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

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No. 21-0238

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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

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On Petition for Review from the

Court of Appeals for the Fourteenth District of Texas

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Argued February 3, 2022

JUSTICE BUSBY, concurring.

The U.S. Centers for Disease Control and Prevention recently

published national survey results showing “an accelerating mental

health crisis among adolescents” who were isolated by the coronavirus

pandemic in the first six months of 2021, with “more than 4 in 10 teens

reporting that they feel ‘persistently sad or hopeless,’ and 1 in 5 saying

they have contemplated suicide.”1 Teenage girls “are far worse off than

their male peers”2: data show “a 50% increase in girls being admitted to

the hospital for suspected suicide attempts between early 2019 and

2021.”3

Youth suicide and depression rates were already rising long

before the pandemic: “Between 1950 and 1988, the proportion of

adolescents aged between fifteen and nineteen who killed themselves

quadrupled. Between 2007 and 2017, the number of children aged ten

to fourteen who did so more than doubled.”4 And “in 2019, one in three

high school students and half of female students reported persistent

feelings of sadness or hopelessness, an overall increase of 40% from

2009.”5 The American Academy of Pediatrics has characterized these

“worrying trends in child and adolescent mental health” as a “national

1Moriah Balingit, “A Cry for Help”: CDC Warns of a Steep Decline in

Teen Mental Health, WASH. POST (Mar. 31, 2022), https://perma.cc/6JNN-

5AG4.

2 Id.

3 Eleanor Klibanoff, In Pandemic’s Isolation, an Alarming Number of

Teenage Girls Are Attempting Suicide, TEX. TRIBUNE (Feb. 1, 2022),

https://perma.cc/6EXU-HJ3S.

4Andrew Solomon, The Mystifying Rise of Child Suicide, THE NEW

YORKER (Apr. 4, 2022), https://perma.cc/LJ6V-UNEK.

5 OFFICE OF THE SURGEON GEN., U.S. DEP’T OF HEALTH & HUMAN

SERVS., PROTECTING YOUTH MENTAL HEALTH: THE U.S. SURGEON GENERAL’S

ADVISORY 3 (2021).

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emergency,”6 while the U.S. Surgeon General has called them

“alarming” and their effects “devastating.”7

Amid this “surge in extreme mental distress,”8 it is more

important than ever for medical providers to comply with the standard

of care, which evidence at trial showed offers young patients in

distress—and their families—pathways for survival and a better life to

come. The defendant providers in this case no longer challenge the

jury’s finding that they failed to comply with the standard of care in

treating thirteen-year-old A.W., who told them she felt “sad all the time”

and “couldn’t control her feelings.” Less than five months and at least

eight separate breaches of the standard of care later,9 A.W. died by

suicide. After this suit was filed, the defendants’ employee added false

statements to A.W.’s medical records in an unsuccessful effort to conceal

their negligence, as the evidence at trial showed.

Our legal system provides civil, criminal, and administrative

remedies for such misconduct that are not exclusive of each other and

work together to promote better medical care and prevent future harm

6 Solomon, supra note 4.

7 OFFICE OF THE SURGEON GEN., supra note 5.

8 Klibanoff, supra note 3.

9 Ante at 4–5. Sadly, there are indications that such breaches are far

too common. “[D]epressed or suicidal children . . . remain radically

undertreated. There are too few child psychologists and psychiatrists, and

most pediatricians are insufficiently informed about depression.” Solomon,

supra note 4. The Surgeon General recently concluded that “[o]ur health care

system today is not set up to optimally support the mental health and

wellbeing of children and youth.” OFFICE OF THE SURGEON GEN., supra note

5, at 21.

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to patients. Here, A.W.’s parents brought a common-law civil tort suit

against A.W.’s medical providers. No party objected to the trial court’s

jury charge, which required the parents to prove that the providers’

negligence “proximately caused” A.W.’s death and supplied the usual

definition of proximate cause, which demands proof of but-for and

substantial-factor causation as well as foreseeability.

As our medical negligence cases involving suicide have shown,

this is a difficult causation standard to meet with expert psychiatric

testimony.10 And it was especially difficult to meet here, as the

providers’ negligence fell so far below the standard of care that they did

not even ask the most basic preliminary questions designed to identify

promising pathways for treating A.W.’s severe depression. Our

requirements for proving causation should not hold the severity of the

providers’ negligence against A.W.’s family, and I do not understand the

Court’s opinion to do so. It is not the law that if a defendant breaches

the standard of care badly enough, it can become impossible for a

plaintiff to prove that the patient likely would have lived with proper

treatment.

