Parvin v. Dean

• Decision Date: 18 November 1999
• Citation: 7 S.W.3d 264
• Parties: (Tex.App.-Fort Worth 1999) RICHARD PARVIN APPELLANT V. JOHN THOMAS DEAN and DORI ANNA DEAN, INDIVIDUALLY and AS LEGAL REPRESENTATIVES OF THE ESTATE OF CHERI ANNETTE DEAN APPELLEES NO. 2-99-135-CV
• Court: Texas Court of Appeals

Page 264

7 S.W.3d 264 (Tex.App.-Fort Worth 1999)

RICHARD PARVINAPPELLANT

V.

JOHN THOMAS DEAN and DORI

ANNA DEAN, INDIVIDUALLY and AS

LEGAL REPRESENTATIVES OF THE

ESTATE OF CHERI ANNETTE DEAN APPELLEES

NO. 2-99-135-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

November 18, 1999

FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before the court en banc.^*

O P I N I O N

Dixon W. Holman, Justice.

This appeal is from a summary judgment with which the trial court has upheld Appellees' contentions that, upon the facts of this case, (1) the wrongful death and survival statutes, as construed by the courts of this state, are unconstitutional and (2) the established case law of Texas inflicts upon Appellee John Thomas Dean gender discrimination that violates the equal protections provisions of the federal and state constitutions. The parties have stipulated all of the material facts and on appeal present only issues that call into question the constitutionality of the wrongful death and survival action statutes as applied to the facts of this case, see TEX. CIV. PRAC. & REM. CODE ANN. 71.001(2), 71.002(a), 71.003(a), 71.021 (Vernon 1997), and the application of constitutional protections against gender discrimination.

We conclude that, on the facts of this case, the Texas wrongful death and survival action statutes unconstitutionally deny redress and equal protection to a mother and father of a viable¹ fetus capable of living outside the womb, when viability is wrongly terminated by another's negligent conduct. Further, we hold that entitling the mother to damages for the mental anguish caused by the experience of losing a viable fetus to another's negligence while at the same time denying the father an equal right to damages for his mental anguish caused by the same event is unconstitutional gender discrimination on the facts of this case. For these reasons, we affirm the trial court's summary judgment.

BACKGROUND

In this case, two cars collided at a street intersection. One driver, Appellant Richard Parvin, failed to heed a stop sign. The driver of the other car was Appellee Dori Anna Dean, then 36 weeks (9 months) pregnant with Cheri Annette Dean. Dori's husband then and now is Appellee John Thomas Dean, Cheri's father. Parvin has stipulated that he was negligent, that his negligence proximately caused the collision, and that Dori was not negligent. Parvin and Appellees² have stipulated that immediately after the collision, Dori felt Cheri kicking in the womb, her water did not break, and she had no vaginal bleeding, but that as a precaution, an ambulance took Dori from the collision site to the hospital, where Dori and John learned that Cheri was dead in the womb. The next day, with John at her bedside, Dori had to suffer more than nine hours of labor, during which Cheri was delivered vaginally. Cheri was stillborn.

The parties have stipulated that the summary judgment evidence before the trial court included the expert medical testimony of Dr. Douglas Decker, Dori and Cheri's treating physician,³ who is board certified in obstetrics and gynecology. His medical testimony is uncontroverted.⁴ Dr. Decker testified upon a reasonable medical probability that at the time she was stillborn, Cheri was at 36 weeks' gestation, weighed 7 pounds and 3 ounces, and was 21 inches long. Moreover, Dr. Decker testified that upon a reasonable medical probability Cheri was fully developed, viable, and could live outside the womb immediately before the collision, she had the capacity to cry at the time of the collision, and although Cheri was dead before she arrived at the hospital, she was alive at the time of the collision and had lived for some period of time after the collision. Dr. Decker testified that but for the collision, Cheri would be alive and healthy. Without objection, Cheri's photograph, taken after she was delivered, was included in the record. [Tabular or Graphical Material Omitted]

Parvin paid Dori $50,000 in exchange for Dori's agreed settlement of all claims she had brought against him in her individual capacity, one of which was her individual claim for mental anguish from the loss of her fetus. The three remaining claims against Parvin were left for the trial court to resolve by ruling on the opposing motions for summary judgment:

1. Dori and John's claim for Cheri's wrongful death;

2. Dori and John's survival claim related to Cheri's wrongful death;

3. John's claim for the mental anguish he suffered because of Cheri's wrongful death.

SUMMARY JUDGMENT

We quote constitutional issues presented in Appellees' motion for summary judgment:

