Krishnan v. Sepulveda

• Decision Date: 15 June 1995
• Docket Number: No. D-3173,D-3173
• Parties: 38 Tex. Sup. Ct. J. 806 Elizabeth G. KRISHNAN, M.D., Petitioner, v. Humberto SEPULVEDA, Jr. and Olga Sepulveda, Respondents.
• Court: Texas Supreme Court

Page 478

916 S.W.2d 478

38 Tex. Sup. Ct. J. 806

Elizabeth G. KRISHNAN, M.D., Petitioner, v. Humberto SEPULVEDA, Jr. and Olga Sepulveda, Respondents.

No. D-3173.

Supreme Court of Texas.

Argued Oct. 12, 1993.

Decided June 15, 1995.

Gurwitz, Mr. Gary, Atlas & Hall, McAllen, Leach, Mr. Rex N., Atlas & Hall, McAllen, Powell, Ms. Lisa, Atlas & Hall, McAllen, for petitioner.

Nagle, Mr. David J., David Nagle & Associates, Austin, for respondents.

HIGHTOWER, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HECHT, GAMMAGE, ENOCH, SPECTOR and OWEN, Justices, join.

In this cause, we consider whether parents may recover damages from the birth of a stillborn fetus resulting from injury to the mother caused by the allegedly negligent diagnosis, prenatal supervision and treatment of the mother by her physician. Olga and Humberto Sepulveda sued Dr. Elizabeth G. Krishnan alleging that her negligence in providing diagnosis, prenatal supervision and treatment of Olga caused their child to be delivered stillborn. The trial court sustained Dr. Krishnan's special exception and dismissed the case. The court of appeals reversed and remanded. 839 S.W.2d 132. We affirm the judgment of the court of appeals.

In their original petition, the Sepulvedas alleged that Olga Sepulveda sought prenatal care and treatment, and delivery of her child from Dr. Krishnan. During the course of her pregnancy, while under Dr. Krishnan's care, Olga developed a condition known as preeclampsia, which generally manifests itself as elevated blood pressure and edema. The Sepulvedas alleged that Dr. Krishnan

was negligent in that she failed to exercise the care of an ordinary prudent obstetrician by providing the necessary diagnosis, prenatal supervision, and prompt treatment of the Plaintiff's preeclampsia.

5. As a direct and proximate result of the Defendant's negligence, Plaintiffs' daughter, Patricia Sepulveda, died, and Plaintiffs have been caused to suffer severe mental pain, anguish, grief, and sorrow. Additionally, Plaintiffs have been caused to suffer the loss of society, companionship, and affection of their daughter, Patricia Sepulveda, deceased. Plaintiffs have also incurred expenses for funeral and burial for Patricia reasonably suitable to her station in life.

Dr. Krishnan specially excepted to, among other things, the Sepulvedas' allegation that they suffered mental anguish, loss of society, companionship, and affection from the death of their daughter because "such damages are not recognized under Texas law in the death of an unborn fetus as in this case." Subsequently, the trial court sustained Dr. Krishnan's special exception that the Sepulvedas' damages are not recognized under Texas law for the death of an unborn fetus and dismissed the case with prejudice. ¹ The court of appeals reversed and remanded, concluding that the Sepulvedas' original petition alleged a common law cause of action for Olga's mental anguish suffered as a result of the loss of her fetus as a part of her own body, and that Olga's damages for loss of society and companionship are not recoverable in connection with the loss of the fetus. In addition, the court concluded the Sepulvedas' claim for funeral and burial expenses for the loss of the fetus should not have been dismissed because Dr. Krishnan did not specially except to the claim. Moreover, the court concluded that funeral expenses for the loss of a fetus are considered damages incurred by Olga as a direct result of her injury.

I.

Dr. Krishnan argues that no cause of action exists for Olga's mental anguish suffered as a result of the loss of her fetus which was caused by Dr. Krishnan's alleged negligent diagnosis, prenatal supervision and treatment of Olga. We disagree.

"[T]here is no wrongful death or survival cause of action for the death of a fetus." Pietila v. Crites, 851 S.W.2d 185, 187 (Tex.1993); Blackman v. Langford, 795 S.W.2d 742, 743 (Tex.1990); Tarrant County Hosp. Dist. v. Lobdell, 726 S.W.2d 23, 23 (Tex.1987); Witty v. American Gen. Capital Distrib., Inc., 727 S.W.2d 503, 506 (Tex.1987). See Tex.Civ.Prac. & Rem.Code §§ 71.002, 71.021. There is also no negligence cause of action arising out of the treatment or injury of a fetus. Pietila, 851 S.W.2d at 186-87. However, the Sepulvedas' cause of action is not precluded by Pietila v. Crites. The Sepulvedas alleged something entirely different as the basis for their claim--that Dr. Krishnan was negligent in caring for and treating Olga, not the fetus. This is precisely the distinction in Pietila:

[A]fter opportunity to amend, the Crites failed to allege there was negligent treatment of Jill Crites causing physical injury or mental anguish damages to her.... [id. at 186 n. 2] Because the Criteses did not claim that either physician improperly treated any of Jill's injuries, their claim fails as a matter of law.... Since the Criteses complain that their harm arose out of the doctors' negligent treatment of their unborn child, not of Jill, they are precluded from recovery as a matter of law....

