Opinion

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 02-1061

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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, Respondent

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On Petition for Review from the

Court of Appeals for the Second District of

Texas

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Argued October 8,

2003

Justice Smith, dissenting.

This

medical malpractice case arises from treatment provided to Tara Reese and her

unborn child, named Clarence Reese by the parent-plaintiffs, who died in utero on May 12, 1998.

Citing Witty v. American General Capital Distributors, Inc. , 727

S.W.2d 503 (Tex. 1987), the defendants assert that health care providers owe no

legal duty of reasonable care to a human fetus who dies before birth. In response, the plaintiffs request that we

overrule Witty and recognize a cause of action under both the wrongful

death statute and the survival statute for negligence that causes the prenatal

death of a viable fetus.

The

wrongful death statute provides: A An

action for actual damages arising from an injury that causes an individual = s death may be brought if liability

exists under this section. @ Tex.

Civ. Prac. & Rem. Code '

71.002(a) (emphasis added). The survival

statute provides: A 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

. . . . @ Id . '

71.021(a) (emphasis added).

The

initial question presented in this case is whether the words A individual @

and A person @ include a viable fetus who dies before

birth. Relying on A legislative acquiescence @ and stare decisis ,

the Court concludes that they do not. I

disagree.

I

The

Texas Wrongful Death Act was enacted by the 8th Legislature [1] and the

Texas Survival Act was enacted by the 24th Legislature. [2] Before the plaintiffs =

causes of action accrued, no relevant parts of those enactments had been

substantively amended. [3] Therefore, in resolving this case, the Court

must ascertain and effectuate the intent of the enacting Legislatures. See Crown Life Ins. Co. v. Casteel , 22

S.W.3d 378, 383 (Tex. 2000) ( A The

primary rule in statutory interpretation is that a court must give effect to

legislative intent. @ ); Manry v. Robison , 56 S.W.2d 438, 447 (Tex.

1932) ( A [I]n the

absence of some specific amendment we should give [a statute] the meaning which

it had at the time of its enactment. @ ).

In

my view, when adopting the wrongful death act and the survival act, neither the

8th Legislature nor the 24th Legislature intended to exclude a viable human

fetus who dies before birth. In

addition, when construing a statute, a court should not draw any inference

regarding the intent of the enacting legislature from the inaction of

subsequent legislatures. My position

regarding what is commonly referred to as A legislative

acquiescence @ is

consistent with the majority of jurisdictions.

See, e.g. , Helvering v. Hallock , 309 U.S. 106, 119-20 (1940) ( A To explain the cause of non-action by

Congress when Congress itself sheds no light is to venture into speculative

unrealities. @ ). Finally, I believe that the Court is not

constrained in this case by its prior decisions. An analysis of the factors traditionally

considered by courts establishes that Witty and its progeny are weak

precedent. Moreover, the initial

question presented in this case is too important to be resolved solely on the

basis of stare decisis .

The

Court should abandon the interpretation of sections 71.002 and 71.021 of the

Civil Practice and Remedies Code first announced in Witty . [4] Instead, we should construe A individual @

and A person @ to include a fetus, as urged by

Justice Kilgarlin in his Witty dissent, which was joined by Chief

Justice Hill and Justice Ray. Witty ,

727 S.W.2d at 506‑12. Similarly,

we should adopt the reasoning of Justice Gonzalez = s

dissents in Krishnan v. Sepulveda , 916 S.W.2d 478 , 483‑89 (Tex.

1995) and Edinburg Hospital Authority v. Treviño , 941 S.W.2d 76, 85-92 (Tex. 1997), which assert

that a fetus falls within the definitions of A individual @ and A person. @ [5]

Given

my view of the proper interpretation of A individual @ and A person @ in the wrongful death and survival

statutes, I do not reach the substantial constitutional issues raised in this

case because the plaintiffs =

causes of action would be statutorily recognized. [6] I also do not reach the issue regarding

whether Tara Reese, the mother, raised a fact issue on her own claim for

medical malpractice. Finally, because of

my concern about the Court = s

analysis regarding whether a viable human fetus is a A person @ under the equal protection provisions

of the United States Constitution and the Texas Constitution, I do not join any

part of the Court = s

opinion.

II

I

recognize the importance of stare decisis and

acknowledge that precedent must not be lightly discarded. However, A [s]tare

decisis is not an inexorable command; rather, > it is a principle of policy and not

a mechanical formula of adherence to the latest decision. = @ Payne v. Tennessee , 501 U.S. 808, 828

(1991) (quoting Helvering v. Hallock , 309 U.S. 106, 119 (1940)).

