Edinburg Hospital Authority v. Treviño

present February counsel in 1995. The plaintiffs offered no evidence that the bank- EDINBURG HOSPITAL AUTHORITY ruptcies prosecution interfered with the Edinburg Hospital, General d/b/a they this suit.1 Nor did offer evidence of Petitioner, attempt to communicate with counsel about prosecution of this suit before December Kipp 1993. Jack Rich and William had al- Shirley TREVIÑO Oscar ready discharged bankruptcy been Treviño, Respondents. when the trial court dismissed and reinstated early yet this suit in they waited three No. 95-0939. years more to take further action. John Supreme Court of Texas. Kipp, plaintiff emerge the last from bank- ruptcy, year waited a to hire new counsel to Argued April 1996. pursue his claim. facts,

On these Decided Feb. 1997. we cannot conclude that the arbitrarily unreasonably trial court acted Rehearing April Overruled delays unreasonably when found that the prejudiced plaintiffs the defense and that the good

failed to show cause for reinstatement Mackie,

of the suit. See Koslow’s v. (Tex.1990). Further, by out-

lining the basis for its decision the initial by considering

dismissal order and evidence argument hearing in the on the motion reinstate, the trial court demonstrated

that it made these determinations with refer- guiding

ence to principles. rules and The order,

trial court’s when construed as a dis- prosecution

missal for want of based on lack diligence, does not amount to an abuse appeals

discretion.2 court of should adopted

have that construction and affirmed 944; Gough,

the dismissal. S.W. at

Garza, 323 S.W.2d at 156. Appellate

Under Texas Rule of Procedure grant applications Petitioners’ error, and,

writ of hearing argu- without oral

ment, judgment reverse the of the court of

appeals affirm the trial court’s order as

to the Petitioners. stay applies appear hearing. 1. An automatic under federal law at the venue Because we find brought against bankruptcy suits and claims justification sufficient dismissal for lack of debtor, brought but not to claims on the debtor's diligence, question we do not reach the of wheth- behalf. See 11 U.S.C. 362. appear support er the failure to could also dismissal. Kipps question sup- 2. Rich and the the evidence porting a dismissal based on their failure to Jeu, Dalrymple,

Kenda B. Marian C. Dean Davis, Austin, petitioner. Kallus, Henrichson, P. Ed-

Preston David McAllen, Franz, inburg, David Richard John Fleuriet, Schell, Harlingen, D. E.R. for re- spondents.

SPECTOR, Justice, opinion delivered PHILLIPS, Court, in which Chief Justice, HECHT, CORNYN, ENOCH, BAKER, Justices, joined, in OWEN and GONZALEZ, Parts and IV of which Justice, III, I, joined, and in and IV Parts ABBOTT, Justice, joined. which malpractice this medical case consid- er a mother and recover whether father anguish damages resulting from mental delivery jury a stillborn fetus. The found Hospital Authority, Edinburg Ed- d/b/a inburg Hospital, employees its General negligently had caused mother and father resulting anguish the loss fetus, the trial court awarded appeals court of affirmed. 904 both. The hold mother has S.W.2d 831. We that the negligence II. stated action but failed present adequate proof of mental Initially, we must determine Mora damages under this Court’s decision against asserted a cause of action valid (Tex. Sepulveda, Krishnan v. 916 S.W.2d 478 employees. and its Because the hos 1996). We hold also that neither the mother unit, pital governmental sovereign is a immu anguish nor the father is entitled to mental nity prevents liability Mora can show unless damages bystander as a to the loss of the property damage, personal injury, or death Accordingly, judgment fetus. we reverse the tangible “caused condition or use appeals, remanding part of the court of in personal governmental property or real rendering part. and would, private person, unit were it a be liable according

