*1 indisputable, example, It is that a HEALTH CENTER PROVIDENCE
“report” by a is no signed plumber report Charity Daughters Health a/k/a dismissal, at all and merits swift no matter Waco and Services of DePaul Center brilliantly how how the describes defen- Charity Daughters Health a/k/a dant’s departure accepted standards Waco, Petitioners, Services of patient’s injury. care caused the Like- v. wise, provider-signed doctor- record Jimmy Carolyn DOWELL, Individu totally omits the required statutory ally and Behalf of Estate on elements and makes no attempt colorable Dowell, Deceased, Jonathan Lance liability report demonstrate all Respondents. just merits dismissal swift. A “re- port” of nature falls outside the sec- Pettit, D.O., Petitioner, James C. 74.351(c) tion safe harbor afforded to defi- reports. cient-but-curable A trial court Jimmy Carolyn Individually Dowell, reviewing material should conclude on Behalf the Estate of Jona report that a “has not been served” for Dowell, Deceased, Respon than Lance 74.351(b) purposes of section and dismiss dents. directs; the claim the statute failure to 05-0386, Nos. 05-0788. interlocutory do so appeal invites Supreme Court Texas. 51.014(a)(9). reversal section under May 2008. I am confident that overwhelming Rehearing Denied Oct. majority liability of health care claimants reports do their to submit expert best
comply Chapter grossly 74. A sub- filing pitched
standard as a bona fide re-
port may be a indeed rare bird Texas
legal practice, but courts should be mindful
of its existence. *2 opinion HECHT delivered
Justice BRISTER, Court, in which Justice JOHNSON, GREEN, Justice Justice joined. Justice WILLETT HECHT, L. Justice. NATHAN Dowell was Twenty-one-year-old Lance and treated emergency taken room on his cut superficial, for a self-inflicted losing girl- over his Distraught left wrist. threatening kill friend, he had earlier, but he had calmed down himself He hospitalized. not want to be did promises his was released on suicide, stay with not commit would to the local go his and would parents, and Mental Retardation Mental Health follow-up His for a assessment. center nurse, mother, with him registered object his He release. went did to rodeo with his to a reunion and brother, assuring his mother repeatedly His and brother okay. that he was mother him, reported else one believed in his behavior. But anything unusual release, he after his thirty-three hours now con- hanged parents himself. tragic proximately death was tend that emergency of the caused releasing nurse in him. room physician connection between We hold for is too attenuated release death Accordingly, we reverse proximate cause. ap- court of judgment divided judgment petition- peals and render White, Ñaman, Howell, Greg Smith & ers. McSwain, LLP, H. Andy Lee Colin O’Neill, Dumas, Fulbright David Winni- Day Labor Friday evening before P.C., MacKenzie, Haley
ford, & Ol- Alfred Tylenol four sinus took three or son, TX, P.C., Waco, for Petitioners. whiskey and capsules used with a shot Marable, Webb, The cut III, Paul knife to cut his wrist. pocket L.