Recognizing

that the doctrine of stare decisis is not absolute,

this Court has previously overruled itself in this specific area of the

law. In Treviño ,

Justice Gonzalez noted:

In Leal v. C.C.

Pitts Sand & Gravel, Inc. , 419 S.W.2d 820, 821 (Tex. 1967), this Court

held that parents of a viable infant born alive have a cause of action under

the Wrongful Death Statute if the baby later dies from injuries inflicted while

in utero . In

the process, we overruled Magnolia Coca Cola Bottling Co. v. Jordan , 124

Tex. 347 , 78 S.W.2d 944 (1935), citing one legal writer who remarked that A [s] eldom in

the law has there been such an overwhelming trend in such a relatively short

period of time as there has been in the trend towards allowing recovery for

prenatal injuries to a viable infant. @ Leal , 419 S.W.2d at 822 .

Treviño , 941 S.W.2d at 88 (Gonzalez, J.,

dissenting). Like Magnolia Coca Cola

Bottling Co. v. Jordan , Witty was wrongly decided and should be

overruled. Cf . Sanchez v.

Schindler , 651 S.W.2d 249, 251 (Tex. 1983) (overruling March v. Walker ,

48 Tex. 372, 375 (1877) C A It is time for this court to revise its

interpretation of the Texas Wrongful Death statutes . . . . @ ).

Texas

courts have recognized several factors that weaken the precedential

value of an opinion. For example, the

Court of Criminal Appeals utilizes the following factors when determining

whether to overrule precedent: 1) the original decision was flawed from the

outset, due to flawed reasoning, lack of authority, or misplaced reliance upon

cited authorities; 2) the decision conflicts with other precedent; 3) the

decision has been undercut by the passage of time; 4) the decision produces

inconsistency and confusion in the law; and 5) the decision consistently

creates unjust results. Hammock v.

State , 46 S.W.3d 889, 892-93 (Tex. Crim . App.

2001). The foregoing factors are present

in this case, as are additional considerations that undermine the precedential value of Witty and its progeny.

A

Witty

was wrongly decided C its

reasoning was flawed and it lacked authority.

Rather than replicate verbatim the lengthy and eloquent dissents

authored by Justices Kilgarlin and Gonzalez, I adopt by reference their

reasoning concerning the proper interpretation of A individual @ and A person @ in the wrongful death and survival

statutes. The dissents in Witty , Krishnan ,

and Treviño demonstrate that the common law

definition of A person @ during the period when the wrongful

death act and the survival act were enacted treated a human fetus as a legal

person and that other historical evidence indicates the enacting Legislatures

intended to include a fetus within the meaning of A person @ for purposes of those acts.

Justices

Kilgarlin and Gonzalez conducted an extensive examination of the common law

concerning legal personhood, dating to its eighteenth century English origins,

and produced persuasive evidence that a fetus was regarded as a legal person

under the common law during the last half of the nineteenth century. [7] The majority in Witty did not dispute

or otherwise directly address the dissent = s

historical evidence regarding the common law definition of A person @

and failed to consider how the common law informed the understanding and intent

of the enacting Legislatures.

In

his dissent in Witty , Justice Kilgarlin also stated:

In Chapter IX of

that Code, entitled A Of

Homicide, @ the

legislature provided A [t]he

person upon whom the homicide is alleged to have been committed, must be in

existence by actual birth. @ Tex. Pen. Code art. 545 (1856); Oldham &

White, Digest, Laws of Texas 425 (1859); Paschal, Digest of the Laws

of Texas , Vol. I, article 2206. If

the legislature found it necessary to limit persons upon whom a homicide could

be committed to those born alive, can we not infer two things? One, is there not another category of A persons @

than those in existence by actual birth?

If so, that is a concession that a fetus was a person, but that the

legislature did not intend to follow A the

antient law, @

and make it the subject of a homicide.

Two, if the legislature found it necessary in the 1856 Penal Code to

qualify A person @ to one born alive, why did not the

Wrongful Death Act contain the same qualification? Law of February 2, 1860 ch .

35, 1860 Tex. Gen. Laws 32 , 4 H. Gammel , Laws of

Texas 1394 (1898). Can it not be

argued that had the legislature intended a similar limitation on A person, @

it would have said so, contrary to the assertion by the court A that the legislature did not intend the

words > individual = or > person = to be construed to include an unborn

fetus. @ 727 S.W.2d at 504 .

