GARRARD v. ST. ELIZABETH HOSP

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Docket Number

No. 09-85-055 CV.

Attorney(S)

Thomas F. Rugg, Reinstra Rugg, Beaumont, for appellants. Patricia D. Chamblin, Mehaffy, Weber Keith Gonsoulin, Cleve Bachman and Curry Cooksey, Orgain, Bell Tucker, Beaumont, for appellees. OPINION

Judges

BURGESS, Justice.
BROOKSHIRE, Justice, concurring and dissenting.

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Smart Summary

Factual and Procedural Background

Mr. and Mrs. James Garrard sued St. Elizabeth Hospital alleging negligence and gross negligence. Their first amended petition added Dr. H.R. Wilcox and Dr. Dave Frueh, dropped gross negligence and punitive damages; a second amended petition dismissed Dr. Frueh, alleged specific acts of negligence and elements of damage, and sought damages for mental anguish. The petition alleged Mrs. Garrard delivered twins: a healthy male and a stillborn female. An autopsy consent was signed, but prior to the autopsy the stillborn infant's body was delivered to a mortuary and disposed of in an unmarked common grave without the Garrards' knowledge or consent. The hospital and a pathologist filed special exceptions asserting the petition failed to state a claim; the trial court sustained the exceptions and, after the plaintiffs refused to further amend, dismissed the petition. The Garrards appealed.

Legal Issues Presented

Whether a plaintiff may recover damages for mental anguish based on negligent infliction of emotional trauma absent proof of physical injury or conduct worse than negligence.
Whether the Garrards' second amended petition, taken as true for purposes of appeal, stated a cause of action against the defendants (St. Elizabeth Hospital and Dr. H.R. Wilcox) sufficient to survive special exceptions and dismissal.
Whether precedent recognizing recovery for mental anguish in cases involving loss of a body supports the Garrards' claim as an alternative ground.

Arguments of the Parties

Appellants' (Garrards')

Pleadings alleged specific negligent acts by the hospital and the pathologist resulting in disposal of the stillborn infant's body without consent; they sought damages for mental anguish.
The opinion indicates reliance on authorities recognizing recovery for mental anguish resulting from negligent infliction of emotional trauma.

Appellees' (Defendants')

Special exceptions alleged the Garrards failed to plead intentional or willful act, gross negligence, breach of contract, physical injury, or a cause of action under the wrongful death or survival statutes, and thus had not stated a cause of action because they sought only mental anguish arising from negligence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hubler v. City of Corpus Christi, 564 S.W.2d 816 (Tex.Civ.App. — Corpus Christi 1978, writ ref'd n.r.e.)	On appeal from a dismissal for failure to state a cause of action, the plaintiff's allegations must be accepted as true.	The court applied this principle to accept the Garrards' allegations as true for purposes of reviewing the trial court's sustaining of special exceptions.
Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983)	Authorized recovery for mental anguish without proof of physical injury or conduct worse than negligence (recognition of negligent infliction of emotional trauma).	The court relied on Sanchez to hold that recovery for mental anguish does not require a death or physical injury and that negligent infliction of emotional trauma is cognizable.
Baptist Hospital of Southeast Texas, Inc. v. Baber, 672 S.W.2d 296 (Tex.App. — Beaumont 1984, writ granted)	State-level application of Sanchez-type recognition for recovery of mental anguish.	Listed as authority consistent with Sanchez; treated as supporting the court's view that mental anguish recovery is available without physical injury.
Missouri Pacific R. Co. v. Vlach, 687 S.W.2d 414 (Tex.App. — Houston [14th Dist.] 1985, no writ)	Another decision recognizing recovery for mental anguish in negligence contexts (cited as "See also").	Cited as additional authority consistent with the principle adopted from Sanchez.
Classen v. Benfer, 144 S.W.2d 633 (Tex.Civ.App. — San Antonio 1940, writ dism'd judgmt. cor.)	Upheld recovery where the only actual damages were mental pain and suffering for loss of a body upon re-interment.	The court cited Classen as an alternative ground supporting that the Garrards had stated a cause of action for mental anguish resulting from loss of the body.
Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031 (1937)	Cited by dissent to support pleading in the alternative and that mutually destructive allegations may be pleaded.	The dissent invoked this authority to argue the pleadings were inconsistent and to support affirming dismissal as to Dr. Wilcox.
Barry v. Screwmen's Benev. Ass'n, 67 Tex. 250, 3 S.W. 261 (1887)	Cited by dissent on pleading principles (alternative pleadings).	Used by the dissent to support the proposition that parties may plead alternative, even inconsistent, theories, and to argue the pleadings were mutually destructive.
Rowe v. Horton, 65 Tex. 89 (1885)	Cited by dissent regarding pleading rules and alternatives.	Invoked by the dissent in its analysis of the sufficiency and consistency of the Garrards' pleadings as to Dr. Wilcox.

