Opinion
No. 21-0238
05-13-2022
PEDIATRICS COOL CARE, et al., Petitioners, v. Ginger THOMPSON, Individually and as the Representative of the Estate of A.W. (Deceased), and Brad Washington, Respondents
Diana L. Faust, Kyle M. Burke, R. Brent Cooper, Michelle E. Robberson, Cooper & Scully, P.C., Dallas, Edward P. Quillin, Quillin Law Firm, P.C., Dallas, Thomas Glenn Ingram, Stacy Conder Allen, LLP, Dallas, for Petitioners Jose J. Salguero, M.D. PA, Pediatrics Cool CareRobinson, Jenelle, Salguero, M.D., Jose J. Diana L. Faust, Kyle M. Burke, R. Brent Cooper, Cooper & Scully, P.C., Dallas, Edward P. Quillin, Quillin Law Firm, P.C., Dallas, Thomas Glenn Ingram, Stacy Conder Allen, LLP, Dallas, for Petitioner Kawalek, Allyn. Steven E. Aldous, Forshey Prostok LLP, Dallas, Heidi Vicknair, Jason Charles Webster, The Webster Law Firm, Houston, for Respondents.
Diana L. Faust, Kyle M. Burke, R. Brent Cooper, Michelle E. Robberson, Cooper & Scully, P.C., Dallas, Edward P. Quillin, Quillin Law Firm, P.C., Dallas, Thomas Glenn Ingram, Stacy Conder Allen, LLP, Dallas, for Petitioners Jose J. Salguero, M.D. PA, Pediatrics Cool CareRobinson, Jenelle, Salguero, M.D., Jose J.
Diana L. Faust, Kyle M. Burke, R. Brent Cooper, Cooper & Scully, P.C., Dallas, Edward P. Quillin, Quillin Law Firm, P.C., Dallas, Thomas Glenn Ingram, Stacy Conder Allen, LLP, Dallas, for Petitioner Kawalek, Allyn.
Steven E. Aldous, Forshey Prostok LLP, Dallas, Heidi Vicknair, Jason Charles Webster, The Webster Law Firm, Houston, for Respondents.
Justice Bland delivered the opinion of the Court, in which Chief Justice Hecht, Justice Devine, Justice Blacklock, Justice Busby, Justice Huddle, and Justice Young joined.
In this health-care liability case, we must determine the appropriate causation standard to apply. The facts are tragic. A teen committed suicide after seeking treatment for depression from her pediatric health-care providers. The expert testimony at trial established the medical providers’ negligence, but it did not establish that, but for the negligence, the teen would not have committed suicide. In affirming a verdict for the teen's family, the court of appeals incorrectly omitted an analysis of but-for causation. Because the testimony does not establish but-for causation, and our precedent requires it in cases like this one, we reverse and render.
I
A
Pediatrics Cool Care is a pediatric clinic supervised by Dr. Jose Salguero. On March 1, 2012, Ginger Thompson brought A.W., her thirteen-year-old daughter, to the practice, where A.W. had been a patient since 2010. A.W. told Jenelle Robinson, a physician assistant employed by the practice, that she was feeling "sad all the time" and "can't control her feelings." After a brief consultation, Robinson diagnosed A.W. with depression and prescribed Celexa, an anti-depressant. Robinson could not recall whether she warned A.W. and Thompson that Celexa could cause suicidal ideation and to watch A.W. closely, but she testified it was her usual practice to do so. Robinson also could not recall whether she had asked A.W. if she currently was experiencing any suicidal ideation or thoughts of self-harm, though she thought it was "likely" she had made that inquiry.
Robinson did not ask to interview A.W. outside of Thompson's presence. Nor did Robinson use diagnostic checklists the clinic employed for adolescents presenting with depression.
Robinson said that she "strongly recommended" that A.W. seek counseling. The medical record reflects that Robinson provided a list of counselors to Thompson. Thompson, however, testified that the practice did not. Even so, Thompson said that A.W. had refused to go to counseling because "she wanted to try the medication and that she had a—she had a teacher at school she could talk to and she didn't want to go and talk to a stranger." Robinson testified that she instructed A.W. to follow up one week later, but Thompson denied that Robinson gave that instruction.
Although Robinson had prescribed thirty days’ worth of Celexa, the medical assistant who transcribed the record indicated that A.W. was to receive three thirty-day refills. Robinson testified that the U.S. Drug Enforcement Agency limits Celexa prescriptions to ninety days.
About six weeks later, on April 17, A.W. returned to the practice, complaining of migraine headaches. Nurse practitioner Allyn Kawalek examined A.W. According to the medical records, both A.W. and Thompson reported a positive change in A.W.’s mood. Almost two years after the visit, and after A.W.’s parents filed this suit, an unknown person altered the record of this visit to add the phrase "patient is to come back in 30 days for follow-up."
On July 31, Thompson called the practice, asking to refill A.W.’s Celexa prescription. Bernadette Aguillon, a medical assistant, took Thompson's call. She initially told Thompson that Thompson could refill the Celexa over the phone. Aguillon later saw that A.W. was overdue to follow up, and she attempted to call Thompson back to schedule an appointment. After failing to reach Thompson, Aguillon approved the refill, despite lacking authorization from Dr. Salguero or any of the providers. Aguillon testified that she regularly wrote prescription refills on Dr. Salguero's behalf without consulting him. After learning of A.W.’s suicide, Aguillon attempted to alter A.W.’s medical records to conceal her error.
About two weeks later, on the evening of August 14, Thompson discovered her daughter's body. A.W.’s cause of death was determined to be suicide by an overdose of Benadryl.
Thompson testified that she had no idea that A.W. was suicidal. Neither Thompson nor her husband had noticed anything unusual about A.W.’s behavior leading up to her suicide. A.W. never revealed to either her mother or her father that she had any suicidal thoughts. None of A.W.’s friends reported to Thompson that they had suspected A.W. to be suicidal, or even that she was depressed. A.W.’s father, Brad Washington, testified that A.W. did not seem sad or depressed the last time they visited, about two weeks before her death. A.W. was fourteen years old at the time of her death.
B
Thompson and Washington sued Pediatrics Cool Care, Dr. Salguero, Robinson, and Kawalek (collectively, the providers) for negligence and gross negligence. The jury heard expert testimony from Dr. Herschel Lessin, a pediatrician, on the deficiencies in the providers’ care, including:
The parents sued Dr. Salguero individually and through his professional association, Jose Salguero, M.D., P.A.
• Robinson's "[t]otally inadequate" workup, particularly her failure to interview A.W. outside the presence of her mother, failure to use a standardized depression-screening questionnaire, and failure to determine the scope and severity of A.W.’s depression;
• Robinson's decision to prescribe Celexa after a single visit;
• The transcription error resulting in A.W.’s receiving three refills of Celexa ;
• The providers’ failure to follow up with A.W.;
• Failures in the practice's record-keeping, including insufficient documentation, alterations made after the fact, and the providers’ failure to review the records to catch errors; and
• Aguillon's decision to refill the Celexa prescription without authorization.
Dr. Lessin did not testify as to the cause of A.W.’s death.
A.W.’s parents presented Dr. Fred Moss, a psychiatrist, to testify that the health-care providers’ negligence caused A.W.’s death. Though he testified that A.W. should not have been prescribed Celexa, Dr. Moss confirmed that the Celexa was not a cause of A.W.’s suicide:
Q. Now, are you here to tell the jury that this Celexa caused her suicide?
A. Oh, no.
Moss also testified that he was unaware of any literature reporting that Celexa caused suicide.
Dr. Moss instead testified that, had Robinson asked the right questions when she examined A.W. for depression, A.W.’s answers would have "created pathways towards treatment options" that then would have prevented A.W. from committing suicide:
Q. All right. Now, I want you to talk about the—can you—can you tell us the ways, sir, as you sit here today, that the treatment options that were available to [A.W.] to—that you believe, based upon reasonable medical probability, would have prevented her committing suicide on August 14th of 2012?
A. Sure. So they're really going to be defined in no small part for—based on the answers to the questions that weren't asked in [A.W.]’s case, unfortunately, but if would—they would have been asked would have created pathways towards treatment options that would then be made available and then would have prevented her from committing—from, unfortunately, committing suicide on August 14th, 2012.
Based on "answers to the questions that weren't asked," Dr. Moss listed several "pathways" that A.W. and her parents could have explored, including counseling, nutritional counseling, group therapy, sports, exercise, meditation, and establishing relationships with teachers and advocates.
Dr. Moss testified that, had Robinson interviewed A.W. outside her mother's presence, and had A.W. disclosed any suicidal tendencies she was feeling to Robinson, then Robinson would have had "a great space to work from." In Dr. Moss's experience, exposing suicidal ideation results in "kids find[ing] a reason to live." Dr. Moss testified that "an accumulation" of the providers’ errors resulted in a failure to create pathways and connections for further treatment:
It's a cluster of so many things, so many things, so many acts and maybe more so. So many omissions of all the things I've listed here plus some that would have created pathways, that could have created connections, that could have created—I don't even know what it would have created had they been addressed initially.