Id. at 186-87. See Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 44-45 (Tex.App.--Houston [1st Dist.] 1993, no writ) ("[T]he Wheelers stated a cause of action for emotional distress damages arising from the defendant's allegedly negligent treatment of Mrs. Wheeler."). Although the Sepulvedas' cause of action is not precluded by Pietila, this court has not addressed directly 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 her physician's allegedly negligent treatment of the mother.

In Western Union Tel. Co. v. Cooper, 71 Tex. 507, 9 S.W. 598 (1888), we held that a woman could not recover mental anguish damages occasioned by the stillbirth of her child from a telegraph company whose employee failed to timely deliver a message to the woman's physician that she was in labor and needed his assistance. We stated:

We do not think the death of a child before birth, and the grief or sorrow occasioned thereby, can be an element of damages in this character of suit. If it is made to appear from testimony that Mrs. Cooper suffered more physical pain, mental anxiety, and alarm, on account of her own condition, than she would have done if Dr. Keating had been in attendance upon her, and the failure to secure his services is shown to be due to the want of proper care on the part of the defendant's servant, whose duty it was to deliver the message, a fair and reasonable compensation should be allowed for such increased pain and mental suffering; but the death of the child, the bereavement of the parents, and their grief for its loss cannot be considered as an element of damages. Such damages are too remote; they are the result of a secondary cause, and ought not to be allowed to enter into a verdict. This is not an action under the statute by the parents for the death of a child, and if it were, injury to the feelings of the parents could not be a basis of recovery by them.

Cooper, 9 S.W. at 599-600 (emphasis added). The facts of this case are substantially different from the facts in Cooper. Cooper specifically noted that damages for the mental anguish caused by the stillbirth were too remote when it appeared that the stillbirth resulted from a "secondary cause"--the failure of a telegraph company to timely deliver a message to the woman's physician that she was in labor and needed his assistance. Here, the stillbirth resulted directly from Dr. Krishnan's allegedly negligent diagnosis, prenatal supervision and negligent treatment of Olga. Accordingly, we conclude that Cooper is distinguishable. However, to the extent that Cooper is not distinguishable and conflicts with this opinion, we overrule it.

II.

The overwhelming majority of states now permit some form of recovery for the loss of a fetus. For example, approximately ten states and the District of Columbia recognize a common law cause of action for mental anguish suffered as a result of the loss of a fetus. ² In addition, approximately thirty-six states and the District of Columbia ³ recognize a wrongful death cause of action for the loss of a viable fetus. ⁴ Most of these states characterize a viable fetus as a "person" or "minor child" under their wrongful death statutes. However, this court declines to overrule its prior opinions and continues to hold that "there is no wrongful death or survival cause of action for the death of a fetus." See Pietila v. Crites, 851 S.W.2d at 187; Blackman v. Langford, 795 S.W.2d at 743; Tarrant County Hosp. Dist. v. Lobdell, 726 S.W.2d at 23; Witty v. American Gen. Capital Distrib., Inc., 727 S.W.2d at 506. Furthermore, the Legislature has not amended the wrongful death and survival statutes to create a wrongful death or survival cause of action for loss of a fetus. See Tex.Civ.Prac. & Rem.Code §§ 71.002, 71.021. Such Legislative inaction suggests approval of our holdings that "there is no wrongful death or survival cause of action for the death of a fetus." See Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975).

On the other hand, Texas has authorized recovery of mental anguish damages in virtually all personal injury actions. See, e.g., Coates v. Whittington, 758 S.W.2d 749 (Tex.1988); Harris County Hosp. Dist. v. Estrada, 872 S.W.2d 759 (Tex.App.--Houston [1st Dist.] 1993, writ denied); Baylor Medical Plaza Services Corp. v. Kidd, 834 S.W.2d 69 (Tex.App.--Texarkana 1992, writ denied); Hammond v. Estate of Rimmer, 643 S.W.2d 222 (Tex.App.--Eastland 1982, writ ref'd n.r.e.); Dupree v. Blackmon, 481 S.W.2d 216 (Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e.); Hicks v. Ricardo, 834 S.W.2d 587 (Tex.App.--Houston [1st Dist.] 1992, no writ); McAllen Coca Cola Bottling Co., Inc v. Alvarez, 581 S.W.2d 201 (Tex.Civ.App.--Corpus Christi 1979, no writ). We see no rational basis for excluding recovery of mental...