Sepulveda v. Krishnan

• Decision Date: 31 August 1992
• Docket Number: No. 13-91-245-CV,13-91-245-CV
• Citation: 839 S.W.2d 132
• Parties: Humberto SEPULVEDA, Jr. and Olga Sepulveda, Appellants, v. Elizabeth G. KRISHNAN, M.D., Appellee.
• Court: Texas Court of Appeals

Page 132

839 S.W.2d 132

Humberto SEPULVEDA, Jr. and Olga Sepulveda, Appellants, v. Elizabeth G. KRISHNAN, M.D., Appellee.

No. 13-91-245-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1992.

Rehearing Overruled Oct. 15, 1992.

David J. Nagle, Austin, for appellants.

Gary L. Gurwitz, Rex N. Leach, Kristen Clark, Lisa Powell, Atlas & Hall, McAllen, for appellee.

Before SEERDEN, KENNEDY, and GILBERTO HINOJOSA, JJ.

OPINION

SEERDEN, Justice.

Humberto and Olga Sepulveda appeal from the dismissal of their claims against Elizabeth Krishnan, M.D., for medical malpractice in connection with the supervision and treatment of Olga during pregnancy and the death of the child. The Sepulvedas raise four points of error. We reverse and remand.

By their original petition, the Sepulvedas alleged that Dr. Krishnan was negligent in her prenatal supervision of Olga's pregnancy and her failure to diagnose and promptly treat Olga's condition of preeclampsia. The Sepulvedas alleged that Dr. Krishnan's negligence caused their daughter's death, caused the Sepulvedas to suffer mental anguish, loss of society and companionship of their daughter, and funeral and burial expenses for their daughter.

Dr. Krishnan specially excepted to the original petition on the ground that the damages alleged in the form of mental suffering and loss of society, companionship and affection are not recognized under Texas law for the death of an unborn fetus.

On the day of the pretrial hearing, the Sepulvedas attempted to file Plaintiffs' First Amended Petition, in which the Sepulvedas alleged more specifically the basis of their claim that Dr. Krishnan had been negligent in her treatment of Olga, that their daughter was stillborn, and that they sustained "bystander" emotional damages.

By the order now appealed from, the trial court denied leave to file Plaintiffs' First Amended Petition as untimely, sustained the special exception and ordered the case dismissed with prejudice.

By their first and second points of error, the Sepulvedas complain that the trial court erred in sustaining a special exception to their causes of action for mental suffering and loss of society, companionship and affection of their child due to the negligence of Dr. Krishnan, and in dismissing the their case with prejudice.

Dismissal on Special Exceptions

Where the plaintiff's pleadings are insufficient because they fail to state a cause of action, the proper remedy for the defendant is to file special exceptions under Tex.R.Civ.P. 91. Moseley v. Hernandez, 797 S.W.2d 240, 242 (Tex.App.--Corpus Christi 1990, no writ); McFarland v. Reynolds, 513 S.W.2d 620, 626 (Tex.Civ.App.--Corpus Christi 1974, no writ). If the special exceptions have been sustained, generally the plaintiff must then be given an opportunity to amend before the case may be dismissed for failure to state a cause of action. Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974); Moseley, 797 S.W.2d at 242.

However, the trial court need not give the plaintiff an opportunity to amend when the pleading defect is of a type that amendment cannot cure. Slentz v. American Airlines, Inc., 817 S.W.2d 366, 369 (Tex.App.--austin 1991, writ denied); Geochem Laboratories, Inc. v. Brown & Ruth Laboratories, Inc., 689 S.W.2d 288, 290 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.); Atkinson v. Reid, 625 S.W.2d 64, 66 (Tex.App.--San Antonio 1981, no writ); Williams v. Muse, 369 S.W.2d 467, 470-71 (Tex.Civ.App.--Eastland 1963, writ ref'd n.r.e.). ¹ In the present case, Dr. Krishnan argues that the Sepulvedas' claims for damages flowing from the death of their unborn fetus cannot be amended to state a cause of action because claims of this nature are not recognized under Texas law.

In their original petition, the Sepulvedas alleged that:

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 the above paragraph of plaintiffs' petition on the ground that the damages alleged are not recognized under Texas law for the death of an unborn fetus.

However, nowhere in the original petition do the Sepulvedas allege that their child was stillborn or that their cause of action is based on the death of a fetus. Indeed, by their third point of error, the Sepulvedas separately complain that the trial court improperly inferred that their cause of action was for the death of a fetus from counsels' argument of matters outside the record during the pretrial hearing. In order to determine whether the special exceptions were properly sustained, we must initially determine the nature of the pleadings and whether the trial court properly considered the Sepulvedas' causes of action to be based on the death of a fetus.