When pressed whether a particular path would have prevented A.W.’s suicide, Dr. Moss responded, "I cannot list a specific—one specific path that [Robinson] might have taken that would have prevented suicide reliably," and repeated that "a cluster of a cumulative number of things" led to A.W.’s suicide. He further conceded that, even had the providers done everything correctly, A.W. still might have committed suicide. But, if the providers had taken an adequate history, "several cumulative factors would have showed up, maybe, just maybe more likely than not preventing her suicide."
Moss formed his opinions based on his extensive psychiatric experience treating pediatric and adult patients. He also relied on literature that connected the use of psychotherapy in addition to medication as leading to "better outcomes," though not preventing suicide. When asked on cross-examination about the certainty of his conclusions, he explained that "[t]his work that we're speaking of is not grounded in science."
The jury also heard expert testimony from Dr. Armando Correa, an assistant professor in the Department of Pediatrics at Baylor College of Medicine. Dr. Correa testified that "suicide in teenagers is usually impulsive. It's unforeseeable. It's just an action that they take without thinking of the consequences. And, sadly, most of the time it cannot be prevented." Of the two thousand teenage suicides per year, Dr. Correa testified that "the majority of those are impulsive." Dr. Correa asserted with "a reasonable degree of medical probability" that A.W.’s suicide "was an impulsive, unpreventable act." However, he conceded that "an ordinary prudent physician can foresee that if you—if you don't properly treat a 14 year old with depression that suicide can occur."
The trial court asked the jury whether each of the providers proximately caused A.W.’s death. The charge defined proximate cause as "a cause that was a substantial factor in bringing about an occurrence, and without which cause, such occurrence would not have occurred." Additionally, "the act or omission complained of must be such that a [provider] using ordinary care would have foreseen that the occurrence, or some similar occurrence, might reasonably result therefrom. There may be more than one proximate cause of an occurrence."
Neither side objected to the definition of proximate cause.
The trial court held the providers to the standard of care he or she should have provided as a pediatrician, physician assistant, or nurse practitioner, respectively.
The jury found that Dr. Salguero and Robinson proximately caused A.W.’s death, but found Kawalek—the last provider to see A.W.—not liable. The jury rendered a multi-million-dollar verdict, which the trial court reduced to $1.285 million, plus interest, on final judgment.
The providers who were found liable appealed, challenging the sufficiency of the liability and causation evidence supporting the verdict, the admission of Dr. Moss's testimony, and the trial court's calculation of prejudgment interest. The court of appeals affirmed. Although the trial court had submitted a but-for, or cause-in-fact, causation standard as part of the jury's charge on proximate cause, the court of appeals omitted any analysis of it, citing our opinion in Bustamante v. Ponte. The court instead confined its analysis to substantial-factor causation. Using this relaxed causation standard, the court of appeals held that Dr. Moss's testimony was sufficient evidence that Dr. Salguero's and Robinson's negligence caused A.W.’s death. The court of appeals further concluded that Dr. Moss's testimony was factually grounded and reliable, based upon his clinical experience and training as a psychiatrist. Finally, the court of appeals upheld the interest calculation. We granted the providers’ petition for review.
638 S.W.3d 218, 244 (Tex. App.—Houston [14th Dist.] 2021).
Id. at 232 (citing Bustamante v. Ponte , 529 S.W.3d 447, 457 (Tex. 2017) ).
Id. at 232–34.
Id. at 238–40.
II
Ordinarily, to recover for medical malpractice, a plaintiff must prove "to a reasonable medical probability that the injuries complained of were proximately caused by the negligence of a defendant." The two elements of proximate cause are cause-in-fact and foreseeability. A defendant's negligence is the cause-in-fact of a plaintiff's injury if "(1) the negligence was a substantial factor in causing the injury, and (2) without the act or omission, the harm would not have occurred." Courts refer to these two components as "substantial factor" causation and "but for" causation.
Gunn v. McCoy , 554 S.W.3d 645, 658 (Tex. 2018).
Id.
Id.
In this Court, the medical providers do not challenge the jury's negligence findings. Rather, the providers contend that the court of appeals erred in its legal-sufficiency review when it declined to conduct any but-for causation analysis. Had the court of appeals employed the correct causation standard, the providers argue, it would have concluded that Dr. Moss's testimony was legally insufficient to support a finding that Dr. Salguero and Robinson proximately caused A.W.’s suicide.
In answering the providers’ causation challenge, we must first determine the appropriate causation standard, and then evaluate the evidence for legal sufficiency under that standard.
The providers also appeal the admission of Dr. Moss's testimony and the prejudgment interest calculation. Because we hold that no legally sufficient evidence of causation supports the verdict, we do not reach these additional issues.
A
In a typical medical malpractice case, the plaintiff must adduce evidence that the defendant's negligence was a substantial factor in causing the injury and that, but for the defendant's negligence, the plaintiff would not have been injured. Our Court has applied this causation standard in two other medical malpractice cases involving a patient's suicide.
Gunn , 554 S.W.3d at 658.
In Providence Health Center v. Dowell , we rendered judgment for a hospital, holding that the medical providers’ conduct was too attenuated to be a cause of their patient's suicide. The patient had expressed suicidal intentions, but the hospital released him after he refused inpatient treatment and promised to seek care at a mental health clinic. Thirty-three hours later, he hanged himself. Our Court held that the hospital's decision to release the patient was not a proximate cause of his death. In reaching that conclusion, we observed that there was no evidence the patient would have consented to treatment, the expert never testified that hospitalization would have prevented the patient's suicide, and the decision to discharge the patient was "too remote from his death in terms of time and circumstances." For those reasons, we concluded that "the defendants’ negligence was too attenuated from the suicide to have been a substantial factor in bringing it about."
262 S.W.3d 324, 329–30 (Tex. 2008).
Id. at 326–28.
Id. at 325.
Id. at 328.
Id.
Id. at 330.
In Rodriguez-Escobar v. Goss , we similarly rendered judgment for the defendant physician because no evidence supported a but-for causal link between the physician's treatment and the patient's suicide. In that case, the police brought the patient to the hospital after she had discharged a shotgun inside her bedroom and expressed suicidal intent. The patient's son obtained a Mental Health Warrant for Emergency Detention to have her involuntarily admitted to a state mental health hospital. The physician who conducted triage at the state hospital concluded that the patient did not meet the criteria for involuntary hospitalization and discharged her. Three days later, the patient committed suicide. We considered whether the evidence was "legally sufficient to support the finding that absent the negligence of [the physician]—but for his negligence—[the patient] would not have committed suicide."
392 S.W.3d 109, 114–15 (Tex. 2013) (per curiam).
Id. at 111.
Id.
Id.
Id.
Id. at 114.
The expert in Rodriguez-Escobar testified that "if [the patient] had been in the hospital, I don't think that she would have been able to kill herself, at least not shoot herself. And hopefully if a plan had been in place, then her chances of having a better life would have been there." The expert conceded "I don't know long term what her prognosis would have been. It would have depended upon a lot of things." Following our decision in Providence , our Court held that the expert's testimony did not establish that the physician's negligence proximately caused the patient's death.
Id.
Id.
Id. at 115.
Citing our decision in Bustamante v. Ponte , the court of appeals disregarded the cause-in-fact analysis applied in Providence and Rodriguez-Escobar , instead announcing that it would "apply the substantial factor test," to the exclusion of requiring but-for causation. In Bustamante , we rejected "a stringent but-for causation test" for an individual actor when the evidence demonstrates that concurrent acts of negligence combined to cause the injury. Bustamante , however, did not eliminate but-for causation for medical malpractice cases involving multiple negligent actors. Rather, when the facts establish that concurrent causation exists for multiple negligent actors—each whose negligence is itself a but-for cause of the injury in question absent the others’ concurrent negligence—then the but-for requirement shifts from the individual level to the aggregate level of defendant tortfeasors.
638 S.W.3d at 232 (citing Bustamante , 529 S.W.3d at 457 ).
E.g., Bostic v. Georgia–Pacific Corp. , 439 S.W.3d 332, 344–45 (Tex. 2014) (applying substantial-factor causation to a toxic tort case where the plaintiff suffered exposure from multiple sources).
Bustamante concerned a premature infant who had a 90% to 100% chance of developing retinopathy of prematurity, an abnormal blood-vessel growth pattern that can cause diminished vision or blindness. Experts testified that a properly screened and diagnosed infant would have received a laser therapy that was "successful in over 75% of ‘all comers’ " and, when timely, prevented retinal detachment in almost 90% of eyes studied. The failure to timely diagnose and treat the infant's retinopathy lay equally on two physicians, Dr. Ponte and Dr. Llamas, and a jury found both responsible. A divided court of appeals reversed, holding that there was no evidence that either physician's negligence was a but-for cause of the infant's injuries because the other physician's negligence also contributed to causing the injury. "Specifically, the court of appeals criticized [the expert] for testifying that it was ‘more likely than not’ [the infant] would have a sighted life if not for Dr. Ponte's and Dr. Llamas's combined negligence, rather than quantifying the negative impact of each negligent act."
