Over two dissenters, the Texas Supreme Court has reaffirmed that a plaintiff must adduce legally sufficient evidence of but-for causation to prevail in a medical malpractice lawsuit. Pediatrics Cool Care, et al. v. Ginger Thompson, Individually and as the Representative of the Estate of A.W. (Deceased) and Brad Washington (No. 21-0238) arose from the suicide of a thirteen-year-old girl after being diagnosed with and treated for depression at a pediatric clinic. The jury found that the physician’s assistant who diagnosed the child and prescribed an anti-depressant and two physicians were negligent in failing to properly assess the child for a mental illness, prescribing an anti-depressant without informing the patient or her mother that it could produce suicidal ideation, failing to follow up with the patient, refilling the prescription without the physician’s knowledge or approval, and changing the patient’s medical record after suit was filed to conceal the improper refill. Based on expert testimony provided by a pediatric psychiatrist, the jury further found that the providers’ negligence proximately caused the child’s suicide. The jury awarded several million dollars in damages, which the trial court reduced to $1.285 million plus interest. On appeal, the 14th Court of Appeals [Houston] affirmed. The providers sought review, which SCOTX granted.
In an opinion by Justice Bland, SCOTX reversed and rendered a take nothing judgment in favor of the providers. Although legally sufficient evidence supported the jury’s finding that the providers acted negligently, no such evidence showed that their negligence proximately caused the child’s suicide. As the Court has repeatedly ruled in medical malpractice cases, to establish proximate cause the plaintiff must show that the defendant’s negligence, to a reasonable medical certainty, was a “substantial factor in causing the injury,” and “without the act or omission, the harm would not have occurred,” i.e. but-for causation. The court of appeals erred when it applied the substantial factor test without requiring but-for causation, relying on a misreading of Bustamante v. Ponte, 529 S.W.3d 447 (Tex. 2017). In that case SCOTX “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 at 457). Under Bustamante, if the facts show 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.” Here the “correct approach” was “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.”
Conducting the appropriate analysis, the Court concluded that the plaintiff’s expert, a pediatric psychiatrist, presented little more than a series of assumptions about what might have happened if the providers’ had acted differently, beginning with the intake assessment. Moreover, uncontroverted evidence established that the child did not disclose her suicidal ideation to anyone and refused the counseling recommended by the providers, contradicting the expert’s opinion. The expert further could not identify any specific treatment or approach that would “reliably” have prevented the suicide and admitted that even if the providers had done “everything perfectly” the child might still have done it. In a nutshell, the expert’s opinion was neither solidly grounded in science nor specific enough to tie the acts and omissions of the providers to the outcome.
Justice Boyd, joined by Justice Lehrmann, dissented on the basis that the Court’s application of the substantial factor test in this case was too stringent, requiring a level of exactitude and certainty virtually impossible to attain in cases such as this one. But, as the majority points out, the expert “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.” Nor could the plaintiff’s expert “exclude the alternative possibility proposed by [the providers’ expert]: that A.W.’s suicide was a spontaneous, impulsive—and thus, unpreventable—act.” When the facts, as they did here, “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.”
This was undoubtedly an agonizing case for the Court, as so many of them are. Justice Bland makes it clear that the holding does not mean that “medical malpractice could never be the cause of a suicide,” or that the Court in any way condones the providers’ conduct. From our perspective, SCOTX fulfilled its function as the ultimate gatekeeper for the sufficiency of scientific expert testimony. If the plaintiff’s expert had been able to present scientifically valid research or studies strongly linking the providers’ negligent acts to an enhanced risk of suicide in teens, particularly those who actively conceal their suicidal ideation and decline to seek professional counseling, then the case might have had a different outcome. He might also have presented research showing what makes some teens more likely to commit suicide than others, whether with treatment or without. And he could have rebutted the providers’ expert’s opinion that teen suicides are commonly spontaneous and impulsive. Instead, as the Court concluded, he could only speculate about what might have happened under different circumstances. Though they can seem harsh and unfair in individual cases, high evidentiary standards for expert testimony protect all litigants and the judicial process as a whole from arbitrary and result-oriented outcomes, whomever they might benefit. We appreciate the difficult job our courts face in applying these standards under the most difficult factual circumstances.