to the claimant to Texas law.” 101.021(2). Tex.Civ.PRAC. & Rem.Code I. petition, plead- In her Mora first amended Trevino) Shirley (formerly Mora and Oscar support ed two causes of action in of her expecting Trevino were their first child First, anguish damages. alleged mental she broke, spring of 1989. Mora’s water indicat- hospital’s that the treatment of her resulted labor, ing May the start of on 1989. For negli- and constituted the loss of her fetus reasons, unexplained day Mora waited a be- Second, gent anguish. infliction of mental admitting Edinburg fore herself to General alleged bystander at Mora that she “was a Hospital. Dr. the attend- Carl Gruener was infant,” witnessing that the death of her and ing physician delivery. for the great anguish. mental this event caused her After Mora had in the been sever- alleged against hos- She no other claims hours, al Dr. Gruener determined that labor pital employees or its in the trial court. progressing slowly was too and ordered the wrongful No cause of action for death ex Pitocin, drug administration of used to law; right isted at common to sue for augment began labor. Mora soon to hemor- wrongful “purely death is a creature of stat rhage, performed and Dr. Gruener emer- Witty Capital ute.” v. American Dis Gen. gency caesarean section. The fetus was (Tex.1987). tribs., Inc., stillborn. Trevino was with his wife in the Witty, explained In that the Texas hospital up until the time she was taken into Wrongful precludes recovery Death Act surgery, but he did not the actual witness loss of a fetus when there has been no delivery. holding live birth. Id. This was based on hospital, Mora Dr. sued Gruener and the language light of the Act viewed of the alleging negligent their treatment longstanding rights common law rule that the caused the stillbirth. Mora contended that contingent of a on live birth. fetus were hospital negligently the doctor and the moni- Similarly, at 505. there is no survival cause tored the administration of the Pitocin and negli of a or for of action for the loss fetus equipment. in- fetal heartbeat Trevino gent of a fetus not bom medical treatment tervened, claiming that he suffered mental Crites, 506; alive. Id. at see Pietila v. anguish bystander witnessing as a the events (Tex.1993); Yandell v. Del leading up to the stillbirth. Dr. Gruener (Tex.1971). gado, 471 With eventually settled with both Mora and Trevi- action, parents pre “are out these causes of ño before the trial. damages recovering for then- cluded from society, companionship, loss of and affection jury hospital employ- found that the suffered as a result of the loss fetus.” negligence hospital’s ees’ in the use of the Krishnan, 916 S.W.2d at 482. tangible personal property caused Mora’s Krishnan, anguish mental as a result of this Court addressed “wheth- Treviño’s anguish jury the stillbirth. The awarded Mora and er a mother recover mental $750,000 damages. damages each in The trial suffered because of the loss of her Treviño $250,000 injury damages resulting court each fetus from an to the mother reduced the alleged- physician’s Act. under the Texas Tort Claims which was caused Tex. 101.028(c). ly negligent mother.” Id. at treatment of the Civ.Prac. & Rem.Code room. added). that, furniture baby purchased be- (emphasis held We the fetus the loss of anguish damages are available also testified cause She they are generally, yesterday,” actions personal it was hurts like [her] “still of a a result when suffered as recoverable the funeral service clipping of she carries a injury to the woman negligently inflicted marriage her, deteriorated and that her Id. at the loss of her fetus.” “which includes This evidence of the fetus. after the loss pleaded that she suf- Mora 481-82. Because felt over grief that Mora relates including the loss personal fered a individual separate as a of the fetus loss legal resulting fetus from a breach her body. Krishnan part of her own not as her, stated a valid duty owed to she has clarify can today that a woman our decision of action. resulting recover mental negligence causes the loss Although negligent Mora has a treatment that personal against hospital body. the for the claim part as the woman’s of a fetus of fetus, losing in the she injury she sustained guidance provided not have the Mora did a cause of action as does not have a viable law, of in this area Boyles and Krishnan bystander for the loss of her fetus. We after the opinions were released since both in bystander of action adopted the had occurred. This Court trial in this case guidelines forth in a on set Texas based a new to remand for discretion broad Legg, 68 case. Dillon v. California See justice party a in interest of when trial the Cal.Rptr. 441 P.2d 912 69 Cal.2d wrong legal the may proceeded under have (1968), City Pas construed in Freeman v. of 603; Boyles, at theory. 855 S.W.2d (Tex.1988). adena, 923, 923 As 744 S.W.2d Byrd, v. 384 S.W.2d Title Ins. Co. American Kerr, by a Boyles in “[b]efore we stated (Tex.1964). therefore reverse 683 We recover, may she must estab stander he or appeals as to Mora judgment of the court of negligently inflict that the defendant has lish the trial part this of the cause to and remand injuries primary fatal on the ed serious or under the cause court for a new trial (Tex.1993). victim.” 855 S.W.2d recognized in Krishnan.1 action we hospital could not held hable for a because, un negligent to Mora’s fetus III. law, duty to established it does not owe a der Trevino next determine whether We Krishnan, a fetus that is not bom alive. See damages against anguish recover mental Yandell, 479; at at 471 S.W.2d intervention, hospital. petition In his by Additionally, cannot be a 570. Mora severe men alleges that he suffered Trevino personal injury. The stander to her own witnessing negligent anguish after to Mora tal hospital thus cannot be held hable wife, bystander Shirley Mora’s under a cause of action. Mora. Under treatment of his only cause of action must be for the Krishnan, legal duty viable to hospital no owes hospital’s neghgent that resulted treatment care to provide competent medical Trevino to personal injury to her. 482; at see or the fetus. 916 S.W.2d Mora Booth, 339, 342 Cathey also trial, sought prove At Mora to mental (Tex.1995). argues that he Trevino instead part by presenting evi anguish damages an recover mental permitted to should be preparations had dence that she made by hospital damages against the as guish baby: expectation the arrival of her she treatment.2 stander to Mora’s a room in her home had set aside dissent, that Justice allow the cause of action statute to Justice Gonzalez admonishes 1. In his failing wrongful death cause to create. to allow a Gonzalez seeks Court for at of action for the loss fetus. hospital him alleges owed also that the 2. Trevino purporting to His voluminous footnote 86-88. arising contractual from both his of care however, supporting position, his cite caselaw guarantor hospital relationship as the wholly inapposite. least 33 of the almost At Mora payment and the contract between Mora’s type for this of loss cases he cites allow solely third-party hospital, was the of which he and the wrongful death statute. The under a state Wrongful beneficiary. claims that Trevino not allow recov- Death Act does Texas committing negli- these contracts breached Witty, ery 727 S.W.2d at for the loss of a fetus. damages. to gence, therefore entitled up and he is change, to to it would be 506. If the law is by- Court, allegations from Treviño's are distinct Legislature, that These not this to rewrite Freeman, bystander alleges ably at Trevifio’s cause of action foreseeable.” injured he was because he witnessed the negligently administering nurses the Pitocin This Court has never considered whether timely failing administer anesthesia bystander malpractice can recover medical Mora. He also witnessed the “failure of the anguish damages. mental To recover dam- nursing personnel recognize signs pla- standard, ages bystander under the Dillon abruption cental as indicated on the contrac- sensory contemporaneous per- must show a Freeman, tion monitor.” Treviño also saw Mora bleed ception of an accident. See heavily Court, after some contractions and testified Superior S.W.2d at 924. In Ochoa v. bedpan Cal.Rptr. that he noticed blood clots in P.2d 1 her 39 Cal.3d (1985), thought Supreme Additionally, he were the fetus. the California Court deter- malpractice plaintiff mined that a medical did alleges Treviño mental as a result not need to witness a sudden and brief occur- waiting undergo emergency for his wife to rence to recover emotional caesarean section resulted the still- 666-67, bystander. Cal.Rptr. Id. 216 present birth. Treviño was not for the still- Instead, P.2d at 7. the court held that the birth, however, and learned of it from a bystander had stated a valid cause of action surgery. doctor after the “when there is observation of the defendant’s bystander may A recover [patient’s] conduct and the and con- anguish damages under Texas law after wit temporaneous part [on awareness nessing a close relative suffer a traumatic bystander the defendant’s conduct or that] injury negligent because of a defendant’s ac causing [patient].” lack thereof is harm to the Freeman, tion. See 744 S.W.2d at 923. This 668, Cal.Rptr. Id. 216 at 703 P.2d at 8. This recovery permitted recognize because we permitted plaintiff relaxed standard the in that there are certain in a situations which anguish damages Ochoa to recover mental bystander tortfeasor will owe of care requested repeatedly after she had that a beyond son, public general. owed to the in only doctor examine her to have her sick bystander requests See id. at 924. A who witnesses a ignored and her son’s condition de- negligently injury plaintiff teriorate. Because the Ochoa inflicted serious or fatal deteriorate as a witnessed her son’s condition recover for mental if: hospital’s direct result of the defendant con- (1) bystander The was located near the duct, and because she connected her son’s scene of the accident as contrasted with conduct, injury hospital’s with the the court away one who was a distance from it. bystander found she had stated valid (2) The shock resulted from a direct emo- Jersey of action. has followed New impact upon bystander tional the the standard for California’s lead and relaxed sensory contemporaneous observance bystander recovery malprac- in the medical accident, learning as contrasted with Poblete, 139 tice context. See Gendek v. N.J. the accident others after its occur- (1995) 291, (allowing 654 A.2d medical 970 rence. malpractice bystander recovery when mal- (3) bystander The and the victim were practice was connected with an related, closely as contrasted with an ab- bystander suffered severe emotional dis- any relationship presence sence of or the tress). only relationship. a distant however, jurisdictions, Other have refused Freeman, Dillon, (citing 744 at 924 recognize bystander cause of action 80, 920); 441 Cal.Rptr. 69 P.2d at see also malpractice the likelihood of hos medical Boyles, pitals’ substantially curtailing patient 855 S.W.2d at 597-98. These factors visita however, See, interpreted flexibly, prevent bystander e.g., are to be tion to suits. 392, Maloney Conroy, the court should determine each case v. 208 Conn. 545 A.2d (1988). 1059, 1064 “whether the accident and harm was reason- Other courts have decided ments, pass alleged on their merits. stander cause of action and were not need not Lawyers pleadings 45(b); See Stone v. Title Ins. or tried consent in the trial Tex.R.Civ.P. 183, (Tex.1977). argu- Corp., 186-88 court. Treviño therefore waived these 554 S.W.2d guidance in the trial court with bystanders provide recovery those to allow Con- case. See Palestine of Mora’s danger and suffer retrial within the zone who are Perkins, tractors, v. Inc. a result of a reasonable distress as emotional (Tex.1964); Bailey, 15 S.W.2d Parker v. See physical to themselves. fear of a (Tex. holding App.1929, Hosp., Comm’n Mem. v. Glennon Asaro Cardinal (Mo.1990); approved). Vaillancourt Inc., Vermont, Hosp. Vt. Medical Ctr. doctor, case, Mora’s trial of this Before the (1980). Because medical 425 A.2d $44,000. Gruener, Mora for settled with Carl rarely involve a situation malpractice cases against jury verdict Mora then obtained inju bystander physical would which the fear $750,000. The trial authority for hospital effectively ry, danger standard the zone verdict the settlement court offset the bystander recovery in these cases. precludes $706,000 amount was this amount. Because Asaro, at 600. There are liability authority’s greater than by jurisdictions that have limited still other Act, the trial the Tort Claims limit under malpractice in medical stander recovery down reduced Mora’s court then holding hospital has no eases authority’s lia- it determined what nonpatients. duty of care to See O’Hara it for that maximum bility cap and held liable Hosp., 137 Ill.2d 148 Ill.Dec. Holy Cross Authority ar- Edinburg Hospital amount. 712, 714, N.E.2d first trial court should have gues that ap- the better-reasoned We believe liability limit the verdict down reduced bystander recovery in proach permit is not to amount, thus and then offset the settlement very malpractice nature medical cases. liability authority holding liable for its traumatic to the of medical treatment is often dis- cap the settlement amount. We minus procedure layperson. Even when a medical agree. patient, may proves to be beneficial to the ordinary bystander shock the senses of the Legislature enacted the Before bystander may A not who witnesses it. Act, Tort Claims & Rem.Code Tex.Civ.PRAC. distinguish treat- able to between medical liability was limit chapter governmental helps patient that the and conduct that ment R. functions. See Joe proprietary ed to physician’s primary is harmful. A is to III, Thomas Murto Govern Greenhill & V. patient’s patient, the not to the relatives. 462, 462 Immunity, 49 Tex.L.Rev. concerns, policy we hold Guided these Legislature the Tort The enacted bystander pre- that cause of action Texas’ provide waiver of Act to a limited Claims bystander in medical mal- cludes 467; immunity. Id. at see Tex.Civ. sovereign practice cases. § Act’s 101.025. The Prao. & Rem.Code not doubt that Mora’s labor and the We do immunity in at two is limited least waiver of subsequent stillbirth were difficult and trau- types that can be ways: by the of claims Trevino, matic for but Treviño claimed unit, Tex. governmental brought against a injured bystander he as a who witnessed was 101.021, a & Rem.Code Civ.PraC. we do malpractice upon his wife. Because damages. Id. at 101.023. Section cap on bystander recovery in medical recognize plaintiffs not circumscribe a 101.023 does cases, Trevifio has failed to state malpractice Instead, injury. given recovery for a total accordingly re- of action. We a valid cause government’s extent of the delineates the appeals as judgment of the court of verse the immunity liability for that waiver of to Treviño. University at El Paso injury. Texas Nava, (Tex.App. — El IV. writ). plaintiff a suffers Paso no When falls within the Tort Claims a settle next consider whether