Vincent Wharton, long and two TX, about three centimeters P.C., Sharon Loraine Cul- was LLP, Houston, police A officer and len, deep. McKinney Cooper, millimeters & Dunnam, scene found TX, deputy sheriff called R. Dunnam & Dun- James living in the room of Waco, sitting him alone nam, TX, Respondents. 2005). (Tex.App.-Waco S.W.3d 48 drive, parents’ house on farm Teague, near minute not talk a He did lot. not bleeding, longer Texas. but there was no to kill saying wanted They was blood on porch living and in the himself. at the 6:47 arrived ER at *3 room. While the officers to a.m. tried enter door, through the back Lance crawled out Lance had been there before. he When a and in nearby. window hid the woods girlfriend was another to threatened brother, Larry, his older to wait arrived him, leave and he out in the pasture went return,
for his and the officers left. put gun and head. a his He surren- later, an incident, About hour and a half gun dep- Lance dered the without a and returned. distraught uty He was because the Teague sheriff drove him from parents sixteen-year-old girlfriend of his ER. he Though Providence’s was detained stay warrant,3 him away had told emergency her. under an he consent- told Larry Lance to leave him alone and ed to being admitted for treatment at re- week, Center, spondent let him “finish it”. Earlier DePaul Providence’s girlfriend by psychiatric Lance had alarmed his telling treatment division. was He pills”, her had taken discharged days he “some and she had five and later instructed (about mother, his Carolyn, called counseling Waco obtain from the local Mental Teague). center, 55 miles west of Lance told his Health Mental and Retardation but only Advil, mother that he had taken a few he never did. Carolyn signs and checked vital and visit, On this second Lance was exam- them found normal. She insisted he drink nurse, by Mary ined a DePaul Theresa plenty water sought but no treatment Fox, by and the ER physician, respondent
for him. But in early the of Satur- hours Pettit, James Pet- C. who sutured his cut. day Larry morning, thought Lance was tit and very briefly, Fox talked with Lance serious and called the out officers back and made a comprehensive neither assess- the house. ment of risk ar- Carolyn of suicide. rived, saying Lance was he would kill himself he did want and told her not left, everybody if so deputy kept the sheriff be there. He told Fox he was not custody, permitted by took him into suicidal did and not want be admitted to law,2 adult, respondent Texas and drove him DePaul. Because he was emergency involuntarily Providence Health Care’s room could not held be for more agitated holiday first than Waco. but weekend without a court during agreed calmed down order.4 if he hour-and-fifteen- Fox to release him (2) 573.001(a) facility § 2. See Tex. Health & a health deemed mental suitable Safety Code ("A officer, warrant, appro- peace may authority, without a the local mental health if an (1) person custody priate inpatient facility take is into if the officer: mental health available.”). and has reason to believe does believe that: ill; (A) (B) person mentally is because §§ of that mental illness there is a substantial See id. 573.011-.012. person or risk of serious harm to the to others restrained; 573.021(b) person immediately 4. See unless is Safety & Code Tex. Health (2) person (providing believes there relevant that "[a] is not sufficient taking accepted preliminary may time to obtain a warrant examination before (d) (“A custody longer person custody.”), peace into officer detained than person custody person presented the time who takes a into under Sub- hours after (a) transport immediately facility shall unless a written order for further section (1) peri- apprehended person ap- to: obtained.... If the the nearest detention is 24-hour inpatient facility; Sunday, holiday, propriate Saturday, od mental health or ends on Mends, Larry saw with Lance talked (part contract sign no-suicide cause concern. situations), nothing in his behavior to standard treatment in such farm, rodeo, Larry to the drove After go to the MHMR center for assessment pickup to see Lance went aloné Tuesday, stay following promise Larry know someone did not told Fox Mend. family with his until then. Lance stay Lance at all supposed to stay family signed he would said, “21-year- friend, times, contract, anyway, agreeing to with a talk member, they want”. guys do sometimes what person at De- old or staff 2:00 a.m. and got to the farm about feelings urges to hurt or Lance Paul he had *4 to bed. kill he could not control. went to himself he felt Carolyn being had concerns Lance’s about Larry slept Sunday morning and Lance did them. He released but not voice was in, back to the reunion for then went discharged at 9:32 a.m. got she Carolyn called Lance after lunch. work, worry, her to off and he told Saturday morning, Carolyn Later drove Sunday okay. Larry he be left family to Lance and