Witty ,

727 S.W.2d at 510 .

It

is also significant that the Legislature criminalized abortion in 1854. [8] The Texas law outlawing abortion was part of

a national movement that began in the mid-nineteenth century. By 1860, twenty of the thirty-three states

had outlawed abortion by statute. By

1880, abortion was illegal in every state.

See Eva R. Rubin, Abortion,

Politics, and the Courts: Roe v. Wade and Its Aftermath 13-15

(1987). The relevance of the 1854

enactment outlawing abortion to the understanding and intent of the Legislature

that adopted the wrongful death act in 1860 is clear: it is unlikely that only

three regular sessions later, the Legislature had fundamentally altered its

view regarding whether a fetus should be recognized as a legal person. In addition, when the survival act was

adopted in 1895, the 1854 abortion enactment remained in effect.

B

Another

factor undermining Witty is that it conflicts with other, more recent

precedent. In Brown v. Shwarts , 968 S.W.2d 331 (Tex. 1998), the Court

concluded that, in a wrongful death suit involving a child who died the day

after birth, limitations began to run from the time the prenatal injury

occurred. [9] The test to determine when the statute of

limitations begins to run on a tort action is whether the act causing the

damage constitutes a legal injury. See,

e.g. , Atkins v. Crosland , 417 S.W.2d 150, 153 (Tex. 1967). Shwarts

conflicts with Witty because, under Witty , there is no legal

injury giving rise to a wrongful death or survival cause of action until the child

is born alive. Based on Witty ,

any legally recognized injury is merely hypothetical until birth occurs C potentially many months after

limitations begin to run under Shwarts . Witty cannot be reconciled with Shwarts in light of well-established limitations

principles.

Witty

is also in tension with some of this Court = s

earlier jurisprudence that remains good law.

In Nelson v. Galveston, Harrisburg & San Antonio Railway Co. ,

14 S.W. 1021 (Tex. 1890), the Court concluded that a pregnant mother could

bring wrongful death and survival actions against her deceased husband = s employer on behalf of their unborn

child, relying in part on the common law:

Perhaps no case,

when it was decided in 1798, involved more important rights than that of Thellusson v. Woodford , 4 Ves .

319. Counsel and judges of high

authority engaged in its discussion and decision. Replying to the contention that an unborn

child was a nonentity, and, in that case, the limitation was therefore void,

Mr. Justice Buller said: A Let

us see what the nonentity can do. He may be vouched in a recovery, though it is

for the purpose of making him answer over in value. He may be an executor. He may take under the statute of

distributions. He may have an

injunction, a guardian. @

Id . at

1022. The Nelson Court further

noted: A We think,

also, that the plaintiff in this case, although unborn at the time of his

father = s death,

was in being, and one of his surviving children. @ Id . at 1023. The majority in Witty acknowledged

that Nelson remained good law. See

Witty , 727 S.W.2d at 505 .

C

Witty

has been undercut by the passage of time.

The majority in Witty stated that A by

a ratio of better than two to one, the majority of states have ruled in favor

of permitting a wrongful death action on behalf of an unborn fetus . . . . @

Id. The dissent clarified

that thirty-five states and the District of Columbia had ruled in favor of

permitting those actions and only eight states had ruled against. Id . at 512.

At

the time Witty was decided, Montana and North Carolina were included

among the eight states that did not A allow

this type of recovery. @ Id . at 512 n.3. Both states have since recognized a wrongful

death action for a viable fetus who dies before birth. See Strzelczyk

v. Jett , 870 P.2d 730, 733 (Mont. 1994) (holding that a A full-term fetus should be considered a > person = @ ); DiDonato

v. Wortman , 358 S.E.2d 489, 491 (N.C. 1987)

(holding that A the word > person =

in the Wrongful Death Act includes a viable fetus @ ). Arkansas has also since recognized an action

for a viable fetus who dies before birth.

See Aka v. Jefferson Hosp. Ass = n, Inc. , 42 S.W.3d 508, 512 (Ark.

2001) (overruling Arkansas Supreme Court precedent that a A viable fetus is not a > person =

within the meaning of Arkansas = s

wrongful-death statute @ ).

Although

not unanimous, an overwhelming majority of jurisdictions continues to recognize

a wrongful death action for negligent conduct that causes the prenatal death of

a viable fetus.