Id. at 453–54.
Id. at 454.
Id.
Id.
Our Court held that the court of appeals erred in applying "a stringent but-for causation requirement in a case that should have been resolved under the substantial-factor test." Because both physicians had failed to diagnose and treat the retinopathy, it was impossible to say that, but for the actions of either physician, the infant would have a sighted life. The evidence of but-for causation was nonetheless present at the aggregate level—but for the combined negligence of Dr. Ponte and Dr. Llamas, the infant more likely than not would have a sighted life. And, had either physician acted alone, his negligence in failing to diagnose retinopathy would have been a cause-in-fact of the injury.
Id. at 457.
This case also presents multiple defendants. If the negligent acts of each provider are so concurrent that they cannot be examined in isolation, the correct approach is to consider whether each provider's individual negligence was a substantial factor in A.W.’s death and whether the providers’ combined negligence was a but-for cause of A.W.’s death. The court of appeals erred in eliminating a but-for causation requirement.
We do not decide whether the acts of each provider could not be examined for but-for causation, as in Bustamante , because we conclude the parents provided no evidence that the providers’ combined negligence was a but-for cause of A.W.’s death.
The parents further argue that our decision in Windrum v. Kareh suggests that Bustamante eliminated but-for causation in medical negligence cases involving multiple actors. In Windrum , we rejected the court of appeals’ reliance on the physician's failure to diagnose and treat not being the "immediate" cause of death to demonstrate that substantial-factor causation was lacking. Instead, we held, "the proof required is that the negligence be a substantial factor, not that it be the ‘immediate cause.’ " Contrary to the parents’ suggestion, however, our Court required but-for causation: "The ultimate question, then, ‘is whether, by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred. ’ " We have not eliminated but-for causation; we do not do so today.
581 S.W.3d 761, 777 (Tex. 2019).
Id. at 778.
Id.
Id. at 778–79 (quoting Bustamante , 529 S.W.3d at 456 ) (emphasis added).
B
In assessing the legal sufficiency of the evidence supporting the finding that the providers’ combined negligence was a but-for cause of A.W.’s death, we consider the evidence in a light favorable to the verdict. In reviewing the legal sufficiency of the evidence, we evaluate "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review."
City of Keller v. Wilson , 168 S.W.3d 802, 820–22, 827 (Tex. 2005).
Id. at 827.
To prove that medical negligence proximately caused an injury or death requires expert testimony. An expert's scientific testimony must be "grounded ‘in the methods and procedures of science.’ " "Otherwise, the testimony is ‘no more than subjective belief or unsupported speculation.’ " Thus, an expert's bare assertions about causation do not suffice. Nor can the expert rely on "magic language" to establish that the testimony is based on reasonable medical probability instead of possibility, speculation, or surmise. "[I]f the record contains no evidence supporting an expert's material factual assumptions, or if such assumptions are contrary to conclusively proven facts, opinion testimony founded on those assumptions is not competent evidence." Finally, when the evidence demonstrates other plausible causes of an injury, the expert must exclude those other causes with reasonable certainty.
Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 578 (Tex. 2006) (quoting E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549, 557 (Tex. 1995) ).
Id. (quoting Robinson , 923 S.W.2d at 557 ).
Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997).
Id. at 712.
Gunn , 554 S.W.3d at 663.
Id. at 665.
Dr. Moss's testimony fails to do more than speculate that, but for the providers’ negligent care, A.W. would not have committed suicide. His conclusions are not based on facts in this record. He testified that if the providers had questioned A.W. outside her mother's presence, as they should have, and if A.W. then had divulged information about any current suicidal ideation, and if A.W. and her parents then had availed themselves of resources that should have been provided in response to that information, then "based upon reasonable medical probability" A.W. would still be alive:
Q: ... [C]an you tell us the ways, sir, as you sit here today, that the treatment options that were available to [A.W.] to—that you believe, based upon reasonable medical probability, would have prevented her committing suicide on August 14th of 2012?
A: Sure. So they're really going to be defined in no small part for—based on the answers to the questions that weren't asked in [A.W.]’s case, unfortunately, but if would—they would have been asked would have created pathways towards treatment options that would then be made available and then would have prevented her from committing—from, unfortunately, committing suicide on August 14th, 2012.
Dr. Moss's conclusion relies on a series of assumptions, beginning with the assumption that, had Robinson properly conducted A.W.’s intake assessment, A.W. would have disclosed that she was suicidal, which further assumes that she had experienced such thoughts at that point. Dr. Moss then assumes that A.W. would have availed herself of one or more "pathways towards treatment." Finally, he assumes that A.W. and her parents’ engagement along these pathways would have prevented A.W. from committing suicide.
To properly conclude that this attenuated chain of events proximately caused A.W.’s suicide requires an evidentiary basis. The first assumption—that A.W. would have disclosed that she was suicidal—is contradicted by the uncontroverted testimony that A.W. had never disclosed any suicidal ideation to anyone. There is no evidence to suggest that A.W. was, in fact, suicidal at the time of her intake assessment or at any other point before August 14. Dr. Moss confirmed that he could not know how A.W. would have responded to a proper diagnostic evaluation:
Of the hallmarks of major depression Dr. Moss identified ("things like psychomotor retardation, meaning moving through the world slower than you normally do. Or anhedonia, meaning no longer having the things that used to bring joy to you bring joy anymore. Or sleep or appetite disturbance. Sleeping too much, sleeping too little. Eating too much, eating too little.... And then suicidal ideation is actually one of those criteria."), the testimony supports that A.W. regularly slept late. Otherwise, Thompson testified that A.W. "didn't appear to be very sad or wouldn't get out of bed or having problems or in school. There was none of that." Thompson also testified that A.W. had no changes in friendships and was considered popular in school. Washington testified that he did not even notice that A.W. was depressed.
Q. The questions and inquiries you believe should have been made that you've listed, the different paths to go down that—those inquiries, questions, you don't know what the answers to those questions would have been, do you?
A. I do not.
Q. So you don't know if the answer to those questions, then, because you don't know what the answers would have been, you don't know whether the answers to those questions would be something that would prevent [A.W.] from committing suicide?
A. I don't know that, correct.
Dr. Moss's second assumption—that A.W. and her parents would have consented to any recommended pathways toward treatment—is belied by Thompson's testimony that A.W. had refused to go to counseling. This assumption, which underpins his conclusion, is not only not supported but is contradicted by the evidence presented.
Dr. Moss's third assumption—that additional treatments would have prevented A.W.’s suicide—is also not reliably supported. Of the pathways Dr. Moss suggested, he could not identify a particular treatment or combination of treatments that "would have prevented suicide reliably." Pressed about whether the cumulative effect of all the proposed treatments would have reliably prevented suicide, Dr. Moss testified that "upon pursuing all the pathways that I brought up and more, several cumulative factors would have showed up, maybe, just maybe more likely than not preventing her suicide."
Even if the providers had done everything perfectly, Dr. Moss agreed that A.W. "might have still committed suicide," though he thought it was "more likely than not" that she would not have. This assertion was based on his experience treating thousands of minors for depression, not one of whom had committed suicide. Dr. Moss did not, however, provide a reliable basis to differentiate between patients who, with ordinary psychiatric care, would not commit suicide, and those who would, even with proper care. His conclusion was "not grounded in science." Dr. Moss testified that unspecified literature discussed "coupling psychotherapy with—with medication in a more appropriate form and a form of treatment that leads to better outcomes," but he did not opine that those treatments prevent suicide.
Dr. Moss later agreed that he could not conclude that A.W. would not have committed suicide if the providers had not been negligent:
Q. You cannot exclude the fact that [A.W.] might have committed suicide even had Dr. Salguero, Allyn Kawalek, and Jenelle Robinson would have treated her like you believe she should have been treated, true?
A. I certainly cannot conclude that one.
While Dr. Moss appropriately relied on his experience in treating patients with depression, his connection to A.W.’s case relies on facts not borne out by the record. His first two assumptions about what A.W. might have done are speculative in light of Thompson's testimony that A.W. never expressed suicidal ideation to anyone and had refused counseling. Thus, his experience with psychiatric patients who accept treatment, in general, having better outcomes presents no basis for concluding that A.W. would have been such a patient. Dr. Moss asserted that his patients were "just like" A.W., but he did not connect that assertion with evidence of why A.W. was a treatable patient and not a patient who would have committed suicide despite treatment.
We do not require certainty to the extent the dissent suggests. Expert opinions, however, must be based on the facts in the record and not controverted by them, even when relying on experience and training as a basis for a medical opinion. Dr. Moss presented no factual, verifiable basis for concluding what A.W. would have done had the medical providers asked questions outside her mother's presence, followed up, or provided a list of counselors or other treatment options.