his sister a weekend him agreed join after Lance afternoon (about at Lake Limestone 20 miles reunion at party evening. a cousin’s where, words, Teague), of in south her father, but later he stayed help his be lot of people “there would around who family help drove to the farm to Mend father, Jimmy, [Lance]”. loved Lance’s hay. Carolyn late Sun- bale When called already Carolyn him was there. told what afternoon, Jimmy where day told her happened they had and that “needed to gone, okay she because Lance had felt eye keep Jimmy real close on Lance”. Carolyn Larry he would not be alone. disability a long-term was retired under if had they both testified that seen or hospitalized past and had been in the for of unusual in Lance’s be- anything heard problems.5 Carolyn mental health knew weekend, during they would havior reading discharge the ER sheet that immediately sought care for him. stay Lance had been instructed to with his family be until could seen and assessed p.m., the Mend Lance had About 7:00 counselor, aby and she was concerned gone body hanging his help found leaving Jimmy Lance with about while she pickup, parked at the farm. tree work, but returned Waco she knew nearby, picture steering was on the girl’s family there would be other members on the driv- picture wheel and Lance’s was kept telling around. Lance her he would er’s seat. okay. years later, Jimmy and Car- Almost two reunion, too,
Larry wrongful at the death and sur- olyn brought DePaul, Providence, they against if told Lance should talk Lance had vival action problem. Larry jury The found that the defen- “keep spirits up”, To and Pettit. death, Saturday night. negligence took Lance a rodeo dants’ caused 515, 577, p.m. succeeding (adopting or before 4 on the first busi- Tex. Gen. Laws Safety Code in a nonsubstantive Health person day, may until 4 ness be detained statutes). prior recodification succeeding day”), p.m. on the business first (c) ("A physician person shall examine the as Jimmy’s problems associated with mental possible after the soon within the hours disability are what the dissent refers ....”) apprehended (post-1997 person is post histoiy depression”, “a of severe omitted); 29, April 333, Act hospitaliza- amendments see family history “a 20, R.S., Leg., depression”, post §§ for 72nd ch. tion responsibility Providence, allocated case, 40% hut undisputed in this evidence DePaul, Pettit, 40% 20% and Lance’s intentions is sufficient to refute $400,000 damages assessed for expert testimony the Do- the Dowells’ of what $400,000 wells and patients Lance’s estate. The most would do under cir- similar trial court on judgment rendered the ver- cumstances. A
dict.
court of appeals
divided
affirmed.6
Furthermore,
expert
the Dowells’
never
The
petitioners
actually
Dowells contend that
that hospitalization,
testified
more
negligent
not,
were
discharging
likely
Lance from
than
prevented
would have
ER
a comprehensive
without
opined
assess- Lance’s
expert
suicide.8
ment of
his risk
suicide. Petitioners
high
Lance was at
risk for
suicide and
argue
they
that even
negligent
from the ER
that condi-
respect,
not,
as a
tion caused
his death. The
also
law,
matter of
a proximate
gave “strong
testified that he
consider-
day
Lance’s death a
and a half
We
similarity
later.
ation” to the
of Lance’s suicide
agree with petitioners.
attempt
years
concluding
two
earlier
*5
if
again
hospitalized
Lance had
been
things
causality.
Several
defeat
In the
then,
as he was
the result would “most
place, although
first
expert
Dowells’
likely” have
been
same. But when
many patients
testified that
will consent to
directly
hospitaliza-
asked
about whether
sternly
treatment when
confronted
prevented
suicide,
tion would have
Lance’s
refusal,
dangers
there is evidence
expert
only
answered
that Lance
that Lance himself
not
con-
would
have
have
been at
“low-
improved”
“would
sented to treatment and no evidence that
er
risk”
suicide when he left.
one
No
Providence could have kept Lance from
supposes hospitalization would have made
earlier,
being discharged.
years
Two
hospi-
Lance worse. The issue whether
is
days’
Lance had
to
agreed
five
treatment
talization would have made Lance’s suicide
DePaul,
at
but the
does
record
not show
unlikely,
expert
and the Dowells’
rather
that,
us,
on the occasion before
either
pointedly
opinion.
did not offer that
Lance,
mother,
brother,
his
Petit or
Also,
Fox believed
Lance should
been hos-
Lance’s
the ER
fact,
pitalized.
simply
Lance’s mother testified was
too remote from
death
that Lance
her
“let
keep
asked
not to
them
terms of
time
circumstances. After
release,
me here” and
her “I
told
don’t want to be Lance’s
him
mother watched
These
are important
carefully
here.”
statements
him repeatedly.
checked
She
because
had
him
complete
Lance
control over
took
he
retreat where
stay
go
whether to
by people
Dowells do
would
surrounded
who would
—the
argue that
were grounds
support
there
to hold
him.
called
hear him as-
She
involuntarily.
okay.
