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
═══════════════════════════════════════

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 minutes 1 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.

1 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.

2
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
___. But on cross-examination, the expert agreed that the suicide of a

3
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.

2The 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

4
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

causation, so we can review the sufficiency of the evidence under that proper
standard.

5
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

6
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

7
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.

8
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

9
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:

10
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.

11
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

12
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.

13
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.

14
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?

15
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.

16
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?

17
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

18
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

19
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?

20
....

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?

21
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.

22
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:

23
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).

24
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

25
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

26
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

3 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.

27
___. 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

28
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.

Jeffrey S. Boyd
Justice

OPINION DELIVERED: May 13, 2022

29