Post at –––– (suggesting we require "exactly what information the [providers] would have obtained," "exactly which ‘pathways’ or treatment options the [providers] should have pursued," and which treatments "would certainly have prevented A.W.’s suicide").
Dr. Moss's testimony also did not exclude the alternative possibility proposed by Dr. Correa: that A.W.’s suicide was a spontaneous, impulsive—and thus, unpreventable—act. There is no evidence in the record at all that the jury could rely on to exclude this possibility. "[W]hen the facts support several possible conclusions, only some of which establish that the defendant's negligence caused the plaintiff's injury, the expert must explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert's opinion."
Gunn , 554 S.W.3d at 665. The dissent does not explain how Dr. Moss excluded the possibility that A.W.’s suicide was impulsive rather than long-contemplated.
Our precedent confirms the infirmity of the causation evidence here. Dr. Moss's testimony is like the expert testimony in Rodriguez-Escobar , which similarly conditioned better outcomes on the patient's availing herself of additional treatment: "hopefully if a plan had been in place, then her chances of having a better life would have been there." It is also like the testimony in Providence that our Court rejected as speculative: the plaintiffs’ expert, "when asked directly about whether hospitalization would have prevented [the] suicide ..., answered only that [the patient] ‘would have improved’ and been at a ‘lower risk’ of suicide when he left." In Providence , moreover, the patient and his loved ones had reported his suicidal thoughts and his attempts to take his life to the health-care providers. The evidence in Rodriguez-Escobar and Providence that the patients would have lived is stronger than that present here. Both cases presented more evidence of the patients’ mental health, and the denied treatment in both cases had a closer temporal connection to the suicide.
Id. at 326–27.
We do not hold that medical malpractice could never be the cause of a suicide. Nor, by our holding, do we countenance the providers’ conduct. Negligence, however, cannot substitute for legally sufficient evidence of causation.
* * *
There is no evidence that the providers’ care proximately caused A.W.’s suicide. We therefore reverse the court of appeals’ judgment and render judgment for the providers.
Justice Busby filed a concurring opinion.
Justice Boyd filed a dissenting opinion, in which Justice Lehrmann joined.
Justice Busby, concurring.
The U.S. Centers for Disease Control and Prevention recently published national survey results showing "an accelerating mental health crisis among adolescents" who were isolated by the coronavirus pandemic in the first six months of 2021, with "more than 4 in 10 teens reporting that they feel ‘persistently sad or hopeless,’ and 1 in 5 saying they have contemplated suicide." Teenage girls "are far worse off than their male peers" : data show "a 50% increase in girls being admitted to the hospital for suspected suicide attempts between early 2019 and 2021."
Moriah Balingit, "A Cry for Help": CDC Warns of a Steep Decline in Teen Mental Health , Wash. Post (Mar. 31, 2022), https://perma.cc/6JNN-5AG4.
The physician assistant testified that the visit was "probably" less than thirty minutes. But accepting the evidence in the light most favorable to the jury's verdict, as we must, the visit lasted "[m]aybe five minutes," as Mother testified. And—according to Mother—the physician assistant did not "strongly recommend[ ]" that A.W. seek counseling or provide a list of counselors. Ante at ––––. To the contrary, according to Mother's testimony, Mother asked if the physician assistant would provide a list of counselors who would accept Mother's insurance because she "felt like that might be something [A.W.] would benefit from." The physician assistant told Mother that the nurse would provide a list, but she never did, so Mother left and called back later to request one. The clinic said they would mail her one, but they never did. By then, A.W. was telling Mother that she didn't want to see a counselor.
Id.
The Court first concludes that the court of appeals erred by requiring only that the defendants’ negligence was a "substantial factor" in causing A.W.’s suicide when it should have required the evidence to also show that A.W. would not have committed suicide "but for" the defendants’ negligence. Ante at ––––. I agree with the Court's holding on this point. But the trial court properly instructed the jury to find both substantial-factor and but-for causation, so we can review the sufficiency of the evidence under that proper standard.
Eleanor Klibanoff, In Pandemic's Isolation, an Alarming Number of Teenage Girls Are Attempting Suicide , Tex. Tribune (Feb. 1, 2022), https://perma.cc/6EXU-HJ3S.
The Court particularly emphasizes the lack of evidence that A.W. was suicidal on March 1, when she first sought help for her "severe depression." Ante at ––––. But Dr. Moss explained at length his opinion that the defendants should have followed up with A.W. on a weekly basis after that first appointment to ensure that she was well and receiving the help she needed, and the defendants no longer dispute that they were negligent by failing to do so. Even if A.W. was not suicidal on March 1, she clearly became suicidal sometime between that date and August 14. Considering the undisputed evidence that Celexa can cause thoughts of suicide and self-harm, a reasonable jury could have concluded that the failure to properly follow up with A.W. was a proximate cause of her suicide.
Youth suicide and depression rates were already rising long before the pandemic: "Between 1950 and 1988, the proportion of adolescents aged between fifteen and nineteen who killed themselves quadrupled. Between 2007 and 2017, the number of children aged ten to fourteen who did so more than doubled." And "in 2019, one in three high school students and half of female students reported persistent feelings of sadness or hopelessness, an overall increase of 40% from 2009." The American Academy of Pediatrics has characterized these "worrying trends in child and adolescent mental health" as a "national emergency," while the U.S. Surgeon General has called them "alarming" and their effects "devastating."
Andrew Solomon, The Mystifying Rise of Child Suicide , The New Yorker (Apr. 4, 2022), https://perma.cc/LJ6V-UNEK.
Office of the Surgeon Gen. , U.S. Dep't of Health & Human Servs. , Protecting Youth Mental Health: The U.S. Surgeon General's Advisory 3 (2021).
Solomon, supra note 4.
Office of the Surgeon Gen. , supra note 5.
Amid this "surge in extreme mental distress," it is more important than ever for medical providers to comply with the standard of care, which evidence at trial showed offers young patients in distress—and their families—pathways for survival and a better life to come. The defendant providers in this case no longer challenge the jury's finding that they failed to comply with the standard of care in treating thirteen-year-old A.W., who told them she felt "sad all the time" and "couldn't control her feelings." Less than five months and at least eight separate breaches of the standard of care later, A.W. died by suicide. After this suit was filed, the defendants’ employee added false statements to A.W.’s medical records in an unsuccessful effort to conceal their negligence, as the evidence at trial showed.
Klibanoff, supra note 3.
Ante at 155-56. Sadly, there are indications that such breaches are far too common. "[D]epressed or suicidal children ... remain radically undertreated. There are too few child psychologists and psychiatrists, and most pediatricians are insufficiently informed about depression." Solomon, supra note 4. The Surgeon General recently concluded that "[o]ur health care system today is not set up to optimally support the mental health and wellbeing of children and youth." Office of the Surgeon Gen. , supra note 5, at 21.
Our legal system provides civil, criminal, and administrative remedies for such misconduct that are not exclusive of each other and work together to promote better medical care and prevent future harm to patients. Here, A.W.’s parents brought a common-law civil tort suit against A.W.’s medical providers. No party objected to the trial court's jury charge, which required the parents to prove that the providers’ negligence "proximately caused" A.W.’s death and supplied the usual definition of proximate cause, which demands proof of but-for and substantial-factor causation as well as foreseeability.
As our medical negligence cases involving suicide have shown, this is a difficult causation standard to meet with expert psychiatric testimony. And it was especially difficult to meet here, as the providers’ negligence fell so far below the standard of care that they did not even ask the most basic preliminary questions designed to identify promising pathways for treating A.W.’s severe depression. Our requirements for proving causation should not hold the severity of the providers’ negligence against A.W.’s family, and I do not understand the Court's opinion to do so. It is not the law that if a defendant breaches the standard of care badly enough, it can become impossible for a plaintiff to prove that the patient likely would have lived with proper treatment.
See Rodriguez-Escobar v. Goss , 392 S.W.3d 109, 114–15 (Tex. 2013) (per curiam) ; Providence Health Ctr. v. Dowell , 262 S.W.3d 324, 330 (Tex. 2008).
I agree with the Court, however, that the plaintiffs’ psychiatric expert did not identify a treatment or combination of treatments that likely would have prevented suicide. Nor did he identify any factors that differentiate properly treated patients who nevertheless commit suicide from those who survive, or explain why it was likely that A.W. fell into the latter category. Ante at 162-63. I therefore join the Court's opinion. I also write separately to make two points about what the opinion does not decide. First , this case does not present any question about whether the proximate causation standards we ordinarily apply in medical negligence cases should be tailored in suicide cases to account for the current capabilities and limitations of psychiatric science. Cf. Bostic v. Ga.-Pac. Corp. , 439 S.W.3d 332, 344 (Tex. 2014) ("While but for causation is a core concept in tort law, it yields to the more general substantial factor causation in situations where proof of but for causation is not practically possible or such proof otherwise should not be required."). There is no record before us on this question, and we appropriately express no view on it. Our ordinary causation standards were included in the jury charge without objection, so we must measure the sufficiency of the evidence by the charge as given. See Osterberg v. Peca , 12 S.W.3d 31, 55 (Tex. 2000). I agree with the Court that the variation of but-for causation in multiple-provider negligence cases addressed in Bustamante v. Ponte , 529 S.W.3d 447, 457 (Tex. 2017), does not affect the outcome here. Ante at 159-60, 160 n.38.