Evidence that a rea-
sure her he
brother
patient would
spirits
sonable
have consented
did what he could to lift Lance’s
might
treatment
enough,7
group.
sometimes be
and be sure that he would be in a
2005).
(Tex.App.-Waco
(Tex.
Hosp.,
6.
10. Id. at 17. Id. at 800. 11. Id. Boys (citing Clubs 18. Id. at 799 Doe v. 12. Id. Dallas, 472, Inc., 477 Greater Allbritton, (Tex.1995), Pump 898 Co. v. Union 13. Id. at 801. (Tex.1995), Siegler, and Lear S.W.2d Perez, (Tex.1991)). Inc. Id. at 797. 15.Id.
friends believed further Accordingly, grant petitions treatment re- we for quired, negligence review, argument,21 defendants’ was too oral without attenuated from the appeals’ have a verse court judgment bringing judgment petitioners. substantial factor about. render argues requiring The dissent evi- WAINWRIGHT, concurring Justice dence that have Lance would consented to dissenting part. hospitalization is a new and insurmounta- hurdle, ble but it is It neither. is legally Court holds there was certainly previously not new. have We insufficient evidence that the conduct of recognized duty cooperation “a which Center, Center, Providence Health DePaul patients treating physicians owe who as- defendants) Pettit (collectively Dr. duty sume the them.”19 The caused Lance I Dowell’s suicide. hesitate duty dissent contends that this does join opinion the Court’s as there seems patient when a apply impaired, is but the unchallenged to be some evidence that the undisputed evidence is that did not providers’ duty health care breach of awas impaired himself view did not want agent. separately I be- causative write hospitalized, to be and there is no evidence trial court failing erred hospitalized could have been pro- include Lance against his will. The dissent argues portionate I responsibility questions. Court imply “the seems to that suicide is holding concur in the therefore Court’s simply preventable”,20 but dowe no reversing judgments of the court of is thing. preventable. Suicide appeals, but would remand the trial preventable: Lance’s suicide was the evi- court for new trial. undisputed dence Lance had After their son Lance’s unfortunate sui- instructed, stayed with his (the cide, Carolyn Jimmy Dowell Do- would not hanged himself when he wells) for wrongful sued the defendants But *7 did. there is no evidence that Provi- death damages damages and for survival dence and Pettit caused Lance’s suicide to estate, on of alleging behalf occur when it did. dissent The seems to negligent Lance received health-related provider imply a health care who is departed and that the services defendants negligent treating patient’s in mental accepted from standards of medical care. regardless health is of hable whether the The Dowells asserted that the defendants’ suicide, negligence subsequent caused a failure and properly evaluate retain thereby becoming in an effect insurer of facility Lance in the DePaul caused conduct, patient’s might the whatever it neg- death. The trial submitted the court omitting be. There is basis the DePaul, Providence, ligence and Dr. of health
requirement of causation mental jury Pettit to the but did not include Lance providers. or parents in the submission. The objected We conclude that Lance’s defendants to the omission of proximately from Providence’s ER did not parents negligence from responsibility questions. his death. Petitioners a num- and proportionate raise of all jury ber other issues we need not reach. The found that three defendants 650, Axelrad, 19. v. 221 S.W.3d 654 20. Post at 336. Jackson Smith, (Tex.2007) (quoting Elbaor v. 845 240, (Tex. 1992)). 245 P. 59.1 Tex.R.App. S.W.2d
331 (Tex.1990). Although there is an ex- negligence and that their 525 negligent special relation- this rule when a proximately ception caused Lance’s suicide. exists, jury including parent between a apportioning responsibility, ship found id., liable, child, twenty Provi- a child is understood to percent Dr. Pettit see liable, forty percent years age and DePaul for- who is dence under 18 person “a ty percent jury liable. The awarded been married.” See and has not Tex. Fam. $400,000 adult, was wrongful damages in death As an 101.003. Code $400,000 in The court damages. supervision survival or under the control appeals affirmed. parents. A lack of action on part of the Dowells could not constitute defendants assert that was erro- in absence of contributory negligence neous for trial court exclude Lance Zezulka, legal duty. Thapar See v. some parents from the in the questions and his (Tex.1999) 635, (holding 637-39 although it jury charge. I conclude that duty owes no professional mental-health Dowells, it