D

Witty

and its progeny have produced inconsistency and confusion in the law. One example is the different resolution of

the mental anguish claims in Treviño and

in this case. Relying on Witty ,

the Court in Treviño stated:

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

A 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.

Edinburg Hosp. Auth. v. Treviño ,

941 S.W.2d 76, 79 (Tex. 1997).

In

this case, the Court attempts to distinguish Tara Reese = s

testimony from Shirley Mora = s

testimony. However, the testimony of the

two women is in fact very similar. Reese = s affidavit stated:

On the morning of

May 12, 1998, I was told that our baby had died. I was devastated. I had carried this baby for almost eight

months and then that part of me was suddenly gone. When the baby died, a part of me died too.

The feeling of

carrying a part of me that was no longer living is difficult to describe. To make it worse, I had to go through a long

and painful delivery, knowing our baby was dead. I will never forget that feeling as long as I

live.

Afterwards, I cried

uncontrollably because of what happened to us.

There were many nights when I could not sleep and had nightmares about

our loss. My heart was broken.

My husband and I received

some counseling from our pastor, but I do not know if I will ever fully recover

from what happened.

Reese = s testimony is only semantically, not

substantively, different from that given by Mora . Reese = s

statements express mental anguish above and beyond that resulting from the loss

of a part of her body, such as a finger.

The

Court = s

half-hearted and ultimately unconvincing attempt to distinguish Reese = s testimony from Mora = s testimony illustrates that the legal

artifice constructed by Witty , which equates a viable human fetus with a

finger or other part of a woman = s

body, is untenable. Indeed, this legal

fiction is belied by the dichotomous biological reality wherein the fetus

receives blood and nourishment from the mother through the umbilical cord and

placenta, but possesses its own unique genetic makeup and organs. While a fetus is profoundly interconnected

with the mother, it is at the same time growing and developing into a separate

human being. A mother cannot reasonably

parse the mental pain and anguish she feels, distinguishing between the effect

of a miscarriage on her own body and the concomitant death of the fetus. As a result, the standard established by Treviño and applied by the majority in this case is

simply a A magic

words @ test

under which the mother must describe her mental anguish without making too

numerous or too explicit references to the deceased fetus.

E

The

rule announced in Witty continues to create unjust results. It produces the counterintuitive consequence,

which was likely not intended by the enacting Legislatures, that A it is more profitable for the defendant

to kill than to injure. @ Witty , 727 S.W.2d at 506-07

(Kilgarlin, J., dissenting).

Before

Witty , the Alabama Supreme Court recognized this injustice:

To deny recovery

where the injury is so severe as to cause the death of a fetus subsequently stillborn,

and to allow recovery where injury occurs during pregnancy and death results therefrom after a live birth, would only serve the tortfeasor by rewarding him for his severity in inflicting

the injury. It would be bizarre, indeed,

to hold that the greater the harm inflicted the better the opportunity for

exoneration of the defendant. Logic,

fairness and justice compel our recognition of an action, as here, for prenatal

injuries causing death before a live birth.

Eich v. Town of Gulf Shores , 300 So.2d 354,

355 (Ala. 1974) (footnote omitted).

This

year, New York = s highest

state court premised a decision on the same rationale. See Broadnax

v. Gonzalez , 809 N.E.2d 645 (N.Y. 2004).

In overturning its prior decision in Tebbutt

v. Virostek , 483 N.E.2d 1142 (N.Y. 1985), which

was similar to the Texas decision in Krishnan , the New York court

stated:

[W]e are no longer

able to defend Tebbutt = s

logic or reasoning.

As its dissenters

recognized, the rule articulated in Tebbutt

fits uncomfortably into our tort jurisprudence.

Infants who are injured in the womb and survive the pregnancy may

maintain causes of action against tortfeasors

responsible for their injuries. Further,

a pregnant mother may sue for any injury she suffers independently. A parent, however, cannot bring a cause of

action for wrongful death when a pregnancy terminates in miscarriage or

stillbirth.

Injected into this

common law framework, Tebbutt engendered a

peculiar result: it exposed medical caregivers to malpractice liability for in utero injuries when the fetus survived, but immunized them

against any liability when their malpractice caused a miscarriage or

stillbirth. In categorically denying recovery

to a narrow, but indisputably aggrieved, class of plaintiffs, Tebbutt is at odds with the spirit and direction of

our decisional law in this area.

Broadnax , 809 N.E.2d at 648 (citations omitted).

