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A. a.(1)(a) i) a)DocumentҲTech InitInitialize Technical Style;< 1 .1 .1 .1 .1 .1 .1 .1 Technical2g t !*"PleadingHeader for numbered pleading paper=>   , X  y*dddyy*dddy H\1 H\2 H\3 H\4 H\5 H\6 H\7 H\8 H\9 H10 H11 H12 H13 H14 H15 H16 H17 H18 H19 H20 H21 H22 H23 H24 H25 H26 H27 H28   ӕHome PtrSets codes for printing opinions on Sperry Laser Q?@ X #Xx6X@ X@#  EnvelopeEnvelope!AB '3 II    Xp,  p,p, Letter 2Personal stationery with standard margins"bCD#XN\  P XP#   p,  3 1, 4 2&#$S0Letter 3Personal stationery with narrow margins#bEF#&R2P &P#     3 1, 4 Letter 1Court stationery$PGH#XZ2P XP# * 3 1, 4 ؃ j\  P6;XPH%\  `$Times New RomanXX P7XP{L  Z(CG Times RegularX?\  PP%\  `$Times NewRomanj\  P6;XPH%\  `$Times New RomanX4\  PP%\  `$Times NewRomanj\  P6;XPH%\  `$Times New RomanXx6X@@H  9`("Courier NewTTx6NhHH  9`(.Courier NewItalicTTx6NhHH  9`(.Courier NewItalicTTXx6X@ X@<6X9`("Courier NewTTXXN\  P XP% [  `*Times New RomanTTX&R2P &P7|A`$ArialTT&XZ2P XP& A`ArialTTX2&&3|j X   IN THE SUPREME COURT OF TEXAS ă & &No. 961224ă & Christina Michelle Brown and Cecil Ted Brown, individually and on behalf of The Estate of Dillon Ray Brown, deceased, Petitioners  *v.ă Kalman Jay Shwarts, M.D., and Navarro Memorial Hospital, Inc. d/b/a Navarro Regional Hospital, Respondents   On Application for Writ of Error to the D Court of Appeals for the Tenth District of Texasă  l Argued on October 7, 1997 ă Justice Gonzalez, concurring, joined by Justice Abbott with respect to Part II, and Justice Baker and Justice Abbott with respect to Part III.#X P7XP# * *I There is . . . no negligence cause of action arising out of the treatment or injury of a fetus. ` ` ` . . . . . . . [T]his court declines to overrule its prior opinions and continues to hold that there is no wrongful death or survival cause of action for the death of a fetus. [Pietila v. Crites, 851 S.W.2d 185 (Tex. 1993); Blackman v. Langford, 795 S.W.2d 742 (Tex. 1990); Witty v. American Gen. Capital Distribs., Inc., 727 S.W.2d 503 (Tex. 1987); Tarrant County Hosp. Dist. v. Lobdell, 726 S.W.2d 23 (Tex. 1987)]. Furthermore, the Legislature has not amended the wrongful death and survival statutes to create a wrongful death or survival cause of action for loss of a fetus.  Krishnan v. Sepulveda, 916 S.W.2d 478, 47981 (Tex. 1995). #?\  PP#E:\Security\961224RAG.O-##j\  P6;XPH#чWithout overruling any of the above cases, the Court today holds that the Browns, whose     claims resulted from the alleged negligent treatment of their son in utero, waited one day too long to file [the wrongful death] suit, ___ S.W.2d at ___, but that the Browns survival action is not barred. ___ S.W.2d at ___. In so holding, the Court finally recognizes that because a physician can be liable for negligently injuring a fetus, it follows that a fetus can be a patient. ___ S.W.2d at ___. Unfortunately, when viewed alongside the Courts previous writings, todays opinion adds confusion to an already muddled area of the law and does nothing to resolve the tension in our opinions. #4\  PP#E:\Security\961224RAG.O-##j\  P6;XPH#чNevertheless, while I cannot join the Courts writing, I concur in its judgment. It is clear that the statute of limitations on the Browns survival action, which is wholly based on Dillons injury and the damages Dillon suffered, was tolled until Dillons death. Tex. Rev. Civ. Stat. Ann. art. 4590i,  10.01 (Vernon Supp. 1998) ( Medical Liability Act). Therefore, the survival action is not barred. I also agree that under sections 4.01(c) and 10.01 of the Medical Liability Act, a wrongful death action filed more than two years and 75 days after the occurrence of the breach or tort against an unborn patient is barred by limitations. I have consistently urged the Court to recognize that such a patient should be able to recover for its injuries received in the womb, regardless of whether the patient is later born alive. See Edinburg Hosp. Auth. v. Trevi9o, 941 S.W.2d 76, 8592 (Tex. 1997) (Gonzalez, J., dissenting); Krishnan, 916 S.W.2d at 48390 (Gonzalez, J., dissenting). Under the absolute statute of limitations of the Medical Liability Act, the clock starts running from the date of breach or tort against the patient whose injury or death forms the basis for the health care liability claim. Therefore, I agree with the Courts disposition of this case. However, I am concerned with the inconsistency in holding that for the purposes of the statute of limitations of the Medical Liability Act, a fetus is a patient, when this Court has unwaveringly held that under the Wrongful Death Act, a fetus is not an individual, and therefore may not recover for its wrongful death if that fetus (patient) happens to die in utero. See Trevi9o, 941 S.W.2d at 78, 79 n.1; Witty, 727 S.W.2d at 504 (stating that the Legislature did not intend