Second , although a common-law remedy for medical negligence requires proof that the providers’ negligence caused the patient harm, it is important to be clear that the administrative and criminal remedies available for such negligence do not. Rather, the Texas Medical Board and district attorneys can take independent action to address the accelerating adolescent mental health crisis, helping to promote better medical care for—and prevent future harm to—young Texans and their families.
The Texas Medical Board and its advisory Physician Assistant Board are authorized to regulate the practice of medicine in Texas, which includes the licensing and discipline of providers and the investigation of complaints filed by the Board itself or by private parties. See TEX. OCC. CODE §§ 152.001(a), 154.051(c), 154.057, 155.002(a), 164.001(a), 204.101(4). The Board may discipline a provider who "fails to practice ... in an acceptable professional manner consistent with public health and welfare," id. § 164.051(a)(6); see id. § 204.304(a)(5), such as by "fail[ing] to treat a patient according to the generally accepted standard of care." 22 TEX. ADMIN. CODE § 190.8(1)(A) ; see id. § 185.18(b)(1)(A). Providers also must maintain "adequate" medical records, id. § 165.1(a), and discipline can be imposed for "unprofessional or dishonorable conduct that is likely to deceive or defraud ... or injure the public." TEX. OCC. CODE § 164.052(a)(5) ; see id. § 204.302(4). A physician remains responsible for medical acts delegated to others. See id. § 157.001(b). Disciplinary actions may include license suspension or revocation, probation, public reprimand, counseling, or supervised practice. See TEX. OCC. CODE §§ 164.001, 204.301.
The Texas Nursing Board may discipline nurses for similar actions. See Tex. Occ. Code §§ 301.151, 301.452(b)(10), 301.453, 301.457. Unlike discipline of physicians and physician assistants, discipline of nurses for failure to conform to minimum standards of acceptable nursing practice requires that a patient or other person be exposed unnecessarily to risk of harm, though actual patient injury is not required. See id. § 301.452(b)(14) ; 22 Tex. Admin. Code § 217.11. Nurses may also be disciplined for misconduct, which includes falsifying reports. Tex. Admin. Code § 217.12(6)(A).
In addition, a physician who violates an applicable statute or rule commits a Class A misdemeanor. See id. § 165.151. As with the other sources of enforcement authority, injury to a patient is not an element of the offense. Administrative and criminal remedies are separate from and in addition to common-law remedies, so they are not precluded by any determination regarding the sufficiency of the evidence to support a common-law damages remedy.
With these observations, I join the opinion of the Court.
Justice Boyd, joined by Justice Lehrmann, dissenting.
Much about this case is no longer disputed. It is undisputed that a thirteen-year-old girl (A.W.) showed up with her mother (Mother) at the Pediatrics Cool Care clinic on March 1, 2012, seeking help for "severe depression," an inability to "control her feelings," and feeling "stressed out" and "sad all the time." Mother told the certified physician assistant who saw A.W. at the clinic that day that A.W. had been depressed "for some time," that she had a family history of depression and bipolar disorder, and that Mother herself was taking Celexa for depression.
It is undisputed that the physician assistant visited with A.W. for only a few minutes1 before sending her home with a Celexa prescription, without having consulted the clinic's supervising doctor. The physician assistant failed to perform a psychiatric work-up, failed to utilize a standard questionnaire for assessing depression in adolescents, failed to adequately interview A.W., failed to attempt to talk to her without Mother present, and failed to ask her to promise that she would tell someone if she ever felt like hurting herself. The physician assistant testified that she could not recall whether she asked A.W. if she was experiencing thoughts of suicide or self-harm at the time. Nor could she recall whether she warned A.W. and Mother that Celexa could cause such thoughts. Although the physician assistant diagnosed A.W. with "depression," a medical assistant later altered A.W.’s records to reflect a diagnosis of "depressive disorder not otherwise specified" and then altered the physician assistant's thirty-day Celexa prescription to allow more refills than federal regulations or the clinic's policies permitted without a follow-up evaluation.
It is undisputed that A.W. returned to the clinic complaining of migraines on April 17, 2012, and was seen only by a nurse practitioner. Although A.W. and Mother both reported that A.W.’s mood had improved since the March 1 visit, the nurse practitioner assessed A.W. with migraines and "depressive disorder" and continued the Celexa prescription. The nurse practitioner did not conduct any further evaluation of A.W.’s depression or schedule any further follow-up. After A.W.’s death, and after this suit was filed, a medical assistant altered the records to falsely reflect that A.W. was asked "to come back in 30 days for follow up."
It is undisputed that, about three and a half months later, on July 31, 2012, Mother called the clinic to ask for a refill for A.W.’s Celexa prescription. The medical assistant who took Mother's call authorized a thirty-day supply and three refills even though she had no authority to prescribe medications, she failed to seek the supervising doctor's approval, federal regulations and clinic policies prohibited that many refills without a follow-up evaluation, and she did not require A.W. to return to the clinic for further evaluation before obtaining a refill. That medical assistant later attempted to alter the records to show that she authorized only a seven-day supply with no refills. But when she realized the pharmacy already had her original prescription, she instead altered the records to falsely state that she had instructed A.W. to return to the clinic for a follow-up evaluation.
As the Court notes, the defendants’ expert witness testified that "suicide in teenagers is usually impulsive. It's unforeseeable." Ante at 157. But on cross-examination, the expert agreed that the suicide of a patient with moderate to severe depression who is not "properly treated" is foreseeable, and that "an ordinary prudent physician can foresee that if you—if you don't properly treat a 14 year old with depression that suicide can occur." In any event, it is undisputed that on August 14, 2012—five and a half months after she visited the clinic for severe depression—then-fourteen-year-old A.W. died by suicide.
It is also undisputed that no one knows why A.W. chose to end her life. But A.W.’s parents did not have to prove the elusive why. What they had to prove was that the defendants were negligent and that, more likely than not, their negligence proximately caused A.W. to end her life. See Gunn v. McCoy , 554 S.W.3d 645, 658 (Tex. 2018).
Proving that one person's negligence proximately caused another person's suicide is difficult, at best. See, e.g., Rodriguez-Escobar v. Goss , 392 S.W.3d 109, 113 (Tex. 2013) (per curiam) ; Providence Health Ctr. v. Dowell , 262 S.W.3d 324, 328 (Tex. 2008). But after a seven-day trial, a jury found by a preponderance of the evidence that A.W.’s parents met that burden. In this Court, the defendants do not challenge the jury's finding that they negligently treated A.W. and breached the applicable standards of care. Instead, they argue that no legally sufficient evidence supports the jury's finding that their negligence proximately caused A.W.’s suicide. The Court agrees,2 but I do not.
At trial, A.W.’s parents presented Dr. Fred Moss to provide expert testimony on causation. Dr. Moss's credentials and qualifications to provide that evidence are also undisputed. As a board-certified psychiatrist who specializes in child and adolescent psychiatry, Dr. Moss had been working in the field for over thirty years and had treated many adolescent patients who "presented just like" A.W. Not one of them had died by suicide.
On direct examination, Dr. Moss agreed with and relied on the testimony of the other experts who testified that, when A.W. appeared on March 1 to seek help for severe depression, the defendants should have carefully interviewed her, without Mother present, to determine the nature and depth of her depression and to identify its potential sources. Dr. Moss then explained that the physician assistant's failure to appropriately and adequately evaluate A.W.’s condition and its causes prevented the defendants from identifying the treatment options they should have pursued. And by failing to require A.W. to return for follow-up evaluations "at least promptly over the next several days and weeks," the defendants essentially left A.W. without medical supervision when she needed it most. According to Dr. Moss, to a reasonable degree of medical probability, A.W. more likely than not would not have died by suicide on August 14, 2012, but for the defendants’ failure to properly evaluate A.W. and to insist on follow-up appointments.
To determine whether a reasonable juror could have relied on Dr. Moss's testimony to find by a preponderance of the evidence that the defendants’ negligence caused A.W.’s suicide, we must consider all of the testimony the jury heard from Dr. Moss. Dr. Moss first explained that, by adequately evaluating and following up with A.W., the defendants would have been able to identify and pursue a variety of treatment options that, based on reasonable medical probability, would have prevented her from committing suicide:
Q. Now, I want you to talk about the—can you—can you tell us the ways, sir, as you sit here today, that the treatment options that were available to [A.W.] to—that you believe, based upon reasonable medical probability, would have prevented her committing suicide on August 14th of 2012?
