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

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