Admissions

A special exception becomes an impermissible "speaking demurrer" when, instead of limiting itself to the allegations of the petition and pointing out defects evident therein, it relies upon facts extrinsic to the petition to challenge the plaintiff's right to recover. Brown v. Hawes, 764 S.W.2d 855 (Tex.App.--Austin 1989, no writ); Moseley, 797 S.W.2d at 242 n. 1; 2 R. McDonald, Texas Civil Practice in District and County Courts § 7.22 (rev. 1970).

However, at a pre-trial hearing, admitted or undisputed facts may be used to narrow and define the pleadings upon which a special exception has been raised contending that the plaintiff has not asserted a cause of action upon which relief may be granted. Provident Life & Accident Ins. Co. v. Hazlitt, 147 Tex. 426, 216 S.W.2d 805, 807 (1949).

A judicial admission must be: 1) made in the course of a judicial proceeding; 2) contrary to an essential fact for the party's recovery; 3) deliberate, clear and unequivocal; 4) related to a fact upon which judgment for the opposing party could be based; and 5) enforcing the admission would be consistent with public policy. Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 720 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.); United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.--San Antonio 1951, writ ref'd). If they satisfy the above rule, moreover, counsel's statements on behalf of his client may serve as judicial admissions. See Shafer v. Bedard, 761 S.W.2d 126, 129-30 (Tex.App.--Dallas 1988, no writ); Hochmetal Africa (PTY), Ltd. v. Metals, Inc., 566 S.W.2d 715, 718 (Tex.Civ.App.--Corpus Christi 1978, no writ); Rosse v. Northern Pump Co., 353 S.W.2d 287, 292 (Tex.Civ.App.--Austin 1962, writ ref'd n.r.e.).

A trial court thus has the right to consider the petition in light of the admissions of plaintiff's counsel regarding the intent and nature of plaintiff's claims. See Sedgwick v. Kirby Lumber Co., 130 Tex. 163, 107 S.W.2d 358, 360 (1937) (counsel represented that no charge of fraud was intended by petition in connection with a cause of action which thereby became insupportable and was dismissed on general demurrer).

In the present case, Mr. Schmidt, counsel for the Sepulvedas, repeatedly represented to the trial court at the pretrial hearing that his cause of action was for "emotional damages accompanying the loss of the fetus," and that the Sepulvedas "were caused to suffer severe mental pain, grief and sorrow ... arising out of the death of the fetus." In addition, after Mr. Gurwitz, counsel for Dr. Krishnan, represented to the court that "[t]he baby was still born (sic), and there is no argument about that," Schmidt silently acquiesced and later continued to characterize his cause of action as "arising out of the fetal demise," and stated that "[i]t is our position that we have alleged a cause of action for fetal demise from the onset." In short, Schmidt's representations that the fetus in question died before birth were deliberate, clear and unequivocal, and thus acted as a judicial admission.

Claims Arising From Fetal Demise

We must now determine whether Texas law recognizes the causes of action alleged by the Sepulvedas in connection with the death of their stillborn daughter. The Sepulvedas' original petition, as interpreted in light of counsel's admissions, alleged three basic causes of action for: (1.) mental anguish from the death of the fetus and from the negligent treatment of Olga's condition; (2.) loss of society and companionship of the stillborn child; and (3.) funeral and burial expenses for the stillborn child.

a. Statutory Wrongful Death Act Claims.

In Sanchez v. Schindler, 651 S.W.2d 249, 251 (Tex.1983), the Texas Supreme Court first recognized a parent's right to recover damages for loss of companionship and society and for mental anguish for the death of a child under the Texas Wrongful Death Act. Tex.Civ.Prac. & Rem.Code Ann. § 71.001 et seq. (Vernon 1986). In a recent wrongful death of a child case, Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex.1986), the Texas Supreme Court listed the four basic elements of damages as: pecuniary loss, loss of inheritance, mental anguish, and loss of society and companionship. With regard to the latter two, moreover, the Supreme Court noted that "mental anguish" represents an emotional response to the death itself, while "loss of society and companionship" constitutes a loss of positive benefits which flowed to the family from the decedent's having been a part of it. Id. at 687-88.

However, our Supreme Court has also held that the Texas Wrongful Death Act precludes recovery for the death of a fetus. Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 504 (Tex.1987). Thus, any such claims in the present case for mental anguish or...