We Act, agreed has to hold Legislature applying be offset before or after ment must dollar up specified to a government Al liable damages cap. Tort Claims Act’s settled plaintiff a have amount. That is not essential though resolution of this issue not affect the ease, does it with some defendants disposition of this we address to our addition, PHILLIPS, sovereign immunity Chief Jus- degree of waiver of dressed. ENOCH, BAKER, Justices, tice, OWEN Legislature prescribed. has in, opinion join I Justice for SPECTOR’S Thus, while the dollar amount of settle- GONZALEZ, Justice, joins only the Court. un- must be reduced from the verdict ment in Parts and IV of Justice SPECTOR’S rule, Stewart Title der the “one satisfaction” judg- opinion and dissents from the Court’s Sterling, Co. v. 5-7 Guar. ABBOTT, Justice, joins only in ment. Parts (Tex.1991),the settlement does not affect the I, III, opinion and IV of Justice SPECTOR’S govern- maximum dollar to which the amount judgment. in the and concurs Court’s immunity. agreed ment to waive its A has appeals court of held that under the The one tortfeasor should thus be settlement with Act, hospital authority created Tort Claims against govern- offset the verdict before subject Hospital Authority Act is under the statutory mental unit is reduced to the maxi- liability municipalities rather to the limits for rule, logical contrary mum. A taken to its gov than the lower limits for units of local end, recovery against completely bar would at 840-841. The court ernment. tortfeasing municipal hospital authority when holding Huckabay appeals’ conflicts with plaintiff settles with defendant for another Irving Hospital Authority, hospital authority’s damages more than the by agr.). (Tex.App. dism’d writ cap. Such a result cannot be the intent of — Dallas issue, consid We consider this as the Court remand, Legislature. On should Mora question of the settlement offset ers against be awarded verdict opinion, provide additional “[t]o Part IV of its authority greater statutorily-imposed than its guidance upon to the trial court remand.” limit, liability Dr. the settlement Gruen- disagree with the court of Ante 81. We er must be deducted from the verdict before appeals. the trial court reduces the verdict

statutory limit. provides Tort Act for a limited Claims immunity. governmental One limit

waiver V. liability. the dollar amount of The limit is on changed the Act was alleged negligent of her over time. When Mora treatment fetus, single it contained a passed first that resulted in the loss of her as well govern- liability all “units of bystander; only limit on the as her own as a “Liability shall be limited cognizable in ment”: hereunder former is a cause of action $300,000 $100,000 failed, however, per person prove men- Texas. Mora bodily injury single or death.” damages in occurrence tal accordance with our R.S., 292, 14,1969, May Leg., ch. today. Act of 61st opinions in Krishnan and Treviño 874, 2, 3, In §§ 875. bystander 1969 Tex.Gen.Laws claimed to be a to the medical a limit of the Act was to add allegedly upon amended malpractice committed his “$10,000 injury for wife, single for occurrence of action which is not a valid cause April Act of property.” to destruction of hospital. accordingly reverse or against the We 1, II, 1973, R.S., 50, § Leg., 63rd ch. judgment appeals. of the court of We nothing Tex.Gen.Laws 77. judgment that Treviño take render claim, bystander on his and remand to In the Act was amended distin- trial in portion Mora’s of the case for new governments, and local guish between state justice. the interest $250,000/$500,000 higher cap on provide a bodily injury liability for government state HECHT, Justice, joined concurring, by death, damage property and to set the and GONZALEZ, PHILLIPS, Justice, Chief and governments cap for both state and local ABBOTT, ENOCH, OWEN, BAKER and $100,000. government was defined as State Justices. board, commission, department, agency, “an GONZALEZ, office, authority PHILLIPS, Justice, than a district or other Chief XVI, 59, OWEN, ABBOTT, of the ENOCH, under Article Section BAKER and created (1) Constitution, by created join making it that: was opinion, and I in this Texas Justices state; a statute of this opinion the issue ad- the constitution or of the Court on 101.023(b) “Except provided as (2) begin, jurisdiction.” Act of and has statewide (c) (c),” as 530, 1, adding and subsection 28, 1988, R.S., Leg., eh. Subsection May 68th the Act follows: 3084. 1988 Tex.Gen.Laws. Practice part of the Civil municipality recodified as under this (c)Liability

was 1985, 17, May Act of in a money damages and Remedies Code. limited to chapter is R.S., 959, Leg., $250,000 per- ch. 1985 Tex.Gen.Laws 69th for each amount of maximum government definition of state $500,000 single 3242. The occur- for each son and 101.001(5) $100,- to section injury was moved verbatim and bodily for or death rence Code, unchanged. it The where remains single for for each occurrence limiting liability section provisions became property. or destruction 101.023, follows: 2, C.S., 3,1987, Leg., 1st eh. Act of June 70th (a) un- Liability government of the state 37, effect, 3.03, 48. In 1987 Tex.Gen.Laws money chapter dam- der this is limited separated municipalities Legislature $250,000for ages in amount of a maximum government. local This from other units of $500,000 single person and for each each pack part of a “tort reform” legislation was bodily injury or and