not error to exclude the was parties patient’s of a threats warn third error for the trial court to refuse to doctor-patient in of a relation- the absence negligence pro- include Lance Therefore, parties). the third ship with questions. portionate responsibility refusing trial court did not err in may A reviewing court reverse and re- negli- on the Dowells’ question submit a alleged mand for a new trial based on an gence proportionate responsibility. jury charge only error in a if such error Next, argue that Lance the defendants reasonably “was and probably calculated his dis- negligent failing follow improper did cause the rendition of instructions, negli- that his charge judgment.” Dev. Island Recreational been submitted to Ass’n, gence should have Corp. Republic Tex. 710 Sav. Legis- jury. respond The Dowells (Tex.1986); S.W.2d see Ster- also specifically prohibited juries lature has ling Adderley, Trust Co. v. 168 S.W.Bd people (Tex.2005); considering Young, Reinhart v. (Tex.1995). 93.001 of who commit suicide. Section S.W.2d To make this Code Texas Civil Practice Remedies determination, the court should reviewing personal a civil action for provides that in pleadings parties, consider of the “the death, or person’s] “if suicide injury [a or trial, presented charge evidence and the attempted was caused whole its entirety.” Island Recreational Dev. a failure on the part by Corp., 710 *8 applicable comply to defendant with they argue The defendants first that standard, at- then such suicide or legal negli- submitted evidence of the Dowells’ shall not be a defense.” tempted suicide gence and that such evidence entitled them 4, Hatley, also Kassen v. 887 S.W.2d See jury question the regarding to Dowells’ (Tex.1994). the to this Applying 12 statute responsibili- negligence proportionate Lance’s conduct in com- case means that point defendants to ty. Specifically, the by be considered mitting could not suicide of the to remain with the failure Dowells v. jury. County MHMR See Dallas thirty-six hours between his (Tex.1998) 339, 346 Bossley, 968 S.W.2d suicide, Fox’s despite Nurse Kassen, (Abbott, J., 887 dissenting); however, Generally, instruction to do so. S.W.2d duty to the conduct of there is control the defen- argue that since The Dowells persons. third See Greater Houston finding 523, of dants do not contest Phillips, Co. v. 801 S.W.2d Transp. 332 care,
breach of the of a jury standard members until ex- follow-up could not any consider of amination at Lance’s conduct. the MHMR center in three statute, however, days. jury A say does not that could have all determined from of acts a deceased evidence submitted that Lance failed by cannot considered jury follow those instructions and that proportionate when such determining contributing failure was a cause of sponsibility causing injuries in a death. We previously recognized Rather, upon finding ease. that the defen- patient duty that a cooperate has a applicable dants breached an stan- treating physicians, which cooper- includes dard, precludes the statute the “suicide or ation both diagnosis and in treatment. attempted being suicide” from an affirma- Axelrod, Jackson 654 tive defense. Tex. Civ. PRAC. & Rem.Code (Tex.2007); Smith, Elbaor v. 845 S.W.2d § 93.001. (Tex.1992). Elbaor, we held This question: raises the Under what patient the failure take pre- circumstances and in what light may scribed negli- antibiotics evidence of Lance’s actions be jury? considered gence that should have been as submitted Chapter 33 of the Texas Civil Practice and Elbaor, a question jury. to the 845 S.W.2d Remedies requires proportioning Code at 251. We later allowing reaffirmed damages among responsible parties. Sec jury to patients consider conduct of specifies jury tion 33.003 that a “shall de when determining proportionate responsi- termine the percentage responsibility bility part of comparative an inclusive ... with respect person’s to each causing negligence rather than “compart- scheme contributing or in any way the mentalizpng] catego- rigid recovery harm for damages which Jackson, ries.” S.W.3d at sought, by negligent whether act omis argues Justice O’Neill’s dissent sion, by any unreasonably defective or jury could not have found Lance negli- dangerous product, by other conduct or gent, expert testimony based on activity that applicable legal violates an impaired mental condition ability standard, or by combination of these.” follow jury, instructions. "While & 33.003. The Tex. Civ. Prac. Rem.Code asked, may not have found Lance negli- is to jury make this determination all gent, jury’s role and not ours claimants, defendants, and responsible determine whether Lance’s conduct con- parties, third where evidence has been (and tributed to his harm what degree, support Id.