F

In

addition to the factors discussed above, the Court has recognized that, when

determining whether to overrule precedent, we should A pause

and consider how far the reversal would affect contracts and transactions

entered into and acted upon under the law of the Court. @ Thompson v. Kay , 77 S.W.2d 201, 207 (Tex.

1934) (quoting Sydnor v. Gascoigne , 11

Tex. 449, 455 (1854)). The doctrine of

stare decisis has been strictly followed by this

Court in cases involving established rules of property rights. Southland Royalty Co. v. Humble Oil &

Ref. Co. , 249 S.W.2d 914, 916 (Tex. 1952).

Stare decisis A is

never stronger than in protecting land titles, as to which there is great

virtue in certainty. @ John G. & Marie Stella Kenedy Mem = l Found. v. Dewhurst ,

90 S.W.3d 268, 281 (Tex. 2002). In that

area and others involving vested property or contract rights, reversing

precedent may have the undesirable effect of A upsetting

long‑settled expectations. @ See id .

Overruling

Witty will not upset existing economic arrangements based on long-settled

expectations. Tortfeasors

have no long-settled expectation of immunity from causes of action arising out

of negligent conduct that results in the prenatal death of a viable fetus. Cf . Moragne

v. State Marine Lines , 398 U.S. 375, 403-04 (1970) (overruling longstanding

United States Supreme Court precedent and recognizing wrongful death action

under general maritime law C A It can hardly be said that shipowners have molded their conduct around the possibility

that in a few special circumstances they may escape liability for such a

breach. @ ).

III

The

initial question presented in this case C whether

the words A individual @ in the wrongful death statute and A person @

in the survival statute include a viable human fetus who dies before birth C is sharply contested. The defendants argue: A The

Reese fetus was not born alive.

Therefore, Texas law prohibits any recovery under the wrongful death and

survival statutes based on the > death = of the Reese fetus. @

In response, the plaintiffs argue: A The

time has come for this Court to re-examine and narrowly overrule Witty

as it applies to viable unborn children, restore sanity to an area of

jurisprudence that is morally and legally repugnant, and bring Texas into step

with those states that recognize these claims. @

In

resolving this case, the Court does not assert that Witty was correctly

decided in 1987. Rather, the Court

concludes in summary fashion that the original 6-3 decision should not be

overruled. [10] However, whether the words A individual @

and A person @ include a fetus who dies before birth

is too important a question to be resolved in that manner.

Based

on the analysis set forth in parts I and II above, Witty should be

overruled. Cf . Moragne , 398 U.S. at 405 ( A Finally,

a judicious reconsideration of precedent cannot be as threatening to public

faith in the judiciary as continued adherence to a rule unjustified in reason,

which produces different results for breaches of duty in situations that cannot

be differentiated in policy. Respect for

the process of adjudication should be enhanced, not diminished, by our ruling

today. @ ).

I

would affirm the court of appeals =

judgment. The Court reverses in part and

affirms in part that judgment.

Accordingly, I respectfully dissent.

____________________________________

Steven W. Smith

Justice

Opinion delivered: August 27, 2004

[1] See Act approved Feb. 2, 1860, 8th Leg., R.S.,

ch . 35, 1860 Tex. Gen. Laws 32 (current version at Tex. Civ. Prac. & Rem. Code ' ' 71.001-71.020).

[2] See Act approved May 4, 1895, 24th Leg., R.S.,

ch . 89, 1895 Tex. Gen. Laws 143 (current version at Tex. Civ. Prac. & Rem. Code ' ' 71.021-71.030).

[3] In 2003, after the plaintiffs = causes of action accrued, the wrongful death statute

was amended. See Act approved

June 20, 2003, 78th Leg., R.S., ch . 822, 2003 Tex.

Gen. Laws 2607 . The Act became effective

on September 1, 2003. Among other

changes, the Legislature provided, for the first time, a definition of A individual @ in the

statute. A > Individual = includes an unborn child at every stage of gestation

from fertilization until birth. @ Id . ' 1.01, sec. 71.001, 2003 Tex. Gen. Laws 2608 . The new statutory definition and the other

amendments to the wrongful death statute A apply

only to a cause of action that accrues on or after the effective date of [the]

Act. @ Id . ' 1.04, 2003 Tex. Gen. Laws 2608 . Therefore, this case A is governed by the law as it existed immediately

before the effective date of [the] Act. @ Id .