occurrence for death Bill 5. age enacted as Senate $100,000 single for in- for each occurrence “municipali appeals court of held jury property. to or destruction 101.023(c) in ty” in the context of section (b) Liability govern- of a unit of local under the hospital authorities created cludes chapter to mon- ment under this is limited Act, Authority chapter 262 of the Hospital damages in amount of ey a maximum (The Safety also Code. Code Health $100,000 $300,000 person for for each 261, municipal hospitals chapter authorizes single bodily injury or each occurrence for 263, chapter county hospi county hospitals in $100,000 single for occur- death and each 264, joint municipal chapter tal authorities prop- rence for to or destruction of 265, county hospitals chapter and hos erty. pital in subtitle D. We consider districts 262.) chapter only hospital authorities under R.S., May Leg., 69th ch. Act of by permitted Hospital authorities were first 3242, 3303. 1985 Tex.Gen.Laws May Act of Legislature state and its subdivisions creat While the R.S., Leg., ch. 1957 Tex.Gen. 55th purely public purposes are immune ed for 1379, formerly ann. Laws Tex.Rev.Civ.Stat. actions, liability all a munici from their 1976). (West authority A art. 4437e pality governmental unit created or other “body politic corporate” that “does is a only partly public purposes is immune by taxing power”, created ordinance not have liability only governmental for its con & municipalities. Tex.Health one or more duct, City proprietary conduct. not for its governed Safety § 262.003. It is Code Posnainsky, 62 Tex. Galveston directors, 262.011,appointed— §id. board of Prior to 1987 the line between two-year terms exceptions with certain —for proprietary municipality’s governmental and body municipality governing judicially In 1987 the conduct was drawn. bodies, if more (governing that created amended to authorize the Constitution was § A hos municipality), id. 262.012. than one power, Tex. Legislature to exercise this sued, authority may id. pital sue and Const, 11, 13, Legislature § did art. and the 262.021(b)(2), own, operate and main § Tort by adding section 101.0215 to the so 262.022,may § issue reve hospitals, id. tain 3, 1987, Leg., Act of 70th Claims Act. June 262.041, §id. purposes, to fund its nue bonds 2, 3.02,1987 C.S., § Tex.Gen.Laws 1st ch. power of eminent do may exercise the and all Legislature defined almost 47-48. The a Property as if it were under the Code main municipality governmen functions of a as the §id. 262.028. municipal corporation, tal, immunity shrouding from thus them with history purpose of Sen- Nothing in the liability. exchange In for this added Id. Legislature in- suggests that the lia ate Bill 5 protection, Legislature increased the the hospital liability caps on to raise the bility bodily injury and death liabili tended limits on municipal- it raised them on by amending authorities when ty municipalities section special, pur- unit a purpose governmental ities. The of Bill 5 was to limited Senate municipalities greater certainty authority. give pose, hospital as to the a Three stat- like liability. by of their It did so reclassi extent municipalities hospital districts utes list fying many municipality’s proprietary governmental separate entities. Tex.Civ. functions —for which it had unlimited liabili 9.002(b); § Prac. Tex.Health & & Rem.Code ty governmental functions —for which its 61.002(7); Safety Tex.Loc.Gov’t Code Code —as liability by Act. is limited the Tort Claims Many § 271.021. other statutes list munici- § In Tex.Civ.Prac. & Rem.Code 101.0215. generally. palities separately from authorities exchange, Legislature the raised the limits of 419.021(4), §§ E.g., Tex.Gov’t Code 101.023(e). liability. § municipalities’ As 431.035(b), 431.056(a), 441.031(3), 431.045(b), result, municipalities enjoyed immunity 810.001(1), 441.151(8), 554.001(2), 609.001(6), though more of their their functions even 2254.002(1); 2251.001(4), 2252.001(2), Tex. liability exposure immunity maximum when 773.003(17); Safety § Tex. Health & Code municipalities, was waived increased. Unlike 22.001(6), 92.002(5); §§ Tex.Loc. Lab.Code hospital governmental authorities have 201.003(7), 201.007, 271.003(4), Code Gov’t always functions and thus have been immune 391.002(1); 271.903, Tex.Rev.Civ.Stat.Ann. actions, liability except from for all their 1(5) (Vernon 601i, § Supp.1996). art. So con- by immunity the extent is waived the Tort sistently municipalities do the statutes treat Irving Act. Health Claims See Classen separately authorities it is most (Tex.1995); Sys., care 898 S.W.2d 300 Childs unlikely Legislature the should have Auth., Hosp. v. Greenville 479 S.W.2d 399 intended to treat them the same one stat- (Tex.Civ.App. ref'd writ — Texarkana to the con- ute absent some clear indication n.r.e.). Hospital authorities therefore could trary. can be No evidence of such intent proprie not benefit a reclassification Bill found Senate tary governmental. functions as If Senate hospital Bill 5 raised the on authorities’ Perhaps persuasive limits indication of the most liability, giving it did so them the legislative without 262.035 intent is found section immunity it same benefit broader Safety That stat- of the Health and Code. gave municipalities. unlikely (Act It that the ute, May enacted in 1993 Legislature this without would have done R.S., Leg., ch. 73rd Tex.Gen.Laws comment. 2068), “applies only authority to an created 350,000 county population with a of at least holding appeals The court of based its on hospital in which a district is not located.” municipality hospital control a the has over 262.035(a). Safety Tex.Health & Code creates, authority dependency and the (Seven Paso, Bexar, Dallas, El counties — authority hospi- “A municipality: the on the Tarrant, Harris, Hidalgo, Travis have authority municipality, tal is formed 350,000 population. Dallas more than governed by appointed by that mu- directors News, Morning Almanac 133-283 Texas subject nicipality, and to dissolution them, Hidalgo appears It that two of municipality. ability It no to raise mon- Travis, hospital presently do not have ey through taxes.” 904 S.W.2d at 841. districts.) a munici- The statute authorizes Thus, concluded, hospital authori- the court hospital facilities pality to lease a and other ty municipality “is an and is extension ” municipality to a au- owned government.’ a ‘unit of local Id. But event, municipality has thority. In that municipality interrelationship between a authority than it would more control over the hospital authority and a does not lessen the municipal- example, For have otherwise. separate. fact that the two entities are power appoint all di- ity may retain the “municipality” Local Government Code notwithstanding authority, rectors of the city. means Tex.Loc.Gov’t Code 262.012, 1.005(3). and if exceptions set out section chapter § In 29 of the Government “ power, may it municipality retains this incorporated the ‘municipality’ means an Code any town, time for cause. remove member city, village.” or Tex.Gov’t Code (c). 262.035(b)(1), authority must § The § Id. 29.001. are not aware of an instance We municipali- specified on the “municipality” perform to describe a services when is used ABBOTT, Justice, concurring. ty’s and cannot them without behalf eliminate municipality’s approval. Id. the I, III, join of the Court’s I Parts and IV 262.035(b)(2), authority cannot The join I also Hecht’s concur- opinion. Justice management hospital for the contract of holding Edinburg Hos- opinion that the ring And au- municipality’s the consent. without Authority government pital is unit of local thority employees in the mu- participate liability by sec- subject imposed to the limits employee nicipality’s plans. benefit 101.023(b) the Practice tion of Texas Civil join I Part II of Remedies Code. do not 262.035(d) Nevertheless, expressly section Instead, opinion. for the reasons the Court’s purposes provides that for the Tort Claims in Part I of articulated Justice Gonzalez’s hospital subject municipal authority “a to Act dissenting opinion in and in Justice this case government is a unit of this section local Kilgarlin’s Witty American Gen. dissent 262.035(d). It is municipality”. not a Inc., Distribs., 503, 506 Capital 727 S.W.2d implausible Legislature that the would treat (Tex.1987), I be to overrule would inclined independent hospital the more authorities wrongful Witty recovery and allow for the municipalities, hospital but authorities However, of a fetus. the Trevifios death subject greater municipali- are control any argument to this Court have not made government. ties as other units of local The According- Witty should be overruled. least hospital result would be authorities arguments ly, presented the to us based on municipally still hospitals like owned would judg- parties, I concur in the the Court’s subject liability caps to the for those ment as to Part II. hospitals, hospital while authorities most like municipally hospitals owned would not be. Justice, GONZALEZ, dissenting. indication There is no in the statutes that the Legislature intended this result. I join I in Parts of the Court’s and IV However, join I do opinion. the remain- argue hospital The Trevifios that to treat a First, for opinion three reasons: der authority government as a unit of but a local harsh, perpetuates antiquated, the “born hospital municipally municipality, owned aas rule that allows alive” subjecting liability caps them to different wrongful if the child death child Act, Tort under the Claims denies the Trevi- my opinion, the womb. there survives I, equal rights in fios violation of Article whether be no difference in tort law should Section 3 of the Texas Constitution. just just child’s death before or the occurs rejected argument a similar Court Guillo I the after birth. would correct the errors ry Authority, Houston v. Port Wrongful construing made in Court (Tex.1993): governmental unit “one Witty v. American General Death Statute immunity cannot be denied the to which it Distributors, Inc., Capital simply otherwise be would entitled because (Tex.1987), hold that progeny and its Legislature immunity an waived for moth- Edinburg owed General governmental may disagree other unit. One father, Second, er, baby. and the Legislature, choices with the made full-term, perpetuates the fiction that a Court deny hardly can choose.” power but one its glob of pre-birth baby nothing more than a body and Legislature’s part Nor we infer that is of the mother’s will tissue legal I worthy protection. possession of discretion that it has acted thus not While arbitrarily allowing Mrs. irrationally, especially judgment when concur in the Court’s I logical explanation apparent. negligence, cause of for its action is Trevifio a action reasoning. Fur- Legislature disagree to us that intended It is clear Court’s thermore, only municipalities also Trevifio and towns —to be would allow Mr. —cities subject negligence to higher liability under section a cause of action for limits assert 101.023(c) Thus, anguish he the Tort for the mental Claims Act. recover baby’s to be as a result of his unborn hold that authorities continue suffered theory. death, meaning though bystander not under government of local units within 101.023(b) Third, in Justice Act. stated of section the Tort Claims reasons 86 90, that allows a cause of action concurring opinion, 941 at Death Statute