[T]o the extent Texas Wrongful Death Act and Survival Statute exclude[] viable stillborn babies within its definition[s] of who is an individual, this is arbitrary, unreasonable, and in violation of [Appellees'] rights to due process of law and for equal protection of the laws under the Fifth and/or Fourteenth amendments to the United States Constitution, and Article I, Sections 3 and 19 of the Texas constitution because:

(1) The exclusion of viable fetuses insidiously discriminates [in favor of] viable fetuses who could sustain life if delivered through immediate surgical intervention [and against] viable fetuses who are denied the opportunity to sustain life by being delivered through immediate surgical intervention;

(2) The exclusion insidiously discriminates between viable fetuses and other members of society who are included in the definition of an individual;

(3) The exclusion fails to provide a reasonable substitute for [redress by] parents who are victims of negligence when their viable fetus has been denied [the] opportunity to sustain life outside the womb;

(4) The exclusion does not have a rational basis;

(5) The exclusion of viable fetuses from the [scope of the statutes] constitutes insidious discrimination [against] (1) unborn children possessing capability to live outside their mother's womb whose live births are prevented by acts of negligence and [in favor of] (2) unborn children possessing the capacity to live outside their mother's womb whose live births are prevented by an intentional act. In this regard [Appellees] would show that Article 4495b, Section 4.011, Texas Revised Civil Statute, prohibits a physician practicing medicine in the State of Texas from intentionally performing an abortion on a woman who is pregnant with a viable unborn child during the third trimester of pregnancy. "Viable" is defined as the stage of fetal development . . . when, in the medical judgment of the attending physician, an unborn child possesses the capacity to live outside its mother's womb after its premature birth resulting from any cause. The State of Texas cannot constitutionally recognize the viability of fetuses in its statutes which prohibit physicians from intentionally doing any act to interfere with the live births of a viable fetus while denying the viability of fetuses in statutes which grant causes of action to wrongful death beneficiaries.

(6) The exclusion insidiously discriminates [against] parents of viable fetuses who could sustain life outside the womb but who because of negligence are prevented [from] being born alive and [in favor of] parents of other children whose lives are not preempted prior to birth.

See U.S. CONST. amends. V, XIV; TEX. CONST. art. I, 3, 19. Appellees' motion also asserts that rejecting the father's mental anguish claim on the stipulated facts while granting the mother's mental anguish claim on the same facts would constitute gender discrimination that violates the Equal Rights Amendment to the Texas Constitution, Article I, Section 3a.

The court eventually signed a summary judgment that does not state specific grounds but grants Appellees a judgment for $50,000 against Parvin. Because of the parties' stipulations, if Parvin's appeal from the summary judgment is unsuccessful and we affirm Appellees' right to recover against Parvin on any of their theories (either wrongful death, survival, or for John's mental anguish), then Parvin's maximum additional liability will be $50,000.

THE APPEAL

Appellant also filed a summary judgment motion, which the trial court denied, but Appellant does not appeal that denial. He only appeals the court's granting of Appellees' motion. Appellant insists that the trial court's conclusions about the issues of law presented in Appellees' motion were wrong. Relying on the stipulated facts, Appellant asks us to resolve three issues of law on appeal: whether Cheri's death entitles Appellees to a wrongful death cause of action, whether Cheri's death entitles Appellees to a survival claim, and whether Cheri's death entitles John, as her father, to recover for his mental anguish. Inherent in all three of the issues are the constitutional challenges on which Appellees grounded the summary judgment motion that the trial court granted.

Because the appeal evolves from a case in which the stipulated and uncontroverted evidence establishes that Appellant's negligence in a car crash proximately caused a pregnant mother's viable fetus to be stillborn, we must recognize that the Texas Supreme Court has interpreted the wrongful death and survivor statutes to mean that parents in this state cannot recover for the wrongful death of their unborn child, see Shwarts, 968 S.W.2d at 335 (Gonzalez, J., dissenting), and also to mean that until and unless the legislature amends those statutes, there is no wrongful death and survival cause of action for the death of a viable fetus that is stillborn. See Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex. 1995); Blackman v. Langford, 795 S.W.2d 742, 743 (Tex. 1990) (citing Witty v. American Gen. Capital Distrib., 727 S.W.2d 503, 506 (Tex. 1987); Tarrant County Hosp. Dist. v. Lobdell, 726 S.W.2d 23, 23 (Tex. 1987)).

Unlike those cases, however, the present appeal focuses upon the issue of...