Pediatrics Cool Care v. Ginger Thompson, Individually and as the Representative of the Estate of A.W.(deceased), and Brad Washington

Supreme Court of Texas
══════════
No. 21-0238
══════════

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

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
═══════════════════════════════════════

Argued February 3, 2022

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.

JUSTICE BUSBY filed a concurring opinion.

JUSTICE BOYD filed a dissenting opinion, in which Justice
Lehrmann 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.

2
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

3
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,

1 The parents sued Dr. Salguero individually and through his
professional association, Jose Salguero, M.D., P.A.

4
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,

2 Moss also testified that he was unaware of any literature reporting
that Celexa caused suicide.

5
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

6
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

7
as “a cause that was a substantial factor in bringing about an
occurrence, and without which cause, such occurrence would not have
occurred.” 3 Additionally, “the act or omission complained of must be
such that a [provider] 4 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.”
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. 5 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. 6
The court instead confined its analysis to substantial-factor causation.

3 Neither side objected to the definition of proximate cause.
The trial court held the providers to the standard of care he or she
4

should have provided as a pediatrician, physician assistant, or nurse
practitioner, respectively.
5 638 S.W.3d 218, 244 (Tex. App.—Houston [14th Dist.] 2021).
6 Id. at 232 (citing Bustamante v. Ponte, 529 S.W.3d 447, 457 (Tex.
2017)).

8
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. 7 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. 8 Finally, the court of appeals upheld the interest
calculation. We granted the providers’ petition for review.
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.” 9 The two
elements of proximate cause are cause-in-fact and foreseeability. 10 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.” 11
Courts refer to these two components as “substantial factor” causation
and “but for” causation.
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

7 Id. at 232–34.
8 Id. at 238–40.
9 Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018).
10 Id.
11 Id.

9
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. 12
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. 13 Our Court has applied this
causation standard in two other medical malpractice cases involving a
patient’s suicide.
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. 14 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. 15 Thirty-three hours later, he hanged himself. 16 Our Court

12The 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.
13 Gunn, 554 S.W.3d at 658.
14 262 S.W.3d 324, 329–30 (Tex. 2008).
15 Id. at 326–28.
16 Id. at 325.

10
held that the hospital’s decision to release the patient was not a
proximate cause of his death. 17 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.” 18
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.” 19
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. 20 In
that case, the police brought the patient to the hospital after she had
discharged a shotgun inside her bedroom and expressed suicidal
intent. 21 The patient’s son obtained a Mental Health Warrant for
Emergency Detention to have her involuntarily admitted to a state
mental health hospital. 22 The physician who conducted triage at the
state hospital concluded that the patient did not meet the criteria for
involuntary hospitalization and discharged her. 23 Three days later, the

17 Id. at 328.
18 Id.
19 Id. at 330.
20 392 S.W.3d 109, 114–15 (Tex. 2013) (per curiam).
21 Id. at 111.
22 Id.
23 Id.

11
patient committed suicide. 24 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.” 25
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.” 26 The expert conceded “I don’t know long term what her
prognosis would have been. It would have depended upon a lot of
things.” 27 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. 28
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. 29
In Bustamante, we rejected “a stringent but-for causation test” for an
individual actor when the evidence demonstrates that concurrent acts

24 Id.
25 Id. at 114.
26 Id.
27 Id.
28 Id. at 115.
29 638 S.W.3d at 232 (citing Bustamante, 529 S.W.3d at 457).

12
of negligence combined to cause the injury. 30 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. 31
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. 32 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. 33 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. 34 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

30 529 S.W.3d at 457.
31 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).
32 529 S.W.3d at 450.
33 Id. at 453–54.
34 Id. at 454.

13
physician’s negligence also contributed to causing the injury. 35
“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.” 36
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.” 37 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.
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

35 Id.
36 Id.
37 Id. at 457.

14
A.W.’s death. 38 The court of appeals erred in eliminating a but-for
causation requirement.
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. 39 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. 40 Instead, we held, “the proof
required is that the negligence be a substantial factor, not that it be the
‘immediate cause.’” 41 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.’” 42 We have not
eliminated but-for causation; we do not do so today.
B
In assessing the legal sufficiency of the evidence supporting the
finding that the providers’ combined negligence was a but-for cause of

38 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.
39 581 S.W.3d 761, 777 (Tex. 2019).
40 Id. at 778.
41 Id.
42 Id. at 778–79 (quoting Bustamante, 529 S.W.3d at 456) (emphasis
added).

15
A.W.’s death, we consider the evidence in a light favorable to the
verdict. 43 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.” 44
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.’” 45 “Otherwise,
the testimony is ‘no more than subjective belief or unsupported
speculation.’” 46 Thus, an expert’s bare assertions about causation do not
suffice. 47 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. 48 “[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.” 49
Finally, when the evidence demonstrates other plausible causes of an

43 City of Keller v. Wilson, 168 S.W.3d 802, 820–22, 827 (Tex. 2005).
44 Id. at 827.
45Mack 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)).
46 Id. (quoting Robinson, 923 S.W.2d at 557).
47 Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
48 Id. at 712.
49 Gunn, 554 S.W.3d at 663.

16
injury, the expert must exclude those other causes with reasonable
certainty. 50
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.

50 Id. at 665.

17
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. 51 Dr. Moss confirmed
that he could not know how A.W. would have responded to a proper
diagnostic evaluation:
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,

51 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.

18
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. 52 This

52Dr. 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.

19
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.
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. 53
Expert opinions, however, must be based on the facts in the record and
not controverted by them, even when relying on experience and training

53 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”).

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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.
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.” 54
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.” 55
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

54 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.
55 392 S.W.3d at 114.

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suicide when he left.” 56 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. 57 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.
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.

Jane N. Bland
Justice

OPINION DELIVERED: May 13, 2022

56 262 S.W.3d at 328.
57 Id. at 326–27.

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