Hecht’s S.W.2d Edinburg Hospital damages “arising Authori- from an that I would hold subject ty government a unit of is local causes an individual’s death.” Tex.Civ.Prac. by 71.002(a). bodily injury liability imposed However, limits sec- Witty, in & Rem.Code 101.023(b) tion of the Texas Civil Practices interpretation erred in our of the statute and Remedies Code. precedent abdicating our ignoring perpetuates responsibility in a manner that I. Witty, inequity. See 727 S.W.2d 606-12 perpetuate continues to the flaw Court J., (Kilgarlin, dissenting). Witty, we also jurisprudence holds that in this State’s which ignored maxim that court should “[t]his wrongful parents cannot recover legislative prior not be bound inaction child. Krishnan v. death of their unborn has traditional in an area like tort law which (Tex.1995); 478, Sepulveda, 916 S.W.2d 479 judi ly developed primarily through the been (Tex. Crites, 185, Pietila v. 851 187 S.W.2d Schindler, process.” v. 651 cial Sanchez 1993); Langford, 795 Blackman v. S.W.2d (Tex.1983). 249, 252 742, (Tex.1990); Witty v. American Gen. 743 law, rights of a human At common Distribs., Inc., 503, Capital 727 S.W.2d 506 being despite its unborn status. As existed (Tex.1987); County Hosp. Dist. v. Tarrant Blaekstone stated: Sir William (Tex.1987). Lobdell, 23, I 726 23 would not continue to follow this wish we contemplation begins ... of law as Life join anachronistic rule of law and instead infant is to stir soon as an able jurisdictions overwhelming majority of quick if a woman is mother’s womb. For recognize some form of action to recover her, child, anyone and ... beat with damages for an child’s death.1 unborn whereby body, the child dieth her child; this, of a dead she is delivered other The Court considers what states murder, though [ancient] was regard, have done in this and concludes that in- manslaughter_ An law homicide or up Legislature it is to our to create a cause womb, supposed is fant ... the mother’s wrongful of a fetus. of action for the death many purposes. It to be born for agree law 941 S.W.2d at 79 n. 1. legacy, or a capable having surrender principle, Legislature already but It job. Wrongful copyhold estate made to it. done its It has enacted a 838, Rankin, (1949); (1994); N.W.2d 841 Terrell v. 1. See Tenn.Code Ann. 20-5-106 Wade v. 38 States, 1573, 126, (Miss.1987); (D.Haw. F.Supp. 127 Connor v. 745 1579 511 So.2d United Co., 89, Feld, 1480, (Mo.1995); 1990); Espadero F.Supp. 92 v. 649 1484 Monkem Jett, 153, 730, Univ., (D.Colo.1986); Strzelczyk 870 P.2d v. 264 Mont. Simmons v. Howard 323 527, 529, (D.D.C.1971); (1994); Yup, F.Supp. Nev. 458 P.2d Eich v. Town 733 617, White v. 85 529 MacDonald, Shores, 354, 95, (1969); Poliquin v. 101 300 So.2d 358 623-24 293 Ala. Gulf 104, 249, (1957); (1974); Superior 251 v. v. Court Marico N.H. 135 A.2d Salazar Summerfield 150, 826, 712, 467, County, Hosp., 619 P.2d pa 144 Ariz. P.2d 724 St. Vincent 95 N.M. 698 Wortman, Markiewicz, (1985); Conn.Supp. (App.1980); 320 N.C. DiDonato v. Hatala v. 26 830 489, (1987); 358, 406, 423, (1966); Hopkins Worgan v. v. 358 S.E.2d 495 224 A.2d 407-08 (N.D.1984); 557, McBane, 862, Ferrara, Inc., Greggo 865 Wer 128 A.2d 558 359 N.W.2d & 45, Sandy, 476 (Del.Super.Ct.1956); ling St.3d N.E.2d Greater Southeast Commu v. 17 Ohio Olson, 394, 1053, (1985); Williams, nity Evans v. 550 P.2d Hosp. v. 482 A.2d 397-98 1056 570, 924, Baldazo, (Okla.1976); (D.C.1984); Libbee v. Permanente 103 Idaho 651 927-28 Volk v. 636, Clinic, 258, (1974); 11, Sutkus, 336, (1982); P.2d 640 145 Ill.2d 268 Or. 518 P.2d 15 Seef v. 199, 1085, Levin, 594, 510, (1991); Pa. 501 A.2d 511 Amadio v. 509 164 Ill.Dec. 583 N.E.2d 20, Sears, 487, (1985); Presley Newport Hosp., Ind.App. v. 117 R.I. 277 N.E.2d 1089 Britt v. 150 Inc., 177, 748, (1976); (1971); Wood- Way, A.2d 754 Fowler v. Rose 333 365 26-27 Dunn v. 42, ward, 608, (1964); 830, (Iowa 1983); S.E.2d 45 v. Man 244 S.C. 138 N.W.2d ion, 833-34 Hale Farms, 787, 143, 1, (1962); Maple 543 N.W.2d Mitchell Wiersma v. 189 Kan. 368 P.2d 3 Leaf Vaillancourt Couch, 901, (S.D.1996); v. Medical Ctr. (Ky.1955); Danos 792 v. 906 92, 138, (1980); Pierre, 1981); 633, (La. Hosp., A.2d 95 139 Vt. 425 St. 402 So.2d 639 State v. 597, 266, Hanson, Sherman, 179, 537 P.2d A.2d Moen v. 85 Wash.2d Odham v. 234 Md. ex rel. 671, Sartin, Lines, Inc., (1975); 71, (1964); Farley 195 W.Va. Greyhound v. v. Mone 522, (1995); (1975); Kwaterski State Farm S.E.2d 368 Mass. 331 N.E.2d Co., Morse, Wis.2d 148 N.W.2d Mut. Auto. Ins. 385 Mich. 188 N.W.2d O'Neill Corniea, (1971); 229 Minn. Verkennes v.