-, submitted a question. such if any) or mental whether Lance’s state Partners, Operating F.F.P. L.P. v. Due responsibility portion absolved him of for a (Tex.2007). nez, If given oppor- the harm. It was not apart Lance’s actions of com act tunity. as the Dowells were entitled Just mitting applicable violated an stan argue jury Lance was not (such negligence), jury dard negligent based on mental condition weighed should have actions as circumstances, the defendants were *9 signing proportionate responsibility. entitled to to convince the of attempt jury Before from being discharged hospi- the Lance’s and his proportionate tal, Lance by was instructed Nurse Pox to responsibility for his death. Although this a prescribed take approach charges juries medication1 and remain the subtle Contrary pre- help suggestion, prescribing 1. the dissent’s evidence that medication to scribing part physi- sleep get medication of Lance much was not of the needed Lance, psychiatric of and cian’s treatment there is no treatment. severely slitting his wrist generally negligent con- suicide separating task of stitches, police from the conduct require duct of the deceased hid from enough to suicide, I in of the commission involved night, and told in the all officers woods guid- juries, properly selected and believe try that he would repeatedly police officers ed, nu- accomplishing this capable are of cir- Despite these again. kill himself Part- F.F.P. Operating anced task. See of a number presence the cumstances and L.P., ners, cases (citing 237 S.W.3d including hospi- high past risk of factors— juries in subtle distinc- which considered suicide, attempted another for talization in- damages between apportioning tions week, attempt earlier that possible suicide patrons shops). Con- toxicated and dram history depres- family of severe and assertion, my trary to O’Neill’s Justice hospital discharged Lance within sion—the position “parties is not that that breached psychiatric with no treatment three hours the be [should] standard absolved for a follow- him return instructed that, Legislature liability,” but the days. Lance committed up exam in three directed, parties caused or multiple where Lance’s thirty-three hours later. suicide harm, be contributed to cause each should that the evidence responsible percentage presented held for their 332. responsibility. in the performed suicide-risk assessment cursory and in- emergency was so room ques- the requested Failure to include of care complete as breach the standard reasonably proba- calculated tions bly that, an improper proper did cause rendition of had the assessment Reinhart, 906 verdict. S.W.2d performed, the standard care would have The trial court should included required different treatment negligence question, an instruc- dispute The Court does not prescribed. jury, requested, tion to the if not to consid- providers’ negligence acknowl- determining er Lance’s act of suicide failed to edges that doctor and nurse any, negligence, proxi- whether Lance’s if comprehensively assess Lance’s mately Any subsequent caused death. Nevertheless, risk. 262 S.W.3d finding proportionate responsi- of Lance’s is no the Court concludes there evidence bility negli- be limited to court’s and reverses trial causation gence in first As lan- question. result, To reach that the Court judgment. guage assumption of the of the risk statute that are in- constructs new hurdles governs all “civil damages aetion[s] for surmountable, here, when, as particularly death,” personal injury in this case provider’s alleged negligence results charge same limitations use misapplies the Court death. Because apply suicide as affirmative defense evidence, I disregards relevant law and Carolyn Jimmy See Tex. Dowell. respectfully dissent. According- 93.001. Civ. PRAc. & Rem.Code ly, appeals’ I would reverse the court of review re- proper legal-sufficiency A and remand these cases to the judgments credit favorable evidence quires courts to trial court for new trial. could, disregard jurors reasonable jurors reasonable contrary evidence unless a dissenting O’NEILL filed
Justice Wilson, opinion, in Chief City which Justice could not. Keller (Tex.2005). Justice MEDINA JEFFERSON To establish joined. negligence, on medical liability based *10 legal a must demonstrate that plaintiff brought to emer-
Lance Dowell was breached, exists, duty duty by police attempted after he gency room 334
the breach
probabili-
in reasonable medical
a proper
that because
evaluation would
ty
injury.
