Crites v. Pietila

OPINION

WOODARD, Justice.

This is an appeal from a summary judgment in favor of the physician defendants. We reverse and remand.

Jill Crites was involved in an automobile accident in May of 1988. She was approximately eight months’ pregnant at the time.

She was treated at an Odessa hospital by the emergency physician, Dr. Oliver Loyd. Her ankle was placed in a splint, her head was x-rayed and her gashed knee was examined. While at the hospital, she told Nurse Outright that the baby was not moving. Through a monitor, the baby’s heartbeat was heard. Mrs. Crites had been under the pregnancy care of her obstetrician, Dr. Richard Pietila. Nurse Outright contacted Dr. Pietila at home. Dr. Pietila directed the nurse to have Mrs. Crites drink a coke and determine movement. Movement was detected. Mrs. Crites was directed to call Dr. Pietila upon her release from the hospital that evening. In doing so, she was instructed by the doctor to come to his office the next day at 8 a.m.

Upon her arrival, she was given a sonogram which determined the baby was dead. She was then hospitalized, and the deceased baby was delivered under induced labor.

Plaintiffs filed suit for damages for their past and future mental anguish caused by the defendants’ negligence, the “Bystander Doctrine” and the “Loss of Chance Doctrine.”

The plaintiffs’ expert, Dr. David Abram-son, gave evidence that Dr. Loyd’s conduct fell below medical standard of care by failing to determine fetal well-being by a fetal monitor and by failing to consult an obstet*176rical specialist. Dr. Pietila failed to obtain a fetal monitor strip and consider the deliverance of the baby. Dr. Abramson further stated that if both doctors had acted in accordance with the minimum standard of care, the baby would have been born by operation in the evening of Mrs. Crites’ first hospital admission, and the child would have developed normally.

The common law claim for mental anguish suffered as a result of the loss of a fetus has been recognized. In Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503 (Tex.1987), the pregnant mother, while employed as a receptionist by the defendant, tripped over a utility outlet and fell with such force that her unborn baby was fatally injured. She sued to recover (1) damages for her child’s prenatal injuries; (2) damages for her own loss of the baby’s support and companionship; (3) damages for her own emotional trauma and mental anguish; and (4) property damages for the loss of the fetus. The trial court entered a take-nothing summary judgment. On appeal, the Court, in a split decision with all three justices writing, held that Mrs. Witty was not precluded as a matter of law from asserting her individual claims for damages at common law, based on her alleged emotional distress, and under the Wrongful Death Statute, based upon her alleged loss of society and companionship and for her alleged mental anguish. Witty v. American General Capital Distributors, Inc., 697 S.W.2d 636 (Tex.App. — Houston [1st Dist.] 1985), affd in part, rev’d in part and remanded, 727 S.W.2d 503 (Tex.1987).

The Texas Supreme Court concluded Mrs. Witty had no claim under the Wrongful Death Statute, Tex.Rev.Civ.Stat.Ann. art. 4671 et seq. (Vernon Supp.1985) or the Survival Statute, Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon 1958), that her claim for common law mental anguish was barred under the Workers’ Compensation Act and there was no claim for destruction of a chattel. Witty, 727 S.W.2d at 503. In its opinion, the Court said Mrs. Witty’s “common law claim for mental anguish suffered as a result of the loss of her fetus is barred under the Worker’s Compensation Act.” Id. at 506. To reach the result that the claim was barred, the Court had to first determine that there was a valid existing claim. Following that determination, we must also recognize that there is a valid existing claim but, in our case, the claim is not barred by the Workers’ Compensation Act.

The defendants have failed to negate the plaintiffs’ cause of action as a matter of law. Delgado v. Bums, 656 S.W.2d 428, 429 (Tex.1983). Judgment of the trial court is reversed and the case is remanded for a trial for both plaintiffs.

Before OSBORN, C.J., and WOODARD and KOEHLER, JJ.