87 it; unborn child is existence assigned and it is nized that an guardian have conception.” Keeton et moment of [its] an limited to enabled to have estate use, AL., limita- and to take afterwards such THE LAW OF KEETON ON PROSSER AND (5th 1984). tion, actually can if it were then born. at 367 ed. One as Torts life, purpose of meaning and debate the Blackstone, Commentaeies 1 William under con protecting, but what life is worth *126-26. standards, beyond it is temporary scientific rights Legislature has restricted the Our being from dispute that fetus is a human pre-born baby protection under our conception.2 It can be noth the moment of defining specifically criminal law state’s Klasing, an ing The Death Un else. See being has been “individual” as “a human who Jurisprudential Inconsistencies born Child: bom and is alive.” Tex.Penal Code Homicide, Death, Wrongful Criminal 1.07(26); State, v. 890 S.W.2d Collins Pepp.L.Rev. Cases, 22 974 Abortion pet.). (Tex.App. Paso no 897-98 — El (1995). weeks, By baby has its own eight However, context, limitation a civil no such heart, beating organs, external fea internal regard Wrongful Death exists with tures, genetic unique and a code. See Reece Therefore, nothing precludes us Statute. AL., THE ANDMOTHER ET MEDICINE OF FETUS Witty overruling progeny and its (1992); 43-44,48, 53-54,117 et Harrison al. the errors our Court made in those correct (2d 1990). 43 ed. Be Patient The Unborn Kerr, Boyles v. 855 eases. See heart, brain, organs, and sides the internal (Tex.1993) (overruling 595-96 St. Elizabeth limbs, clearly part of the wom which are Garrard, (Tex.1987) Hosp. v. 730 S.W.2d 649 body, parts such as the an’s there are other interpretation due to its erroneous uniquely part that are of the umbilical cord step earlier case and it was out of because Cunningham baby’s body. al, et Williams jurisdictions); most American Moser v. 1993). (19th Human 137 ed. Obstetrics (Tex. Corp., U.S. Steel 676 S.W.2d may embryos removed from the uterus 1984) (overruling Wylie, Reed v. implanted surrogate in a mother who is (Tex.1980) Guinn, and Acker v. baby full then able to deliver a at term. See (Tex.1971) uncertainty S.W.2d 348 due to the al, generally, Scott et Obstet Danforth’s determining title to minerals that resulted 1994). Gynecology (7th 739-55 ed. riCS and Sanchez, cases); from those 651 S.W.2d at Thus, legal fiction “it to extend the is absurd Sons, (overruling Inc. 251 n. J.A Robinson part ‘a ... that an child is unborn (Tex.1968) Wigart, 431 S.W.2d 327 until the fetus is viable.” mother’s bowels’ cases). related Lawson, (Mo. Rambo 1990) (Holstein, J., dissenting). I therefore

II. reject within the the nonsensical view that unborn child realm of Texas tort law dead technology, in medical Because advances nothing, injured child born is worth but an begins longer it is no debatable that life damages. See alive sue and recover Legal recognized before birth. scholars have J., concerned, (Kilgarlin, at 507 dis Witty, much: far as “So Supreme Court senting). As the Louisiana at the time of the tortious act is existence necessary, authority long recog- wisely stated: medical present the moment of Excerpts together). gamete female Human fertilization, single cell marked the unique individual. scientific view that a cell called or gamete development begins from medical textbooks illustrate sperm (spermatozoon) This conception: process beginning highly specialized, totipotent oocyte zygote during baby’s (Gr. (ovum) each of us as a zygótos, conception which a male unites life to form begins with a yoked or at Moore ed. Krieger, unique bom has contributed its tributed its 23 born before establishing In the first somes. The result 1993). & again. Persaud, The Human individual, pairing, and unlike chromosomes, necessary unlike Developing Reproductive is the chromosomes, spermatozoon total of 46 chromo- any conception of a and the Human 14 that has been will ever be System has con- thus oocyte (5th re- trend,” again and should do so now. parents of a child who

The loss normally Thus, I and Mrs. Trevi- otherwise would have been bom would hold that Mr. same, substantially the tort- is whether a of action to recover ño can assert cause to be bom feasor’s fault causes the child un- damages wrongful death of their being shortly or to die after born dead sym- forcing plaintiffs and born child without alive, and a cause of action for the loss ways pathetic courts to look for creative event, recognized in at should be either and the fictions get around this harsh law specific legislation in least the absence has created. our Court Moreover, contrary expressing a intent. a recognize a of action decision not to cause III. when the child is born dead would benefit Additionally, agree while I with the Court the tortfeasor who causes a more serious Mr. Treviño nor Mrs. Treviño that neither injury, since the tortfeasor would have to bystander, a I do not can recover as damages if a child to pay his fault causes Mr. that this conclusion should bar believe disabled, not have to be bom but would recovery. of a Treviño’s In the absence pay any damages prenat- if his fault causes action that would wrongful death cause of al death. to recover for the allow fathers and mothers (La. Pierre, v. 638 Danos St. 402 So.2d children, I would loss of their unborn hold 1981) (on (footnote omitted). rehearing) negli- Treviño can recover under a that Mr. ways. of our We should admit the error theory duty him gence based on the owed to judicious precedent reconsideration of “[A] baby. the father of the unborn as threatening public in cannot be as faith judiciary to a rule as continued adherence a doc- pregnant woman establishes When reason_” unjustified Moragne v. relationship physician tor-patient with Lines, Inc., 375, 405, Marine 398 U.S. States delivery baby, prenatal care and 1772, 1790, 90 26 L.Ed.2d 339 S.Ct. duty to the mother and doctor owes a of care application not let mechanical We should baby. Delgado, Yandell v. 471 S.W.2d prevent overruling us from of stare decisis (Tex.1971) duty (creating a to not 570 Witty wherein our earlier decisions such baby). There- injury upon inflict an unborn erroneously meaning we determined fore, reality, the unborn child is the doctor Department statute. See Monell v. Soc. hospital’s patient.” “second See Pritoh- Servs., 2018, 2038, 658, 695, 436 U.S. 98 S.Ct. (17th ed. XÍ AL., ARD ET WILLIAMS OBSTETRICS (1978) (holding munici- 56 L.Ed.2d 611 1985). Krishnan, However, in the Court palities “persons” are under U.S.C. there is no doctor- concluded that because subject liability, overruling Mon- and are an obstetrician patient relationship between Pape, roe v. 365 U.S. 81 S.Ct. child, duty no and the father of an unborn (1961)). so L.Ed.2d 492 We have even done Krishnan, 916 to the father. S.W.2d owed In Leal v. particular in this area of the law. wrong and serves 482. This conclusion is Inc., Gravel, C.C. Pitts Sand & myth only perpetuate that a father (Tex.1967), par- this Court held anguish because of not suffer mental does ents of a viable infant bom alive have child, and it amounts of his unborn the death Wrongful Death of action under the Statute Id. at 483 gender discrimination. to unlawful injuries baby if later dies from inflicted (Gonzalez, J., dissenting). that the believe process, overruled while in útero. In the we recognize duty to the view is to better Jordan, Bottling Magnolia Coca Cola Co. father. (1935), citing one 124 Tex. 78 S.W.2d Kerr, “[sjeldom Boyles As we stated legal writer who remarked that (Tex.1993), relationships “certain overwhelming has there been such an the law which, breached, may give rise to a relatively period in such a short of time trend distress award.” support would an emotional in the trend towards allow- as there been phy- “[t]he in Krishnan that then stated injuries to a viable We ing prenatal Leal, relationship is one such rela- Leal, sician/patient infant.” at 822. Krishnan, at 482. tionship.” recognized “impressive contemporary an Id. The court Yandell, negligent prenatal care. injured in úte- tor’s a fetus while Under inju- ro, viability reasoned: regardless of at the time injuries personal

