# Fort Worth Osteopathic Hospital, Inc. v. Reese

> Texas Supreme Court · August 27, 2004 · 47 Tex. Sup. Ct. J. 999

URL: https://www.frixlaw.com/law-library/cases/9512858

## Case

- **Full name:** 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
- **Court:** Texas Supreme Court
- **Decided:** August 27, 2004
- **Citations:** 47 Tex. Sup. Ct. J. 999; 148 S.W.3d 94; 2004 Tex. LEXIS 735; 2004 WL 1908319
- **Precedential status:** Published
- **Opinion:** Concurrence by O'Neill
- **Judges:** Phillips, Hecht, Owen, O'Neill, Jefferson, Wainwright, Brister, Smith, Schneider
- **Cited by:** 332 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9512858

## How later opinions describe it (automated extraction)

- explaining that to prevail on a no-evidence summary-judgment motion, the movant must allege there is no evidence of an essential element of an adverse party’s cause of action
- stating that both guarantees require similar analysis and treating both as requiring same outcome, given that party did not argue that Texas’s guarantee was broader or different
- explaining that to prevail on no-evidence summary judgment motion, movant must allege there is no evidence of essential element of adverse party’s cause of action

## Opinion text

*101 Justice O’NEILL,
concurring.
I agree with the dissent that neither the 8th nor the 24th Legislature intended to exclude from the wrongful death and survival acts a viable human fetus who dies before birth, and for reasons that Justices Kilgarlin and Gonzalez, and now Justice Smith, have expressed, Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503 (Tex.1987), was wrongly decided. See Krishnan v. Sepulveda, 916 S.W.2d 478, 488-90 (Tex.1995); Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 85-92 (Tex.1997). I am also sympathetic to the dissent’s general frustration with the doctrine of legislative acceptance in certain circumstances. But in this area, the Legislature has failed to act for well over a decade and a half even though the Court has continued to follow Witty and repeatedly invited the Legislature to clarify the statutory meaning if it thought the Witty court did not interpret the wrongful-death and survival acts correctly. See Krishnan, 916 S.W.2d at 179-80 ; Pietila v. Crites, 851 S.W.2d 185, 187 (Tex.1993) (per curiam); Blackman v. Langford, 795 S.W.2d 712, 74 .3 (Tex.1990) (per curiam); Tarrant County Hosp. Dist. v. Lobdell, 726 S.W.2d 23 (Tex.1987). The Legislature has now acted and, without wholly disavowing Witty , amended the statutory definition of “individual” to include “an unborn child at every stage of gestation from fertilization until birth.” Tex. Civ. Prac. & Rem.Code § 71.001(4). Under these circumstances, I agree with the Court that we are bound by Witty and therefore join the Court’s opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9512858. Public record. Not legal advice.