A. Sure. So they're really going to be defined in no small part for—based on the answers to the questions that weren't asked in [A.W.’s] case, unfortunately, but if would—they would have been asked would have created pathways towards treatment options that would then be made available and then would have prevented her from committing—from, unfortunately, committing suicide on August 14th, 2012.
Some of the things that would likely be made available, even on a more broad scale, include psychotherapy or a counseling, of course. And there's others. You know, designing a network of support in the community is something that works to just allay so much psychiatric symptomology. Having friends or having colleagues, having support systems in the community in the form of counselors or coaches or teachers or friends or neighbors or family members can go so far in really just reducing psychiatric symptomology. So certainly that would be something.
Other types of treatment plan options, you know, nutritional counseling. We're not sure exactly what [A.W.] was eating or not eating or drinking or not drinking and that would have been a space where we could have paid some attention to prevent the suicide on August 14th.
Perhaps group therapy might have been something that could have been helpful. [A.W.] might have been really, really happy to learn that there were other girls in the area that were struggling with whatever she was struggling with during those months. She's already in the band and I think there's—there was access to do some things in the band and, you know, creativity in creating music, art, dancing, singing, drum, gardening even. There's ways to really address creativity as a way of managing psychiatric uncomfortable symptomology.
And of course it goes on and on. There's sports that she might have been able to get involved with or clubs or peer groups or even, you know, a
relationship with a teacher or two that she could check in with a couple times a week to make sure that things are moving on together or maybe create a role model relationship that has [A.W.] get that there's something she's actually living towards rather than—rather than what really did take place that day in August.
Exercise is one of the things that can be really, really helpful for this. Meditation can be helpful. Self-pampering can be helpful. Creating a confidential advocate can be really helpful. Even arranging for emergency telephone contact. Like having someone that she could call when things really got low or scary.
We don't know that she wasn't having that anyway because no one even asked her at any time during the workup whether things were reaching the point where she was, you know, at the edge of her rope or maybe even suicidal. There's no point in the record where [A.W.] was asked directly if she was considering suicide or was suicidal. I mean, that would be—and not only suicide, but really despair and, you know, really being sad about it.
[Emphases added.] Dr. Moss then explained that, if the defendants had properly interviewed and evaluated A.W. and asked her the questions they should have, they likely would have created a connection with A.W. and enabled her to address and resolve her issues:
Q. Let me ask you a question right there real quick. If—if they would have, like [another expert testified], properly kicked mom out of the room—
A. Yeah.
Q. —and they would have asked her and she would have said, hey, I've got some suicidal tendencies, I thought about it, those type of things, what would you do as a psychiatrist and would that prevent and there's—are there ways to help a person in that way to keep them from committing suicide?
A. Well, certainly that's really a great space to work from. When a child says that I'm having suicidal tendencies, that's really a start of something new and really can start to look at, well, what impact would that have on your family? You know, what—what are we really looking at here when you're looking at wanting to exit versus killing yourself. Or, you know, have you tried it? Have you cut yourself? Have you taken pills? Have you, you know, tried to hang yourself are all the things that, unfortunately, kids do, dabble with sometimes when they're at the end of their rope.
We would have been able to learn that and by creating that connection, normally the symptomology, once exposed, once it's not a secret, it's really amazing how kids find a reason to live just by saying and see that the world really didn't end.
Dr. Moss then testified that, based on reasonable medical probability, the defendants’ actions—and more importantly, their failures to take actions they should have taken—created a "cluster of factors" that more likely than not caused A.W. to commit suicide, which she likely would not have done had the defendants not committed their negligent acts and omissions:
Q. Can you tell the jury, based upon reasonable medical probability , what your opinion is as to what proximately caused her to commit suicide ... on August 14th, 2012?
A. Well, certainly I can't know for sure, but I would say beyond, you
know, within a reasonable degree of medical certainty what I would say about this is that it's an accumulation. It's a cluster of so many things, so many things, so many acts and maybe more so. So many omissions of all the things I've listed here plus some that would have created pathways, that could have created connections, that could have created—I don't even know what it would have created had they been addressed initially.
So it's mostly in the form of the omissions that I'm speaking towards. And had any or most of these things been done, it is my, you know, professional opinion within a reasonabl[e] degree of medical certainty, that [A.W.] would still be with us today.
Q. And that's—that's on a more [likely] than not basis; is that correct?
A. That is correct.
Q. And that but for their actions if they would have—if they would have gotten—gotten her the type of treatment that she needed, based upon her presentation on March 1st, 2012, you believe, based on reasonable medical probability , that it's more likely than not that [A.W.] would be alive on August 14th, 2012?
A. I do believe that certainly—certain—yeah, I believe on August 14th, 2012, more likely than not , within a degree—within a reasonable degree of medical certainty , [A.W.] would have been alive on August 14th, 2012.
[Emphases added.]
Dr. Moss then explained that his opinion was based on his decades of relevant experience, training, and education, and on literature he had reviewed and relied on:
Q. And that's not just based upon your own—that's based upon your experience, your training, your certifications, but also on literature that you rely upon also; is that correct?
A. Yeah, there's some literature that I relied upon. It was—it has been initially based on mostly my education and experience like obviousness and, you know, I have—I have treated thousands of adolescents and none of them have committed suicide under my care. And many of them had depression or suicidal ideation on their initial presentation.
Dr. Moss then explained that, in addition to adequately evaluating and interviewing A.W. when she first complained of depression on March 1, the defendants should have scheduled regular follow-up appointments to keep tabs on A.W. and stay informed about how she was doing:
Q. [S]hould there have been more follow-up appointments ... and how would you have prescribed it?
A. Yes. You know, again, I don't mean to keep saying the same thing, but depending on what I would have found out in my questioning, there would have been things to follow up on quickly, and quickly meaning at least promptly over the next several days and weeks.
So I think the next appointment classically is set up for about one week later unless it's a little more serious and then it can be set up even for tomorrow or three days or five days from now for the second appointment, depending on the seriousness, depending on the gravity, depending on the understanding of the patient, the safety of the patient and the supportive network of the family and the friends and the school, like who's here
to monitor, who's there to be with the patient.
He then explained that, because of the defendants’ failure to adequately interview, evaluate, and follow up with A.W. on and after March 1, it was hard to say exactly what the nurse practitioner should have done differently on April 17, but her failures on that date were part of the "collection of action that led to" A.W.’s suicide in August:
Q. Should—in your professional opinion as a—do you believe that at that point in time [the nurse practitioner] should have done the things that you just told the jury about?
A. That's a little bit harder. I think that, you know, that she looks back at the examination and sees what she sees and it's—and it's—I think in proper care of [the nurse practitioner] should be following up and really following up how things have gone.
In my practice my nurse, you know, assuming I had a nurse practitioner, first of all, six weeks later the patient will now be—had been seen the sixth time probably, not the first time in six weeks. So we would know what was going on and we'd be following up on what had come up, what had surfaced in our interviews. What had surfaced in the back and forth with the patient and the family and caretakers.
So it's a tough question to say, you know, after the sort of the wrongness of March 1st, what are you supposed to do in wrongness of April 17th? If there's a six-week stay there I'm already—I'm already out of my league to talk about what to do six weeks later on an acute depressive complaint because that isn't how it should have gone in the first place.
Q. Okay. Does—do you believe that, as you sit here today, that [the nurse practitioner] was part of the collection of action that led to [A.W.’s] suicide?
A. Yes, I do.
Q. And can you explain why?
A. Because I think that reviewing the records had [the nurse practitioner] been qualified—again, it's the same—it's the same problem I have with the last question. [The nurse practitioner], had she been working for me, would have been seeing the patient for the sixth time six weeks later. And, so, let's see, if she was working for me but then she got hired over there, and now she's there six weeks later, it's like, what is this? That what I—that's what I would expect her to be able to do.
Say what do you mean six weeks? What do you mean six weeks she hasn't been seen? What's going on here? Let me back up and go find out everything that's happened here and then she would go past March 1st and see the vomiting and see the abdominal migraine and see all sorts of red flags and be able to respond that way.
Really [the nurse practitioner] is more or less working within the system that is created in the office, and formed within the office is standard of care of that office, but not standard of care at all of what would be expect[ed] from a competent mental health provider.
Dr. Moss then agreed with the other expert witnesses who testified that the medical assistant's handling of the phone call on July 31, in which the medical assistant authorized refills of A.W.’s prescription without authority or approval, fell well below the standard of care.
Q. [A]nd then moving forward to the July 31st telephone call that came in.
A. Yes, sir.
....
Q. Would you agree with me that as mental health care providers there's absolutely—from a psychiatric mental health, there's absolutely no excuse for July 31st?
A. No. I've been trying to look for an excuse for July 31st all day. I don't have one yet.
Q. Do you believe, as you sit here today, for a mental health care provider, that that's outside, completely outside the standard of care?
A. There's no place for anything that took place on July 1st to—or July 31st in a mental health provider that's providing the standard of care.