Court's Reasoning and Analysis

The court first noted that when special exceptions are sustained for failure to state a cause of action and the plaintiff refuses to amend, the plaintiff's allegations are accepted as true on appeal (Hubler). Applying that standard, the court examined whether existing precedent permitted recovery for mental anguish arising from negligent conduct absent physical injury. The court concluded that Sanchez v. Schindler authorized recovery for mental anguish as part of negligent infliction of emotional trauma and that its language contains no limiting clause requiring death or physical injury. The court therefore held that Sanchez recognized negligent infliction of emotional trauma without requiring a death. Additionally, the court identified Classen v. Benfer, involving loss of a body and recovery for mental pain and suffering, as an independent ground supporting that the Garrards had stated a cause of action. Based on these authorities and accepting the Garrards' allegations as true, the court sustained appellants' points of error one and three, reversed the dismissal of the second amended petition, and remanded for trial; it did not reach point of error two.

Holding and Implications

REVERSED AND REMANDED.

Direct effect: The trial court's order dismissing the Garrards' second amended petition was reversed and the cause remanded for trial. The court recognized that negligent infliction of emotional trauma can give rise to recovery for mental anguish without proof of physical injury, and it identified an alternative supporting authority in Classen v. Benfer. The opinion does not purport to establish new controlling precedent beyond applying existing authorities to the pleadings in this case.

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James GARRARD, et ux, Appellants, v. ST. ELIZABETH HOSPITAL, et al., Appellees.

BURGESS, Justice.

Mr. and Mrs. James Garrard brought suit initially against St. Elizabeth Hospital alleging negligence and gross negligence. Their first amended petition added Dr. H.R. Wilcox and Dr. Dave Frueh as defendants and dropped allegations of gross negligence and their claims for punitive damages. A second amended petition dismissed Dr. Frueh as a party and alleged specific acts of negligence and specific elements of damage.

Thereafter, the remaining two defendants filed special exceptions contending the Garrards had failed to state a claim for which relief could be granted. The court sustained these exceptions and, on the refusal of the plaintiffs to further amend, dismissed the plaintiff's petition.

The plaintiff's second amended petition alleged that Mrs. Garrard was admitted to St. Elizabeth Hospital for the anticipated delivery of her second child. At the time of the delivery, it was discovered that Mrs. Garrard was carrying twins. A male infant was born alive and healthy. A female infant was still-born. The attending physician and the father agreed to have an autopsy performed on the body of the still-born infant. At some time after the delivery, but prior to the autopsy, the body of the infant was delivered to a mortuary and disposed of in an unmarked, common grave without the knowledge or consent of the Garrards. The petition then alleged specific acts of negligence committed by the hospital and the pathologist. The Garrards sought damages for mental anguish.

The special exceptions of the defendants alleged the Garrards had not plead any intentional or willful act, gross negligence, breach of contract, physical injury or a cause of action under the wrongful death or survival statute, and thus, the Garrards, having only plead mental anguish arising out of a negligence cause of action, had not stated a cause of action upon which relief could be granted.

When the trial court sustains special exceptions for failure to state a cause of action, a plaintiff can refuse to amend and test the court's ruling on appeal. Furthermore, for the purposes of appeal, the allegations of the plaintiff's petition must be accepted as true. Hubler v. City of Corpus Christi, 564 S.W.2d 816 (Tex.Civ.App. — Corpus Christi 1978, writ ref'd n.r.e.).