[4] In Witty , the Court noted: A The recent codification of the Wrongful Death Act

provides recovery for > damages arising from an injury that causes an individual = s death. = Tex. Civ. Prac. & Rem. Code Ann. ' 71.002(b) (emphasis added). Prior to the codification, the Act provided

recovery of > damages on account of the injuries causing the death

of any person . = Tex. Rev. Civ. Stat. Ann. art. 4671

(Vernon Supp. 1941‑1985) (emphasis added). The legislature did not intend any

substantive change in the Act by substituting the word > individual = for the

word > person = in the recodification . Tex.

Civ. Prac. & Rem. Code Ann . ' 10,

1985 Tex. Sess . Law Serv .

7219 (Vernon). @ Witty ,

727 S.W.2d at 504 . The wrongful death

statute did not define A individual @ until

after the Reeses = causes

of action accrued. The survival statute

uses A person @ throughout rather than A individual, @ and has never defined A person. @

[5] In his Treviño

concurrence, Justice Abbott stated: A I would

be inclined to overrule Witty and allow recovery for the wrongful death

of a fetus. However, the Treviños have not made any argument to this Court that Witty

should be overruled. @ Treviño , 941 S.W.2d

at 85 (Abbott, J., concurring).

[6] Under the federal supremacy clause, we are bound by Roe

v. Wade , 410 U.S. 113 (1973) and its progeny. However, the resolution of this case is not

controlled by that line of cases. Roe

v. Wade does not foreclose state law remedies for negligent medical

treatment that, without the consent of the mother, causes the death of a human

fetus. See, e.g. , Summerfield

v. Superior Court , 698 P.2d 712, 723 (Ariz. 1985) ( A Roe v. Wade

balances the rights of the fetus against the rights of its mother and concludes

that the latter = s right to privacy outweighs the former = s right to life in the first trimester of pregnancy;

it > neither prohibits nor compels = the inclusion of a fetus as a person for the purposes

of other enactments. @ ) (citation omitted); O = Grady v. Brown ,

654 S.W.2d 904, 910 (Mo. 1983) ( A Roe

v. Wade , while holding that the fetus

is not a > person = for purposes of the 14th amendment, does not mandate

the conclusion that the fetus is a legal nonentity. > The

abortion issue involves the resolution of the mother = s rights as against the child when the two are in

conflict. Whatever may be the

determination of the rights in that context, this special relation gives a

third-party tortfeasor no comparable rights. = @ ) (citation omitted).

[7] In concluding that Arizona = s wrongful death statute provided a cause of action

for a viable fetus who dies before birth, the Arizona Supreme Court provided a

scholarly analysis of the relevant common law.

See Summerfield , 698 P.2d at 715-21 .

[8] See Act approved Feb. 9, 1854, 5th Leg., ch . 49, ' 1, 1854 Tex. Gen. Laws 58 . The sentence for aborting a fetus was A confinement to hard labor in the Penitentiary not

exceeding ten years. @ Id .

[9] In resolving Shwarts ,

the Court concluded that a fetus was a A patient @ with a A doctor‑patient @ relationship. Shwarts , 968 S.W.2d at 334 . In a concurrence, Justice Gonzalez noted that

every definition of A patient @

contained in a Texas statute referred to a A person @ or A individual. @ Id . at 336‑37 (Gonzalez, J.,

concurring). The conclusion in Witty

that a fetus is neither an A individual @ nor a A person @ is therefore inconsistent with the conclusion in Shwarts that a fetus is a A patient. @

[10] For example, the Court incorrectly asserts that the

Legislature has endorsed A the holding of Witty . @ ___ S.W.3d at

___. In fact, the Legislature rejected

this Court = s holding in Witty in 2003. Witty involved a workplace injury that

caused the prenatal death of a viable fetus.

See Witty v. Am. Gen. Capital Distrib .,

Inc. , 697 S.W.2d 636, 638 (Tex. App. C Houston

[1st Dist.] 1985), rev = d

in part , 727 S.W.2d 503 (Tex. 1987)

(Kimberly Witty A alleged that while employed by defendant as a

receptionist, she tripped over a utility outlet and fell with such force that

her unborn baby was fatally injured. @ ). In reversing the court of appeals, this Court

specifically held that a fetus was not an A individual. @ Witty ,

727 S.W.2d at 504 . If the same set of

facts occurred today, a similarly situated plaintiff would be entitled to bring

a wrongful death action against her employer for the death of her unborn

fetus. See Tex. Civ. Prac. & Rem. Code ' ' 71.001-71.020.