Dr. Moss then concluded his direct examination by repeating his "firm opinion," based on reasonable medical probability, that the defendants’ failures to adequately interview, evaluate, and follow up with A.W. more likely than not caused A.W.’s suicide:
Q. Is it your opinion, sir, as you sit here today, that the actions and omissions of [the supervising doctor, the physician assistant, and the nurse practitioner], proximately caused [A.W.] to commit suicide ... on August 14th, 2012?
A. That is my firm opinion.
Q. And that's based upon reasonable medical probability; is that correct?
A. That's based on reasonable medical probability more likely than not.
On cross-examination, Dr. Moss admitted that he could not say that the defendants’ decision to prescribe Celexa, standing alone, proximately caused A.W. to commit suicide, but he testified that the act of prescribing Celexa fit within the "cluster of omissions and acts" that more likely than not led her to do so:
Q. Now, it's cristal [sic] clear you're—you do not believe that Celexa was a proximate cause of [A.W.’s] suicide, do you?
A. It may have been. It's just part of the accumulation of acts and omissions that led to [A.W.’s] unfortunate demise on August 14th, 2012.
Q. You answered [the defendants’ lawyer's]—one of his first questions he asked you. He's saying, you're not here to say Celexa caused [A.W.] to commit suicide.
A. It's part of an extraordinary—an extraordinary cluster of omissions and acts that led in no small way more likely than not for [A.W.’s] unfortunate suicide on August 14th, 2012.
Dr. Moss then admitted he could not point to one single action the defendants could have taken that, standing alone, would have prevented A.W.’s suicide, but he again insisted that all of the defendants’ negligent acts and omissions, taken cumulatively, more likely than not led her to take her own life:
Q. All right. Now, you talk about that different paths that could have been taken, right, and you list a bunch of things that could have been taken, could have gone differently for—if [the physician assistant] worked on different paths, right?
A. Correct.
Q. Yeah. Can you tell us specifically, specifically a path that would have been taken that would have prevented her suicide, I mean, specifically what [the physician assistant] could have done differently, would
have done differently that would have prevented this suicide?
A. I cannot list a specific—one specific path that [the physician assistant] might have taken that would have prevented suicide reliably.
Q. There's no one thing that [the nurse practitioner] did that caused this suicide, agreed?
A. No. It's a—it's a cluster of a cumulative number of things.
Q. There's no one thing that [the supervising doctor] did that was a proximate cause of this suicide, true?
A. That's correct. There's a cluster of a cumulation of a number of omissions.
Q. There's no one thing that [the physician assistant] did that caused this—was a proximate cause of suicide, correct?
A. Yes, sir. There's a cluster of a cumulation of omissions and acts that led to the suicide.
Q. Now, with [the physician assistant] she could have gone a different direction, which you say she could have taken, that might have discovered things, correct?
A. Correct.
Q. But you can't point to any one thing you believe should have been done that was a proximate cause of [A.W.’s] suicide, true?
A. I cannot point to one thing.
Q. Right. If [the physician assistant] would have done exactly what you think she should have done, [A.W.] still might have committed suicide, true?
A. The possibility exists that [A.W.] might have still committed suicide.
Q. And if [the supervising doctor] did exactly what you think he should have done, exactly what you think he should have done, [A.W.] might still have committed suicide, true?
A. My professional opinion is that more likely than not [A.W.] would not have committed suicide, but she certainly could have.
Q. Well, so to answer my question, [the supervising doctor] could have done exactly what you say he should have done and [A.W.] still might have committed suicide?
A. She might have committed suicide.
Q. And your—your belief and your testimony that had they done different things that she wouldn't have committed suicide, that's your—your belief, true?
A. I stand by that, yes.
[Emphasis added.]
Dr. Moss then reiterated that, although he could not know why A.W. took her own life, his lack of knowledge was the result of the defendants’ failure to properly interview, evaluate, and follow up with her to find out what she was struggling with:
Q. You don't know—it'd be pure speculation, Dr. Moss, wouldn't it, pure speculation, for you to say that anything [the defendants] would have done differently would have prevented this suicide because you don't know why she committed suicide, do you?
A. No, but I would have known what was going on had we gone down any or all the pathways that I outlined earlier. And so I would have had a much greater access to what it was that was bothering [A.W.] to the point that she felt like she had to take her own life. My—
Q. My question is different. My question is, you don't know why she took her life?
A. I don't know why she took her life because nobody was there to talk to her for several months prior to her taking her life.
[Emphases added.]
When asked to admit that he could not say exactly what the defendants could have done to prevent A.W. from taking her life, Dr. Moss again insisted that if the defendants had properly interviewed, evaluated, and followed up with her, that "more likely than not" would have led to treatment that would have prevented her suicide:
Q. Not knowing why she committed suicide, you cannot say—you cannot opine what could have been done differently to prevent this suicide. That would be speculating, wouldn't it?
A. Psychiatry is predicated really on getting answers to the questions that I outlined early so that we can get optimal outcomes and optimize the welfare of our patients. In this case [A.W.] was not given an opportunity to get that kind of care and I have no idea what August 13th would have looked like or August 14th would have looked like because nobody was with [A.W.] prior to her committing suicide at all.
No professionals had been monitoring her either medically or psychiatrically or in a mental health version. There had been no schoolmates. There had been no medical support. There had been no contact with [A.W.] specifically for several months. There had virtually been no contact with [A.W.’s] parents for several months.
There had been medications given to her that had black box warnings. There had been many different things that were missed that could have been done. And there's no way I can know today what that would have led to had I had any bit of that information prior to August 14th. So that doesn't look like speculation to me.
Q. Well, you said there's no way you would know. There's no way you would have known what any of that looked like.
A. You're right. She may have possibly committed suicide anyways, but I sure am missing a boatload of information prior to that day, relevant information.
Q. I'm sorry?
A. Probably relevant information.
Q. Right. But you're still speculating, aren't you?
A. More likely than not is all I have, sir.
Q. Well, you don't have that.
A. Okay.
Q. You agree?
A. No, I don't agree.
[Emphasis added.]
In an extended series of questions and answers, Dr. Moss then acknowledged that he could not know exactly what information the defendants would have elicited had they properly interviewed and evaluated A.W. but again insisted that they would have obtained information regarding the "cumulative factors" that more likely than not would have enabled them to prevent her suicide:
Q. The questions and inquiries you believe should have been made that you've listed, the different paths to go down that—those inquiries, questions, you don't know what the answers to those questions would have been, do you?
A. I do not.
Q. So you don't know if the answer to those questions, then, because you don't know what the answers would
have been, you don't know whether the answers to those questions would be something that would prevent [A.W.] from committing suicide?
A. I don't know that, correct.
Q. You can't tell us the answer to any one of the questions that you think should have been asked, can you?
A. Because they weren't asked only, that's correct. None of us will be able to.
Q. Right. You can't point to one factor which would have made a difference in [A.W.] committing suicide, can you?
A. This is not a case that there's one factor.
Q. You can't point to cumulative factors in this case that would have prevented [A.W.] from committing suicide, can you?
A. No. I've been spending my whole testimony pointing to cumulative factors.
Q. Page 201 of your deposition, Doctor, I asked you that question. Beginning on line 12, you can't point to one factor, though, in [A.W.’s] case that would have made a difference of her not committing suicide, though, right? You said not a direct factor I cannot?
....
A. Right. My answer is true.
Q. True. You stand by that answer, don't you?
A. I do. And then I'm going to—I'd like to talk about the context of that answer as well because there is a context to that answer. I can't be to—I can't—because I don't know the answers to those questions, I don't have the specific cumulative factors that would have contributed to her suicide. What I do know is that upon—upon pursuing all the pathways that I brought up and more, several cumulative factors would have showed up, maybe, just maybe more likely than not preventing her suicide. But I, today, cannot point to the cumulative factors that contributed directly to her suicide simply because they weren't asked.
Q. Well, even more likely—even more likely than not what information would have been gleaned had the treatment been as you think it should have been, the inquiries have been made as you think they should have been made, you don't know what information would have been elicited. That's pure speculation what would have been elicited, true?
A. I don't know what would have been elicited.
Q. All right. So every inquiry [the physician assistant] would have made, [the nurse practitioner] would have made or [the supervising doctor] would have made, any inquiry that they would have made that you think they should have made, you don't know what information they would have gleaned from that inquiry; is that true?
A. Of course I don't know what would have been. I don't know the answers.
....
Q. I'll show you in your deposition. I asked you, and you don't know—on page 203, line two. And you don't know whether the information they had gleaned from that inquiry whether or not not gleaning the information was a proximate cause of [A.W.] committing suicide, right?
You said, I don't know that, that's right. See that?
A. Looking at this now I feel like I'm being twisted around the words that I don't know the definitions of enough to know. I will stand by what I've stood by, which is that had this questionnaire gone on anything like what I'm saying it should have, so much information would have been ascertained that the likelihood, more likely than not, that [A.W.] would be alive on August 14th is consistent with my medical opinion. This concept of proximate is what I feel like I'm being circled around. I showed you, you know, like I—you said it, you said it once and that's not at all the spirit of what my testimony is today or what my testimony was at deposition.