Our court has held that Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), authorized the recovery for mental anguish without proof of physical injury or conduct worse than negligence. Baptist Hospital of Southeast Texas, Inc. v. Baber, 672 S.W.2d 296 (Tex.App. — Beaumont 1984, writ granted). See also, Missouri Pacific R. Co. v. Vlach, 687 S.W.2d 414 (Tex.App. — Houston [14th Dist.] 1985, no writ).

The appellees argue that Sanchez is distinguishable because of the death involved and their argument would carry over to Baptist Hospital. However, Sanchez specifically states:

"A plaintiff should be permitted to prove the damages resulting from a tortfeasor's negligent infliction of emotional trauma. [Citation omitted] This includes recovery for mental anguish."

This language does not have a limiting clause. We believe Sanchez recognized the tort of negligent infliction of emotional trauma and does not require a death to be involved.

Should our Supreme Court re-examine Sanchez in a different light, there is an additional exception on which the Garrards have stated a cause of action. Classen v. Benfer, 144 S.W.2d 633 (Tex.Civ.App. — San Antonio 1940, writ dism'd judgmt. cor.), was a case involving the loss of a body upon a re-interment and upheld a recovery where the only actual damages were the ones resulting from mental pain and suffering. We concur with such an exception, if there need be one. We, therefore, sustain points of error numbers one and three and do not reach point of error number two. The order dismissing the plaintiff's second amended petition is reversed and the cause is remanded for trial.

REVERSED AND REMANDED.

BROOKSHIRE, Justice, concurring and dissenting.

I concur only in the results reached by the majority opinion, as to St. Elizabeth Hospital. Respectfully, I dissent from the Court's opinion concerning Dr. H.R. Wilcox. The majority states that, when a trial court sustains special exceptions for failure to state a cause of action and there is a refusal to amend, the allegations of the plaintiffs' must be accepted as true on appeal.

The plaintiffs unequivocally pleaded that St. Elizabeth Hospital was negligent in failing to deliver the stillborn infant to the pathological laboratory and in failing to notify the laboratory that an autopsy consent had been signed. The majority has certainly accepted these allegations against the hospital as true.

There is another allegation that, after the birth of the infant, the body was delivered to Broussard's Mortuary by the hospital without informing the plaintiffs. No allegation exists that Dr. Wilcox was ever in possession of the infant. No allegation had been pleaded that he was notified that a consent to perform an autopsy had been signed. Under these unequivocal allegations — being accepted as true by the majority — it should be held that no violation of any responsibility or duty is alleged against the doctor. Under the present pleadings, there is no allegation alleging that the doctor was ever in contact with the plaintiffs — nor did he ever have possession of the stillborn child.

The plaintiffs' Second Amended Petition [sic] alleges that Dr. Wilcox was negligent in failing to insure that the body was delivered to his lab. Under the present pleadings, I would not hold that Dr. Wilcox is an insurer.

The majority, apparently, relies on the doctrine that a party can plead in the alternative. I agree. The allegations in the tested pleadings are mutually destructive. Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031 (1937); Barry v. Screwmen's Benev. Ass'n, 67 Tex. 250, 3 S.W. 261 (1887); Rowe v. Horton, 65 Tex. 89 (1885); TEX.R.CIV.P. 45(b) and TEX.R.CIV.P. 47(a). Hence, I would affirm the trial court's ruling only as to Dr. Wilcox.

However, the hospital contends that a recovery of money damages for mental anguish, resulting from the loss of the body of a stillborn infant, cannot be based on simple negligence. I disagree. Appellees maintain that such a recovery must be based on intentional or willful conduct, gross negligence, breach of contract, or some type of personal, physical injury. Appellees also concede that such a recovery is allowable as an element of damages pursuant to the Wrongful Death or Survival Statutes. The majority correctly decides that a cause of action lies for the negligent infliction of mental anguish and emotional distress without a physical injury.

Since a remand has been ordered, I would also require the Appellants to replead. St. Elizabeth Hospital and the doctor are entitled to fair notice of that of which they must defend against. TEX.R.CIV.P. 45 and 47. Amended pleadings, in accordance with Rules 45 and 47, will enable the diligent trial judge to make more informed rulings on the evidence and will be very helpful to him in drafting the special issues.