ry, cause of action for has a merely injury is not deriva- father’s] [The provided the child is born alive and survives. injury but flows of Mrs. Andalon’s tive Therefore, Yandell, 471 S.W.2d at 570. repro- participant in the from his role as a only duty is nec- expansion physician’s and its couple of the marital ductive life regard father. essary expectant parental The burdens of lawful choices. Otherwise, are the individuals fathers directly upon fall his shoul- responsibility relationship duty arising the father-mother-unborn child con- ders. The tort duty, and thus physicians tract, owe no Mrs. Andal- to whom defendant and between remedy despite ón, him, their they merely are left without a of the runs to not because him, painful foreseeability emotional harm to loss. of sig- nexus between his but because of the context, should, in this narrow The father of and the ‘end and aim’ nificant interests duty special of the rela be owed a because relationship. mani- He is the contractual physician is en tionship that arises when tort-duty im- beneficiary of festly a direct by parents bring to their child trusted both doctor-patient rela- posed by of the virtue recog have into the world. Texas courts tionship. contractually situations that a nized based reasoning echoed in Loui Id. This has been relationship may special “arise[] See, e.g., v. East siana. Skorlich Jefferson necessary accomplish the element of trust to 916, (La.Ct.App. Hosp., Gen. So.2d goals undertaking.” English of the v. Fisch 1985). Skorlich, a father sued his wife’s In (Tex.1983) er, (Spears, injuries hospital his child doctor and the J., concurring). my such a It is view that during process. Id. received the birth of an relationship exists between a father court concluded that the 916. The baby baby’s physi unborn and his wife and duty of care to both and the doctor owed a cian, and that the father should be able the father. Id. at 918. the mother and anguish damages mental for his loss. recover court reasoned: Co., 66 Stuart v. Western Union Tel. essence, object undertaking is In the of the (1885) (hold 580, 585, Tex. 18 S.W. pregnancy physician to treat the for the ing telegraph company’s failure deliv joint of created the efforts which was message gave mental an er a death rise to Although fa- mother. the father and deceased); guish for brother of the his carry the fetus within ther does not Foley Wyatt, 442 Pat H. & Co. v. body, own it is his seed which created (Tex.Civ.App. [14th Dist.] — Hous. him obli- imposed thus on fetus and n.r.e.) (allowing writ ref 'd mother of deceased care, the fetus gation protect and raise fu anguish damages to recover reason, duty of For that to adulthood. negligent handling her son’s neral home’s of injure negligently physician not to corpse). duty during process birth is a child father as well as the mother. owed to the recognized courts have a cause of Other for distin- no reasonable basis There is a third- by concluding action that a father is and mother. guishing between the father party beneficiary doctor-patient of the rela recognizes agree I with the results reached example, tionship. For California would hold that doctors duty a third- these courts and of to a father as extension duty they owe hospitals owe fathers the same beneficiary doctor-patient party of his wife’s Court, prenatal care in the context of Superior to mothers relationship. Andalon v. relationship special delivery on the Cal.Rptr. 905 and based Cal.App.3d (1984). Andalón, physician is entrusted when a court concluded that created bring baby into the world.3 parents to victims of the doe- parents both were direct hope will that in the future the Court Today pass there is the Court does not on the merits Thus, of action to assert such a cause third-party beneficiary this is an allow fathers claim. anguish damages. Perhaps recover mental open question. S.W.2d at 79. added). (emphasis The fact that it set forth has made the The evolution of tort law Edinburg ripe standards shows that General concept legal duty particularly area such Indeed, judicial foresee the risk that treatment errors for continued consideration. could history development patient, but also for posed entire of the “[t]he tendency patient’s “significant a continuous to rec other.” tort law shows worthy ognize legal protection interests utility recognize that of Edin- the social protected previously were not at all.” which burg great and that the General’s actions is § 1 (Seoond) cmt. e of ToRts Restatement magnitude consequences placing this observed, “[ejhang- As Dean Prosser Edinburg significant. on General are burden constantly ing conditions lead social Nevertheless, out- these considerations are general recognition of new duties. No better risk, likelihood, weighed by the and foresee- made, than that the courts statement can be Thus, ability injuries involved. these where, duty general, find a reasonable will weigh imposing on factors favor of agree recognize it and men would Edinburg I would therefore hold General. Prosser, Handbook of the Law of exists.” Edinburg owed Mr. Trevino the General (4th 1971), quoted at 327 ed. Torts duty respect prenatal to same of care with Clark, Eng’g Corp. v. Otis S.W.2d delivery and care and that it owed his wife (Tex.1983) duty (imposing employ a on a baby, and I would allow him to assert ers to act with reasonable care when exercis damages for mental an- of action to recover Sanchez, servants); ing control over see also guish. Boyles, 855 at 598. S.W.2d (allowing parents at 252 who lose S.W.2d society minor child to recover for loss of and IV. anguish response in to needs of mental necessary the law is to This modification of Park, society); Highland modern Parker v. gamesmanship, and to eliminate confusion (ex (Tex.1978) Inc., 514-15 clarify justify mental an those events that duty tending guests to tenants’ a landlord’s not, to guish damages those that do and and portions of owed to tenants to maintain honesty promote in our courts. intellectual premises). only It to leased reasonable of adherence to the view Because the Court’s duty to a father conclude now that a is owed recovery for the death that there can be no baby’s physician. his unborn child, judges lawyers and are of an unborn o around duty forced to craft rationales to maneuver recognition The of such a is als existing example An of this ma justified balancing precedent. under the test this Court neuvering in Krishnan. The deciding is the decision uses when whether exists. test, Sepulveda had concluded that Mrs. the Court must balance the Court Under injury in risk, injury pleaded physical to herself when foreseeability, and likelihood of inju physical utility fact there was no mention of a against the social of the actor’s con Krishnan, 916 duct, guard ry pleadings. to her in the magnitude of the burden of (Gonzalez, J., dissenting). injury, consequences at 489-90 ing against the and the S.W.2d Krishnan, Mrs. Se reality is that placing that burden on the defendant. of no more an Phillips, pulveda’s pleadings contained Transp. Greater Houston Co. (Tex.1990). injury physical than Mrs. Trevi- allegation of S.W.2d The Court read pleadings in this case. ño’s Mr. Treviño’s was foreseeable Sepulveda’s allegation into Mrs. such an Edinburg Policy In Proce General. its and recover, a chance to pleadings to allow her Delivery, Edin dure Manual for Labor and in this case. and does the same Nursing burg General lists its Standards compen- to be and Mrs. Trevino seek Mr. states: “Patients The first standard Care. harm suffered as sated for their emotional expect nursing significant others can and/or they expected loss of the child result a safe environ provided to be within care notes, Mrs. Treviño to have. As the Court untoward events protection ment (Mora) (falls incidents, errors in the ad and other treatments, damages anguish sought prove ministration medications abuse)” she contamination, by presenting evidence that patient part cross calculation, perform the mental expectation unable preparations had made asks of them. baby: gymnastics had set aside a the Court the arrival of her she baby pur- room in her home for the truth, injury, one there is one furniture for room. also chased She question.” It is unreasonable “occurrence fetus ‘still testified that the loss of the fact to ascertain dam- expect the trier of yesterday,’ that she hurts like was [her] mother’s anguish due to the ages for mental clipping of the funeral service carries (from baby), of her the loss personal her, marriage and that her deteriorat- time not consider while at the same after the loss of the fetus. This evi- ed baby’s might death itself have grief that Mora felt dence relates to the caused. As I wrote Krishnan: separate as a over the loss of the fetus jury charge for this kind of What will part body. individual and not as of her own this Court ease read in the future? Since at 79. Pietila, Blackman, Witty, Tar leaves harm. Mr. Trevino also suffered emotional books, of County Hosp. rant Dist. on the His mother testified that he took the death necessity a trial court will have to instruct “very baby hard. He wouldn’t eat. He jury to award spend crying a lot of time like a would “by way of consolation for the mother baby.... drinking He started a lot and “any baby unborn or for death” of the having problems drinking ... like started sorrow, anguish, grief suffered as crying.... and like He was not the same baby’s result” of the death. See Tex.Pat anymore.” person at 839. Oscar Charges in 81.04 This J. tern Trevino suffered as result of this ordeal. made obsolete in the context struction was pain anger that He testified and he felt parents’ wrongful death actions for the of day present. that have continued to the birth, following death of a child its see id. evident, (Supp.1984) (citing cmt. Sanchez Schin As is the Trevinos’ claims are dler, (Tex.1983)), 249 but it indistinguishable plaintiffs’ claims Krishnan, 479, Pietila, again respond must be resurrected 916 S.W.2d at Moreover, 187, Blackman, 743, writing today. the Court’s at at S.W.2d 506, light today’s opinion holding that a Witty, 727 S.W.2d at and Tarrant Coun District, damages 23, is not entitled to recover ty Hospital mother 726 S.W.2d at which society, companionship, for the loss of and we have held not to be actionable. The death, affection due to the unborn child’s today reaffirms Court these cases but does judge trial at a careful doublespeak so in that is bound to confuse bench, may following juries: well add the instruction: the bar and “Mora While (Mrs. Treviño) against negligence has a claim any pecuniary result- Do not include loss personal injury she sus baby]. Do ing the death of [the from fetus,” losing tained 941 S.W.2d at love, comfort, compan- not consider the hospital could not for a “[t]he be held hable society ionship, [the mother] and injury negligent to Mora’s fetus.” baby]. [the would have received from S.W.2d at 79. anguish Disregard mental suffered will by past in the or which [the mother] The result of our case law is so harsh and resulting be suffered the future Krishnan, again, inequitable that once as in baby]. the death of [the way prece- the Court finds a to circumvent (stating (Supp.1984) dent to reach the desired result. The Court See id. 83.03A surviving allowing plaintiffs through is to do the back elements of in a they parents a minor child are entitled to through door what cannot do the front action). nod, Although this in- wrongful death door. With a wink and a the Court troublesome, juries generally today judges pretend asks and struction will be anguish component proba- will harm and loss to the mother the mental the emotional problematic. by injuries, bly is the most This Court are caused two one which juries injury resulting in the death actionable and the other not. I believe holds that the physician’s compensate injuries of an unborn child due to will now both within one body just part of its mother’s some negligent personal care is a another prenatal therefore, worthy legal protection. Presumably, not One how to the mother. enlightened that an Court would judge general question for would think trial will ask the point along con damages recognize that at some personal injury recoverable for birth, conception the unborn physician’s negligence. The definition of tinuum from anguish appear baby worthy legal protection.4 in the will also is charge. undermining The definition could state: the notion medical evidence that emotional harm from the death of one’s anguish