The specific one word of whether or not—and this is approximate. I really—I'm a doctor. I'm not an attorney and I—this whole idea of whether I said something that maybe for a moment fell on the other side of what I really mean feels like I'm being twisted semantically around a word that is a bit—so clearly isn't what my testimony is about.
My testimony is about that we didn't get any of the information necessary upon getting a chief complaint of depression for five months and we have a dead 14 year old here. And we have a dead 14 year old because nothing was done except throwing a pill at her and saying good-bye. That's my testimony.
There were many questionnaires and many pathways that were not pursued, and I say, in my professional opinion for 39 years or 30 years of professional experience, that had they been pursued, more likely than not [A.W.] would not have committed suicide on August 14th, 2012, though I can't guarantee that.
[Emphases added.]
Dr. Moss admitted that he couldn't point to specific "literature" or "facts" to support his opinion, other than the "facts" he experienced during his decades of education and experience treating troubled adolescents:
Q. And you can't support that with literature, can you?
A. No, I cannot.
Q. And you cannot give your opinion because you say that is so—because you say that's so and that's not supported by the facts or literature, is it?
A. 39 years education and experience.
Q. But not the facts or literature?
A. It's kind of—my experience is pretty factual, but it's not facts and literature.
Finally, on redirect examination, Dr. Moss again reaffirmed his opinion that—although there was much he could not know about why A.W. committed suicide—the defendants more likely than not would have prevented that result if they had properly interviewed, evaluated, and followed up with her on and after March 1, 2012:
Q. But what we do know is and what your testimony basically says is that had we had the opportunity to ask those things about that you got in there, you would have had the information and a way to deal and treat that through a network, correct?
A. Correct.
Q. And if you would have had that information, based upon reasonable medical probability, more likely
than not you would have been—the clinicians, not just you, but any—any—anyone who has a head on their shoulders and can handle psychiatric or mental health would be able to prevent this suicide, correct?
A. More likely than not.
Q. And when I say that, what he's basically saying is is that these actions, their failure to do what they needed to do from a mental health standpoint was a proximate cause to the reason that she committed suicide on August 14th of 2012, isn't it?
A. Yes, sir.
[Emphases added.]
In short, this is not a case like Rodriguez-Escobar , in which the expert testified only that, "hopefully if a plan had been in place, then her chances of having a better life would have been there," but conceded that he didn't "know long term what her prognosis would have been." 392 S.W.3d at 114 (emphases added). Nor is it a case like Dowell , in which the expert testified only that, but for the defendants’ negligence, the patient "would have improved " and been at a "lower risk " of suicide when he left the defendants’ care. 262 S.W.3d at 328 (emphases added).
Instead, unlike the experts in those cases, Dr. Moss testified that it was his "firm" expert medical opinion that, if the defendants had not committed a "cluster" of negligent actions and omissions, and instead had interviewed, evaluated, and followed up with A.W. as they should have, then "more likely than not," based "upon reasonable medical probability," the defendants "would " have learned "so much" information that "would have created pathways towards" a variety of "treatment options" that "would have prevented her" from taking her own life. [Emphases added.] He did not merely "assume," as the Court suggests, that if the defendants had properly treated A.W. she would have disclosed her suicidal thoughts and accepted a treatment option. Ante at ––––. Rather, he testified that in his expert opinion, based on thirty-plus years of successfully treating adolescents, A.W. more likely than not, to a reasonable degree of medical probability, would have opened up and accepted treatment had the defendants properly interviewed, evaluated, and followed up with her.
Whether we believe or are convinced by Dr. Moss's testimony is irrelevant. Considered in the light most favorable to the jury's verdict, his testimony would at least enable a reasonable juror to conclude, based on a preponderance of the evidence (more likely than not), that A.W. would not have committed suicide "but for" the defendants’ negligence and thus provides legally sufficient evidence to support the jury's verdict. See Bustamante v. Ponte , 529 S.W.3d 447, 456 (Tex. 2017).
The defendants complain—and the Court agrees—that Dr. Moss's testimony was insufficient because he could not identify exactly what information the defendants would have obtained from A.W. had they properly interviewed, evaluated, and followed up with her, could not identify exactly which "pathways" or treatment options the defendants should have pursued, could not identify any single pathway or option that would certainly have prevented A.W.’s suicide, and could not say that A.W. would not have committed suicide even if the defendants had properly treated her. But neither the law nor the trial court's jury instructions required the jury to make any such findings. Although it is, in fact, undisputed that A.W. never disclosed to anyone that she was suicidal, see ante at ––––, Dr. Moss testified that A.W. more likely than not would have disclosed such thoughts, or at least other sufficient information, if the defendants had properly evaluated, interviewed, and followed up with her. And although Mother testified that A.W. refused counseling after her March 1, 2012 clinic visit, see ante at ––––, Dr. Moss identified numerous other treatment options that, more likely than not, would have provided the intervention necessary to prevent her suicide.
Similarly, although Dr. Moss in fact agreed that he could not identify one specific pathway or option that "would have prevented suicide reliably," ante at ––––, he explained that the pathways that more likely than not would have been successful depended on the information the defendants more likely than not would have obtained had they properly interviewed, evaluated, and followed up with A.W. As the law requires, the jury charge properly asked only whether the defendants’ negligence "was a substantial factor in bringing about" A.W.’s death on August 14, 2012; that without such negligence A.W.’s death on August 14, 2012, "would not have occurred"; and that a pediatrician or physician assistant "using ordinary care could have foreseen that" A.W.’s death on August 14, 2012, "or some similar occurrence, might reasonably result" from their negligence. Regardless of all the things Dr. Moss conceded he could not establish, his testimony was legally sufficient to support the jury's answer to the question it was asked.
The Court, however, concludes that the record contains legally insufficient evidence because Dr. Moss's testimony was conclusory and mere "speculation" based on numerous "ifs." Ante at ––––. First, the Court says, Dr. Moss's opinion depends on "if" the defendants "had questioned A.W. outside her mother's presence," ante at ––––, but it is undisputed here that the defendants should have done that and were negligent by failing to do so. Next, the Court says, Dr. Moss's opinion depends on "if" A.W. "had divulged information about any current suicidal tendencies," ante at ––––, but Dr. Moss testified that, more likely than not, A.W. would have disclosed that, or at least disclosed enough information, had the defendants properly interviewed, evaluated, and followed up with her.3
Finally, the Court says Dr. Moss merely speculated that A.W. would have consented to treatments and his assumption is belied by the fact that, early on, A.W. said she didn't want to go to counseling. Ante at ––––. But Dr. Moss testified that counseling was just one of many "pathways" the defendants could and should have provided, and he at least implicitly opined that A.W. would likely have accepted such assistance by repeatedly testifying that, had the defendants cared for A.W. as they should have, "she would still be with us today." We must consider all of the evidence and do so in the light most favorable to the jury's verdict, not cherry-pick Dr. Moss's more general or ambivalent statements while ignoring those that were specific and certain.
Finally, the Court concludes that Dr. Moss's testimony was incompetent to constitute sufficient evidence because it was conclusory and "not grounded in science." Ante at ––––. Specifically, the Court critiques Dr. Moss for failing to provide a "reliable basis to differentiate between those patients who, with ordinary psychiatric care, would not commit suicide, and those who would, even with proper care." Ante at ––––. But A.W.’s parents did not have to prove why some patients who receive proper psychiatric care nevertheless commit suicide and others do not. What they had to prove was that, more likely than not, A.W. would not have committed suicide had she received proper care. See Gunn , 554 S.W.3d at 658 ("Recovery in a medical-malpractice case requires proof to a reasonable medical probability that the injuries complained of were proximately caused by the negligence of a defendant."). They provided that through Dr. Moss's testimony.
"To avoid being conclusory, an expert must, to a reasonable degree of medical probability, explain how and why the negligence caused the injury." Id. at 665. Dr. Moss did that. And he did so based on thirty-plus years of experience successfully treating thousands of adolescent patients, many of whom presented just like A.W. Any assumption he made may not have been "uncontested or established as a matter of law," but it was "also not unfounded or scientifically unreliable on the face of the record, and the jury was free to credit both the assumption and the opinion resting on it." Id. at 663 ; see also Draughon v. United States , No. 14-2264-JAR-GLR, 2017 WL 3492313, at *6 (D. Kan. Aug. 15, 2017) ("Dr. Allen's opinions have a reliable basis in the knowledge and experience of the psychiatry profession, and specifically psychiatrists who specialize in suicide screening and prevention. The Government's objections to Dr. Allen's opinions are classic weight over admissibility challenges, and are thus denied.").
Because a reasonable juror could have found based on Dr. Moss's testimony that A.W. would not have died by suicide on August 14, 2012, but for the defendants’ failure to properly interview, evaluate, and follow up with her on and after March 1, 2012, I must respectfully dissent.