I agree with the Court, however, that the plaintiffs’ psychiatric

expert did not identify a treatment or combination of treatments that

likely would have prevented suicide. Nor did he identify any factors that

differentiate properly treated patients who nevertheless commit suicide

from those who survive, or explain why it was likely that A.W. fell into

10 See Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 114–15 (Tex. 2013)

(per curiam); Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 330 (Tex.

2008).

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the latter category. Ante at 19–20. I therefore join the Court’s opinion.

I also write separately to make two points about what the opinion does

not decide.

First, this case does not present any question about whether the

proximate causation standards we ordinarily apply in medical

negligence cases should be tailored in suicide cases to account for the

current capabilities and limitations of psychiatric science. Cf. Bostic v.

Ga.-Pac. Corp., 439 S.W.3d 332, 344 (Tex. 2014) (“While but for

causation is a core concept in tort law, it yields to the more general

substantial factor causation in situations where proof of but for

causation is not practically possible or such proof otherwise should not

be required.”). There is no record before us on this question, and we

appropriately express no view on it. Our ordinary causation standards

were included in the jury charge without objection, so we must measure

the sufficiency of the evidence by the charge as given. See Osterberg v.

Peca, 12 S.W.3d 31, 55 (Tex. 2000). I agree with the Court that the

variation of but-for causation in multiple-provider negligence cases

addressed in Bustamante v. Ponte, 529 S.W.3d 447, 457 (Tex. 2017), does

not affect the outcome here. Ante at 13–15, 15 n.38.

Second, although a common-law remedy for medical negligence

requires proof that the providers’ negligence caused the patient harm, it

is important to be clear that the administrative and criminal remedies

available for such negligence do not. Rather, the Texas Medical Board

and district attorneys can take independent action to address the

accelerating adolescent mental health crisis, helping to promote better

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medical care for—and prevent future harm to—young Texans and their

families.

The Texas Medical Board and its advisory Physician Assistant

Board are authorized to regulate the practice of medicine in Texas,

which includes the licensing and discipline of providers and the

investigation of complaints filed by the Board itself or by private parties.

See TEX. OCC. CODE §§ 152.001(a), 154.051(c), 154.057, 155.002(a),

164.001(a), 204.101(4). The Board may discipline a provider who “fails

to practice . . . in an acceptable professional manner consistent with

public health and welfare,” id. § 164.051(a)(6); see id. § 204.304(a)(5),

such as by “fail[ing] to treat a patient according to the generally accepted

standard of care.” 22 TEX. ADMIN. CODE § 190.8(1)(A); see id.

§ 185.18(b)(1)(A). Providers also must maintain “adequate” medical

records, id. § 165.1(a), and discipline can be imposed for “unprofessional

or dishonorable conduct that is likely to deceive or defraud . . . or injure

the public.” TEX. OCC. CODE § 164.052(a)(5); see id. § 204.302(4). A

physician remains responsible for medical acts delegated to others. See

id. § 157.001(b). Disciplinary actions may include license suspension or

revocation, probation, public reprimand, counseling, or supervised

practice. See TEX. OCC. CODE §§ 164.001, 204.301.11

11 The Texas Nursing Board may discipline nurses for similar actions.

See TEX. OCC. CODE §§ 301.151, 301.452(b)(10), 301.453, 301.457. Unlike

discipline of physicians and physician assistants, discipline of nurses for

failure to conform to minimum standards of acceptable nursing practice

requires that a patient or other person be exposed unnecessarily to risk of

harm, though actual patient injury is not required. See id. § 301.452(b)(14); 22

TEX. ADMIN. CODE § 217.11. Nurses may also be disciplined for misconduct,

which includes falsifying reports. TEX. ADMIN. CODE § 217.12(6)(A).

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In addition, a physician who violates an applicable statute or rule

commits a Class A misdemeanor. See id. § 165.151. As with the other

sources of enforcement authority, injury to a patient is not an element

of the offense. Administrative and criminal remedies are separate from

and in addition to common-law remedies, so they are not precluded by

any determination regarding the sufficiency of the evidence to support

a common-law damages remedy.

With these observations, I join the opinion of the Court.

J. Brett Busby

Justice

OPINION DELIVERED: May 13, 2022

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