appeals' decision. They urge us, as a matter of first impression, to hold that the wrongful death and survival statutes are unconstitutional on equal protection grounds.¹

The United States Constitution prohibits the government from denying persons equal protection of the laws. The Fourteenth Amendment provides that "No State shall ... deny to any person... the equal protection of the laws." U.S. CONST. amend XIV, § 1. The Texas Constitution contains a similar provision: "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services." TEX. CONST. art. 1, § 3. The parties do not argue any distinction between these two clauses, and we have said that both guarantees "require a similar multi-tiered analysis." Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 451...