caused the
See IHS Cedars
high
have found that “Lance was at
risk of
DeSoto, Tex.,
Treatment Ctr.
v.
himself,”
Inc.
killing
of care re-
standard
Mason,
794,
(Tex.2004);
143 S.W.3d
quired
provided
that he be
some form of
Milo,
Hosp.
Park Place
v. Estate
909 psychiatric treatment
discharge.
before
(Tex.1995).
The Court
Yet the
that
jury’s
Court holds
ver-
prove
concludes the Dowells failed to
cau- dict cannot stand because the Dowells
sation
presented
because no evidence was
that,
prove
failed to
had
been prop-
hospitalized
that
could
have been
erly diagnosed,
voluntarily
he would have
properly
he had
diagnosed
been
or that
hospitalization
submitted to
or could have
hospitalization would have made his suicide
However,
involuntarily
been
retained.
improbable. The Court also concludes
our
nothing
jurisprudence
requires
that the suicide
too
remote from the
a
Today,
them do so.
the Court adds
negligent discharge to
constitute
patient’s
a
causative element
burden
I disagree.
cause.
a
provider negligently
when
health care
All
expert testimony
of the
trial
indi-
to diagnose
diagnoses
fails
improperly,
cated that Lance’s medical assessment
requiring
patient to
demonstrate that
failed to take into
significant
consideration
he would have
appropriate
followed
medi-
suicide risk factors. Lance’s examination
given.
cal advice
it been
had
In cases like
minutes,
only
lasted
two to three
even this,
patient
where the
dies
a result
though the
it
expert
Dowells’
testified
treatment,
alleged negligent
that bur-
professionals
takes most
an hour to
ado
met,
testimony
den could
never
such
comprehensive
competent
risk assess-
surely
speculative.
would
be excluded as
ment for
pa-
suicide and
evaluate the
White,
See Int’l &
N. R.
Great
Co. v.
Moreover,
adequately.
tient
the suicide
(1910)
(holding
Tex.
131 S.W.
assessment
record that was made was
a
may
testify
witness
as what
wrong, indicating Lance had never before
person
deceased
would
done because
attempted
clearly
suicide when
he had and
testimony
speculation);
is mere
see
the Center had
ready access to
infor-
602;
also Tex.R. Evid.
Evm
Tex.R.
expert
mation.
Dowells’
testified that
Though
required
we have never
a health
factors,
nearly all of the
risk
overlooked
liability plaintiff
prove
he would
history
including family
hospitalization
proper diagnosis
have followed
doctor’s
depression
and suicidal ideation and
and recommended treatment had it been
before,
days
Lance’s suicidal behavior
made,
plaintiff
require
alleges
we do
who
pointed
high
risk that Lance
toward
lack of
informed consent to show that
expert
commit
That
suicide.
con-
person
reasonable
would have refused con
inadequate
cluded: “I
on
think based
explained.
had
sent
risks been
risk assessment for suicide that was done
407, 410
McKinley
Stripling,
Lance,
on
that he
should have
admit-
(Tex.1989).
presented
The Dowells
evi
hospital
psychiatrist
ted
or a
should
person similarly
dence that a reasonable
have been called.
