Ediatrics Cool Care v. Thompson

649 S.W.3d 152

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

No. 21-0238

Supreme Court of Texas.

Argued February 3, 2022

OPINION DELIVERED: May 13, 2022

Rehearing Denied September 2, 2022

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,¹ 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:

• 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.²

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...