Opinion

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═

No. 02-1061

═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═

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

═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═

On Petition for Review from the

Court of Appeals for the Second District of Texas

═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═

Argued October 8, 2003

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.

Justice O = Neill filed a concurring opinion.

Justice Smith filed a dissenting

opinion.

Justice Schneider did not participate

in the decision.

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 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 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 A individual @ or A 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 311,

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 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 A 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 A individual @

under the wrongful death act to include A an

unborn child at every stage of gestation from fertilization until birth @ ).

However, the statute expressly does not apply to claims A 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 A 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: A 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 A require a similar multi‑tiered

analysis. @ Ford Motor Co. v. Sheldon , 22 S.W.3d

444, 451 (Tex. 2000); see also

Rose v. Doctors Hosp. , 801 S.W.2d 841, 846 (Tex.

1990) ("Texas cases echo

federal standards when determining whether a statute violates equal

protection."). Two classifications

are at issue here. The first is the

distinction in the wrongful death statute between parents of a stillborn fetus

and parents of a child born alive. The

second is the distinction under the survival statute between a fetus that dies

in utero and a fetus that is born but dies subsequent to birth. The United States Supreme Court has held that

the unborn are not included within the protection of the Fourteenth Amendment,

which contains the Equal Protection Clause.

That Court held in Roe v. Wade , 410 U.S.

113, 158 (1973), A that the

word > person, = as used in the Fourteenth Amendment,

does not include the unborn. @ While the Supreme Court has acknowledged the

state = s

interest in the life of a fetus before birth, Planned Parenthood v. Casey ,

505 U.S. 833, 846 (1992), it has never repudiated its holding in Roe

that the Equal Protection Clause does not apply to a fetus. The Legislature may therefore extend wrongful

death and survival causes of action only to persons that are born live without

violating the federal Equal Protection clause.

The Reeses do not argue that our state constitution = s guarantee of equal protection is

broader than or different from the federal constitution in this regard. See Tex.

Dep = t of

Transp. v. Barber , 111 S.W.3d 86, 106 (Tex.

2003). In the absence of this showing,

we decline on this record to hold that our state constitution provides

additional protection to fetuses or requires that we abandon the common-law

rule.

A

parent = s claim

for loss of consortium and mental anguish damages for the death of a child is

entirely derivative of the child = s

cause of action against a tortfeasor.

See generally Diaz v. Westphal , 941 S.W.2d 96, 99 (Tex.

1997). If the child has no cause of action,

neither do the parents. It is not a

violation of the Equal Protection Clause to fail to provide parents with a

claim for the wrongful death of a fetus in utero when the Equal Protection

Clause does not prohibit a legislative body from withholding a wrongful death

cause of action from the fetus. There is

a distinction between the harm that a mother suffers from injury to part of her

body and the loss of a fetus. Edinburg

Hosp. Auth. v. Treviño , 941 S.W.2d 76, 79 (Tex.

1997); Krishnan , 916 S.W.2d at 481-82 .

The former is a direct cause of action that the mother has in her own

right, while the latter is a derivative claim.

We

therefore hold that the wrongful death and survival statutes do not violate the

Equal Protection Clause by prohibiting parents of a stillborn fetus from

bringing claims under them. [2]

III

Next,

we address the court of appeals =

holding that the trial court erred in granting summary judgment for the health

care providers, thereby prohibiting Tara Reese = s

separate cause of action for the damages she suffered as a result of her

doctors = alleged

negligence. 87 S.W.3d at 206 .

The

health care providers moved for summary judgment under both Rule 166a(c) and

Rule 166a(i). Tex . R. Civ . P. 166a(c), 166a(i). To succeed in a motion for summary judgment

under Rule 166a(c), a movant must establish that there is no genuine issue of

material fact so that the movant is entitled to judgment as a matter of

law. Tex . R. Civ . P. 166a(c). In deciding whether there is a disputed issue

of material fact, every doubt must be resolved in favor of the nonmovant and

evidence favorable to the nonmovant must be taken as true. Cathey v. Booth , 900 S.W.2d 339, 341 (Tex.

1995); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548-49 (Tex.

1985). Under Rule 166a(i), a

movant must establish that A [a]fter adequate time for discovery . . . there is no

evidence of one or more essential elements of a claim or defense on which an

adverse party would have the burden of proof at trial. @ Tex .

R. Civ . P. 166a(i); see also Johnson v.

Brewer & Pritchard, P.C. , 73 S.W.3d 193, 207 (Tex.

2002). To defeat a Rule 166a(i) summary

judgment motion, the nonmovant must produce summary judgment evidence raising a

genuine issue of material fact. Tex . R. Civ . P. 166a(i); Ford Motor Co. v.

Ridgway , ___ S.W.3d ___, ___(2004).

A genuine issue of material fact exists if the nonmovant produces more

than a scintilla of evidence establishing the existence of the challenged

element. Ford Motor Co. , ___

S.W.3d at ___; Morgan v. Anthony , 27 S.W.3d 928, 929 (Tex.

