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Click here for the full text of this decision FACTS:Tara Reese went to the Fort Worth Osteopathic Medical Center emergency room in her seventh month of pregnancy complaining of a racing pulse and dizziness. Doctors determined that she had a high pulse rate and high blood pressure and sent her to the labor and delivery room for further observation. On multiple occasions through the course of the evening, doctors monitored the heart tones of the fetus, which were often difficult to detect. The following morning the doctors confirmed that the fetus would be stillborn. Tara and her husband, Donnie Reese, brought suit against Fort Worth Osteopathic Hospital, Osteopathic Family Medicine Clinics, Craig Smith, D.O., Roberta Beals, D.O., Reid Culton, D.O., and John Chapman, D.O. (health care providers), for negligence, gross negligence, and vicarious liability, seeking damages under the wrongful death and survival statutes and for personal injuries to Tara Reese. The trial court granted summary judgment in favor of all health care providers. The Reeses appealed all claims except that against Dr. Chapman. The court of appeals affirmed the summary judgment disposing of Donnie Reese’s individual bystander claim but reversed the remainder of the summary judgment, remanding the case to the trial court. HOLDING:The court renders judgment that the Reeses take nothing on their wrongful death and survival claims and remands Tara Reese’s individual medical negligence claim to the trial court for further proceedings in accordance with this opinion. In 1987, this court held that these laws did not modify the common law rule against recovery with respect to a stillborn fetus. Witty v. Am. Gen. Capital Distrib. Inc., 727 S.W.2d 503 (Tex. 1987). The court reasoned in Witty that the Legislature did not intend the words “individual” or “person” to include an unborn fetus. Because of the common-law rule that legal rights were contingent upon live birth, the court opined that the Legislature would have expressly created a wrongful death or survival cause of action for an unborn fetus if it intended to do so. In so holding, the court expressed no opinion about whether a fetus is a person in either the philosophical or scientific sense. Since 1987, this court has repeatedly affirmed its decision in Witty. In 2003, the Legislature did grant the parents of a stillborn child a cause of action under the Wrongful Death Act. However, the statute expressly does not apply to claims “for the death of an individual who is an unborn child that is brought against. . . . a physician or other health care provider licensed in this state, if the death directly or indirectly is caused by, associated with, arises out of, or relates to a lawful medical or health care practice or procedure of the physician or health care provider.” The parties do not contend that this case involved anything other than a lawful medical procedure, so this case would not be covered even if the new statute were applicable. Because the Legislature has left the holding of Witty in place for all suits against health care providers arising after Sept. 1, 2003, the court declines to overrule Witty for those cases remaining in the court system that arose before that date. While the U.S. Supreme Court has acknowledged the state’s interest in the life of a fetus before birth, Planned Parenthood v. Casey, 505 U.S. 833 (1992), it has never repudiated its holding in Roe that the Equal Protection Clause does not apply to a fetus. The Legislature may therefore extend wrongful death and survival causes of action only to persons that are born live without violating the federal Equal Protection clause. The Reeses do not argue that our state constitution’s guarantee of equal protection is broader than or different from the federal constitution in this regard. It is not a violation of the Equal Protection Clause to fail to provide parents with a claim for the wrongful death of a fetus in utero when the Equal Protection Clause does not prohibit a legislative body from withholding a wrongful death cause of action from the fetus. There is a distinction between the harm that a mother suffers from injury to part of her body and the loss of a fetus. Edinburg Hosp. Auth. v. Trevi�o, 941 S.W.2d 76 (Tex. 1997). The former is a direct cause of action that the mother has in her own right, while the latter is a derivative claim. The court holds that the wrongful death and survival statutes do not violate the Equal Protection Clause by prohibiting parents of a stillborn fetus from bringing claims under them. The court affirms the court of appeals’ holding that Reese produced sufficient evidence raising material fact issues as to whether Tara Reese suffered mental anguish damages for her own injury sufficient to defeat the summary judgment motion. OPINION:: Phillips, C.J.; Hecht, Owen, O’Neill, Jefferson, Wainwright and Brister, J., join. O’Neill, J., filed a concurring opinion. Smith, J., filed a dissenting opinion. Schneider, J., did not participate in the decision.

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