The opinion
BURGESS, Justice,
dissenting.
I respectfully dissent. I express no opinion on the substantive issues discussed by the majority, but base this dissent solely on the belief that our Supreme Court did include the concept of viability in Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503 (Tex.1987) and thus this court is bound by that decision. I point out that Justice Kilgarlin, in his dissent, expressly stated: “Note, and strongly note, that the Leal court ‘reserved’ the very issue we have before us today, death of a viable fetus before birth.” Id. at 510-511 . [emphasis mine] Justice Kilgar-lin, in two other instances, speaks of viability: “the trend toward allowing recovery for prenatal injuries to a viable infant ... ”, Id. at 511 and “Currently, thirty-five states and the District of Columbia allow wrongful death actions to be brought on behalf of stillborn, viable fetuses.” Id. at 512 .
To further support my belief that viability was within Witty , I look to the original case, Witty v. American General Capital Distributors, Inc., 697 S.W.2d 636 (Tex. App. — Houston [1st Dist.] 1985). In a concurring and dissenting opinion, Justice Dunn stated: “Baby Witty has, for the first time, presented us with the issue of a child having the ability to survive outside the womb, who was wrongfully injured, and who died of those injuries prior to birth.” Id. at 643 . Furthermore, Chief Justice Evans, on Motions for Rehearing, stated: “the majority does not consider the viability of the injured child to be an issue.” Id. at 648 .
The requirement of a live birth was clearly announced in Yandell v. Delgado, 471 S.W.2d 569 (Tex.1971) and the issue of viability was contained in Witty, however, the Supreme Court continued to follow the Yandell rule.
In Tarrant County Hospital District v. Lobdell, 726 S.W.2d 23 (Tex.1987), our highest court stated in no uncertain terms: “This cause raises the issue of whether a wrongful death action can be brought under the Texas Wrongful Death Act, [citation omitted] when a viable fetus is negligently killed”, [emphasis mine] In a per curiam opinion, the court cited Witty, reversed the Fort Worth Court of Appeals and upheld the trial court’s granting of a motion for summary judgment on the grounds the wrongful death statute did not allow such a cause of action. The Supreme Court had an additional opportunity to carve a viability exception to the Yan-dell/Witty/Lobdell rule in Wheeler v. Yettie Kersting Memorial Hospital, 761 S.W.2d 785 (Tex.App.—Houston [1st Dist.] 1988, writ denied), but declined.
Consequently, I believe Witty and Lob-dell are dispositive and controlling, thus they require that we affirm the trial court. Since the majority does not, I respectfully dissent.