the word individual to include an unborn fetus). The Medical Liability Act does not define patient. Still, the Court is willing to say that under that Act, a fetus is a patient, as a doctor/patient relationship clearly exists between a doctor and fetus. ___ S.W.2d at ___. But on the other hand, in Witty, 727 S.W.2d at 504, the Court faced a similar situation involving the absence of a legislative definition, yet reached a contrary result. The Wrongful Death Act allows a cause of action for damages arising from an injury that causes an individuals death. Tex. Civ. Prac. & Rem. Code  71.002(a). But the Legislature did not define individual in the statute. Nonetheless, the Court held that when enacting the statute, the Legislature did not intend the word individual to include a fetus, Witty, 727 S.W.2d at 504, despite a complete absence of evidence of what the Legislature intended, and without any reasoning, discussion, or analysis of such intent. Id. at 507 (Kilgarlin, J., dissenting). In fact, the Courts analysis in Witty centered around the fact that the be a nonsubstantive change. See Witty, 727 S.W.2d at 504. Essentially the Courts summary conclusion was that a fetus is not an individual because a fetus is not a person. However, there are numerous sources that indicate that a patient is a person. See Tex. Health & Safety Code  313.002(8) (defining a patient as a person who is admitted to a hospital . . . .) (emphasis added); Tex. Rev. Civ. Stat. Ann. art. 4495b,  5.08(m) (Vernon Supp. 1998) (defining a patient as any person who consults or is seen by a person licensed to practice medicine to receive medical care) (emphasis added); Tex. R. Civ. Evid. 509(a)(1) (defining a patient as any person who consults or is seen by a physician to receive medical care) (emphasis added); Blacks Law Dictionary 1126 (6th ed. 1990) (defining a patient as a Person under medical or psychiatric treatment and care) (emphasis added). If indeed a fetus is a patient, as the Court admits, how does it follow that a fetus is necessarily not a person or individual for the purposes of wrongful death jurisprudence? The Trevi9o Court followed Witty and stated that it would be up to the Legislature to rewrite the Wrongful Death Act to include under the definition of individual a fetus, which according to the Court today, is a patient. Therefore, the Court finds itself in the following untenable position: it recognizes in the present case, with no guidance from the Legislature, that a fetus is a patient, while at the same time, because there has been no guidance from the Legislature, it adheres to the antiquated concept that a fetus is not an individual in the area of wrongful death jurisprudence. If the Court had simply recognized, at my urging in Krishnan and Trevi9o, that there is no limitation in the Wrongful Death Act that prevents us from construing the )II Nevertheless, this predicament can be remedied by legislative action. Just over a year ago in Trevi9o, I called upon the Court to abandon the anachronistic rule of law that dictates that parents cannot recover for the wrongful death of their unborn child, and urged the Court to join the overwhelming majority of jurisdictions that allow such recovery. Trevi9o, 941 S.W.2d at 86 & n.1 (Gonzalez, J., dissenting). As mentioned earlier, the Trevi9o Court deferred to the Legislature, stating, If the law is to change, it would be up to the Legislature, not this Court, to rewrite [the Wrongful Death Act] to allow the cause of action that Justice Gonzalez seeks to create. Id. at 79 n.1. I still adhere to the view that the Legislature, by providing a cause of action for the wrongful death of an individual, has done all that is necessary for us to recognize a tort for an unborn babys wrongful death. The mistake, as I have reiterated time and again, was this Courts interpretation of the Wrongful Death Act in Witty. However, it is abundantly clear that my colleagues will not overrule Witty and its progeny.  )III Therefore, I now call on our Legislature to bring Texas in line with the vast majority of jurisdictions that recognize a wrongful death cause of action for the death of a fetus. Id. at 86 n.1 (Gonzalez, J., dissenting) (listing thirtynine jurisdictions that recognize some form of action to recover damages for an unborn childs death); see Santana v. Zilog, Inc., 95 F.3d 780, 783 n.3 (9th Cir. 1996) (pointing out that only nine jurisdictions do not allow wrongful death causes of action for any fetus, regardless of viability). The reasons to recognize such a claim are many, as I have exhaustively detailed in my previous dissents in Trevi9o and Krishnan. Trevi9o, 941 S.W.2d at 8592 (Gonzalez, J., dissenting); Krishnan, 916 S.W.2d at 48390 (Gonzalez, J., dissenting).  ` ` ` hhh_______________________ Raul A. Gonzalez Justice OPINION DELIVERED: March 13, 1998