OPINION
This appeal presents the question of whether our holding in
Parvin v. Dean,
Appellants Tara and Donnie Reese are the biological parents of Clarence Reese, a viable fetus who died in útero on May 12, 1998. Appellees Craig Smith, Reid Culton, and Roberta Beals were the treating physicians. Appellee Fort Worth Osteopathic Hospital is the medical center where Tara sought trеatment for a rapid heartbeat and dizziness prior to Clarence’s death.
Appellants brought suit against appel-lеes individually, and as the legal representatives of Clarence Reese, on grounds that appellees’ negligenсe and gross negligence proximately caused Clarence’s death. Relying on prior Texas Supreme Court precedent, appellees filed summary judgment motions contending that, as a matter of law, appellants may not recover for injury to or the death of a fetus. Appellees also argue Tara and Donnie Reese could not maintain their individual claims because they were merely bystanders to any injury and thus are prevented, as a matter of law, from any recovery in medical malpractice *205 cases. The trial court granted appellees’ motions in a general summаry judgment order.
On appeal, appellants contend the right of parents to bring a wrongful death claim for the in útero death оf their viable fetus, and the existence of a survival cause of action in favor of the fetus, are guaranteed by the equal protection clauses of the Texas and United States Constitutions. This contention is, essentially, the very holding of our cоurt in Parvin. Id. at 273-276.
We recognized in
Parvin
the disparate opinions of the Texas Supreme Court
1
in this controversial area of law and concluded that no rational or compelling state interest exists to “justiffy] the wrоngful death and survival statutes’
2
unequal application to born babies while at the same time excluding viable but unborn babies and thе unequal application to their parents.”
Parvin,
Appellees invite us to reconsider our decision in Parvin and hold that no constitutional violation is presented by a rule of law under which the right of recovery for damages turns on whether the injured child is born alive. Alternatively, appel-lees argue that the rule in Parvin should not be extended to cases involving medical negligence. We decline appellees’ invitation and rеaffirm our holding in Parvin for the reasons discussed therein. In addition, we find no reason why our holding in Parvin should not apply to cases involving claims for medical negligence. The contention by appellees that the circumstances in this case are legаlly distinguished from Parvin because Tara Reese was a “high risk” patient due to her obesity and pregnancy-induced hypertension mаy present defenses to appellants’ cause of action on the merits, but do not present a legal basis for grаnting summary judgment on grounds that a cause of action does not exist because Clarence was not live-born.
We next address whether Tara and Donnie Reese may maintain individual causes of action against appellees for medical malpractice. Both Tara and Donnie Reese tendered summary judgment evidence in response to appеllees’ summary judgment motions. That evidence included an affidavit by Dr. Bruce Halbridge, a board certified specialist in obstetrics and gynecology, who stated that the appellee doctors’ failure to perform standard fetal diagnostic tеsts and the failure of the ap-pellee hospital’s nursing staff to maintain continuous fetal rate heart monitoring, proximately caused injuries to Tara Reese. According to Dr. Halbridge, a timely Caesarean section delivery would have рroduced a viable child, thus avoiding what Tara Reese described as a “long and painful delivery” process which produced her still-born child. Both Tara and Donnie Reese provided separate affidavits detailing the painful delivery sufferеd by Tara, and the resulting emotional mental pain, anxiety, and sadness suffered by them following Clarence’s death.
The law pеrmits Tara to maintain a cause of action for medical negligence
*206
because she was a patient and рroduced evidence of damages sufficient to defeat appellees’ summary judgment motion.
See Edinburg Hosp. Auth. v. Trevino,
The trial court’s summary judgment order disposing of Donnie Reese’s individual bystander cause of action against appellees is affirmed. The remainder of the summary judgment order is reversed and the cаse is remanded to that court for further proceedings consistent with this opinion.
Notes
. We noted, for example, that the court in
Witty v. American General Capital Distributors, Inc.,
. See Tex. Civ. Prac. & Rem.Code Ann. §§ 71.002(b), 71.021(b) (Vernon 1997).
. On appeal, Donnie Reese suggests he never sought to recover damages under a bystander theory; however, in his summary judgment affidavit he avers he was "at the hospital with my wife Tara throughout her stay. I saw the pain and mental anguish she suffered and, because of my love for her, I suffered with her and experienced mental pain, anxiety and sadness.” This statement, coupled with his somewhat ambiguous pleadings, could have reasonably been construed by appellees and the trial court as a claim for damages under a bystander theory of recovery.