2000).

The

health care providers argued in their summary judgment motions that as a matter

of law a bystander cannot recover mental anguish damages in a medical

malpractice case. Additionally, the

health care providers claimed that Tara Reese failed to present any evidence

that she sustained legally recoverable damages resulting from the health care

providers = alleged

negligence. The trial court granted both

motions. The court of appeals reversed

the trial court, holding that Reese presented more than a scintilla of evidence

to support her claims against the health care providers arising from their

negligent care and treatment. We agree.

Reese

produced an affidavit from another obstetrician stating that her health care

providers failed to monitor her blood pressure or evaluate her tachycardia, and

that such failure fell below the legal standard of care. The obstetrician = s

affidavit is some evidence that Reese = s

doctors breached their legal duty to provide competent medical care to

her. See Krishnan v. Sepulveda ,

916 S.W.2d 478, 480 (Tex. 1995).

In

Krishnan , this Court held that mental anguish damages are recoverable

when a doctor = s medical

negligence causes injury, which includes the loss of a fetus. 916 S.W.2d at 480-82 . Although the hospital argues that there is no

evidence of any physical injury to Tara Reese A that

would not have otherwise occurred, @

we recognized in Krishnan that recovery may be had in this situation A even absent proof of physical injury @ other than the loss of the unborn

child. Id .

at 482. The elements of a mother = s claim include: (1) a breach of the A legal duty to provide competent medical

care to [the mother,] @

(2) that A proximately

caus[es] . . . the loss of her fetus[,] @

(3) A coupled

with the mental anguish resulting from the loss of an unborn child. @ Id . We stated in Krishnan , however, that

not all mental anguish resulting from the loss of an unborn child is

recoverable. Id. Specifically, we held that parents may not

recover A damages

for loss of society, companionship, and affection[.] @ Id .

In

Edinburg Hospital Authority v. Treviño , 941 S.W.2d 76, 79 (Tex.

1997), we expanded our holding in Krishnan . As in this case, the mother in Edinburg

Hospital Authority brought a claim against her doctor for mental anguish

resulting from negligent treatment that allegedly caused her child to be

stillborn. Id .

at 78. To prove her mental anguish

damages, she presented

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.

Id .

at 79. We held that the mother = s evidence related to her grief over the

loss of the fetus as a separate individual, but did not relate to damages

suffered as a result of the mother = s

own injury. Id . Because Krishnan was decided after the

trial in Edinburg Hospital Authority , we remanded the case to the trial

court in the interest of justice to allow the mother to present evidence of A mental anguish damages suffered because

of loss of the fetus resulting from an injury to the mother. @

Id .

The hospital suggests that Tara Reese only provided evidence

of her grief from the loss of her unborn

child. We disagree. Certainly, there is evidence in the record

that Tara Reese grieved over this loss.

While such grief may be non-compensable under our law, it is nonetheless

an expected, natural consequence of the loss of an unborn child, and it is not

surprising that Tara Reese = s

affidavit would reflect such grief. We

believe, however, that the affidavit also raises a fact question as to mental

anguish damages separate and apart from the A loss

of society, companionship, and affection. @ Reese described a A long

and painful delivery @

that was made even more psychologically traumatic because she had to experience

the delivery A knowing

[her] baby was dead. @

We conclude that this evidence of mental anguish suffered

during the course of Reese = s

medical treatment is sufficient to raise a fact question regarding compensable

mental anguish damages from her own injury.

See Krishnan , 916 S.W.2d at 482 .

Consequently, we affirm the court of appeals =

holding that Reese produced sufficient evidence raising material fact issues as

to whether Tara Reese suffered mental anguish damages for her own injury

sufficient to defeat the summary judgment motion.

* * *

For these reasons, we reverse the court of appeals = judgment in part and affirm in part. We render judgment that the Reeses take

nothing on their wrongful death and survival claims, and we remand Tara Reese = s individual medical negligence claim

to the trial court for further proceedings in accordance with this opinion.

____________________________________

Thomas

R. Phillips

Chief

Justice

Opinion

delivered: August 27, 2004

[1] In Parvin v. Dean , a case not

appealed to this Court, the court of appeals held that the law violated both

the United

States

and Texas Constitutions. 7 S.W.3d 264,

274 (Tex. App. B Fort Worth 1999, no pet.). The Parvin court wrote: A We perceive no rational or compelling

state interest that justifies the wrongful death and survival statutes' unequal

application to born babies while at the same time excluding viable but unborn

babies and the unequal application to their parents. @

Id. at 274. For reasons

we explain below, we reject the Parvin court = s equal protection analysis.

[2] In so holding, we join a number of other

jurisdictions around the country that have reached the same conclusion. See Marie v. McGreevey , 314 F.3d 136,

141-42 (3d Cir. 2002); Kandel v. White , 663 A.2d 1264, 1269 ( Md. 1995); Hernandez v. Garwood ,

390 So.2d 357, 359 ( Fla. 1980); Justus v. Atchison , 565 P.2d 122, 132 ( Cal. 1977).