I think that
...
it was
hospital
situated would have consented to
room
emergency
[the
erroneous for
doc-
presented
ization. The evidence
indicated
him at that time.”
tor]
When
patients generally
to a
that suicidal
consent to
asked whether
error rose
breach
care,
hospitalization
properly
when it is
advised.
expert
standard of
All three
sponded
experts
did. The
reiterated
of the Dowells’
testified
that,
nearly
point
testimony, explaining
experience,
in later
all or
all of
*11
in nine-
occurs after treatment
hospitalization
suicide risk
patients
agree
then*
in
ninety-five
patients
ty
percent
are
consequences
doing
not
so
when the
that,
proper
with
Lance’s
situation
sum,
presented
In
explained.
Dowells
after
treatment,
passes
ideation
suicidal
person in
that a reasonable
evidence
ninety-six
hours. As
twenty-four
agreed to hos
position would have
Lance’s
noted,
prior sui-
Lance’s
expert
Dowells’
legal support
and there is no
pitalization,
room
emergency
visit
attempt
cide
requiring
more.
very
circumstances.
under
similar
were
that Lance’s state-
The Court concludes
Then,
days
admitted
for six
Lance was
ne-
stay
he
rather not
ment that
would
until
occurred
episodes
no
suicidal
further
However,
experts’ testimony.
gates the
years later. The Dowells’
this one two
in
ex-
patients
unlike the
described
“if
were
[Lance]
considered
expert
never advised
perts’ testimony, Lance was
time,
likely, the
this
most
same
admitted
that,
no
had it
stay.
There is
evidence
my
In
would have occurred.”
outcome
his
Lance that it was in
explained
been
view,
some evidence
presented
the Dowells
stay,
interest
would have
best
he
that,
probability,
in
medical
reasonable
anything,
If
this case
fused.
nurse
prevented
have
Lance’s suicide would
appeared
discourage
hospital-
Lance’s
negligence, which is
providers’
but for the
Park Place
ization,
stay
requires.
law
See
that a
all
advising
mother
Hosp., 909 S.W.2d
just
up
run
and admon-
big
“would
bill”
ishing Lance that
should have insur-
Citing
Cedars Treat-
our decision
IHS
although
ance. And
was
Lance’s mother
Mason,
DeSoto, Texas v.
ment Center of
nurse
him to
present when the
instructed
as a matter of law
the Court concludes
stay
parents,
with
she testified that
suicide was too attenuated
that Lance’s
gave
for causa-
providers’ negligence
never
her
instructions
nurse
from the
individual’s use
good judgment,” impulsive as Lance be at patient
suicidal violating any promises
risk for about
post-release behavior. This would include
following providers’ terse instruction Wainwright’s
“[sjtay w/parents.” Justice
approach would attribute causation care
breach of mental health standard of mental patient undiagnosed
to the whose injury,
impairment very was the cause of clearly contrary
which is statute’s
intent. See Tex. Civ. PRAC. & Rem.Code 93.001(a)(2). providers’ release only a few of general-
Lance with words
ized instruction breached standard not be precisely because Lance could
expected to it. The follow cases Justice
Wainwright do con- support cites for
cern mental whose patients with illness plans comply
abilities to
with treatment
substantially impaired. See
Jackson
Axelrod,
(Tex.2007);
Elbaor v.
1992). sum, agree I that the evidence do legally case insufficient or jury’s
injury support too attenuated to
findings, improperly or that case was
submitted, judg- would affirm the court and court
ments of trial not, I
appeals. Because the does Court
respectfully dissent.