Mental means an emotional inju baby is caused two distinct unborn torment, suffering experienced pain, great legal to continue this fiction ries is too as a result of the occur- [the mother] law, any longer. developing tort this question. rence in empowered is to decide that Texas has Court Alternatively, it could state: compelling, interest important, relatively high de- Mental an unborn child protecting the life of gree pain and distress. It is of mental See, stages pregnancy. throughout all anger, disappointment, more than mere Casey, e.g., Parenthood v. 505 U.S. Planned embarrassment, although resentment or 2791, 2816-20, 833, 869-76, 112 S.Ct. it include all of these. It includes (1992); Reproductive L.Ed.2d 674 Webster pain resulting from mental sensation of Servs., 490, 519, 109 Health 492 U.S. S.Ct. painful grief, such severe emotions (1989); 3040, 3057, Roe v. 106 L.Ed.2d 410 disappointment, indignation, wounded Wade, 113, 162-63, 93 S.Ct. U.S. shame, despair public hu- pride, and/or 731-32, This interest 35 L.Ed.2d 147 miliation. justification, logical biological has both a Co., Bell Tel. See Treviño v. Southwestern 731-32, Roe, 410 U.S. at 93 S.Ct. (Tex.Civ.Ap p .—Cor merely be importance its is not diminished writ). pus no This Court Christi in an action for is enforced today that the “loss of the fetus” is a rules regula other at common law rather than mother, recoverable tory concede our means. would therefore S.W.2d at but that the death errors, progeny, Witty and its overrule Therefore, baby judge a trial itself is not. join overwhelming growing majority exclusionary probably should also add an jurisdictions allow which instruction, to wit: “Do not include of an unborn child. death resulting amount for mental mother, any, injury to the if reasons, foregoing I would affirm For the question.” resulted from the occurrence judgment of part part and reverse surprising forgoing ... It will not be appeals. the court of juries, [jury charge] profoundly confuses attorneys, appellate and trial and courts. (Gonzalez,

Krishnan, 488-89

J., dissenting). today necessary approach propose First, grave two harms. Krishnan

to correct

and this case cause confusion due recognizing a cause of action

Court’s wrongful a claim for the

looks and feels like baby,

death of an unborn while simultaneous- such a claim.

ly denying the existence of

Second, dispel the fiction that an we must simply a mass of tissue

unborn child is Farms, Indeed, tus); Maple N.W.2d high now Wiersma courts of several states Leaf fetus); (7½ (S.D.1996) Connor week old wrongful protection death for nonviable allow (Mo. 1995) Co., Sartin, 92-93 Farley v. Monkem 195 W.Va. fetuses. See fetus). (16 (1995) (18-22 fe- week old week old S.E.2d 533-34

Case Details

Case Name: Edinburg Hospital Authority v. Treviño

Court Name: Texas Supreme Court

Date Published: Apr 18, 1997

Citation: 941 S.W.2d 76

Docket Number: 95-0939

Court Abbreviation: Tex.