O'Neill Dissent in

Providence Health Center v. Dowell (
Tex. 2008)  

I do not agree that the evidence in this case is legally insufficient or the injury too attenuated to
support the jury’s findings, or that the case was improperly submitted, and would affirm the judgments
of the trial court and the court of appeals. Because the Court does not, I respectfully dissent.

Providence Health Center v. Dowell, No. 05-0386 (Tex. May 23, 2008)(Hecht) (HCLC suicide risk management,
medical treatment) (court concludes that discharge from Defendant's ER did not proximately cause young man's
death by suicide.)


Justice O'Neill's Dissent in Providence Health Ctr v. Dowell (Tex. 2008)


    Justice O’Neill filed a
dissenting opinion [9 pages in pdf], in which Chief Justice Jefferson and Justice Medina

    Lance Dowell was brought to the emergency room by police after he attempted suicide by slitting his wrist
severely enough to require stitches, hid from police officers in the woods all night, and told police officers
repeatedly that he would try to kill himself again. Despite these circumstances and the presence of a number of
high risk factors — including past hospitalization for attempted suicide, another possible suicide attempt earlier
that week, and a family history of severe depression — the hospital discharged Lance within three hours with no
psychiatric treatment and instructed him to return for a follow-up exam in three days. Lance committed suicide
thirty-three hours later. Lance’s family presented expert evidence that the suicide-risk assessment performed in
the emergency room was so cursory and incomplete as to breach the standard of care and that, had the proper
assessment been performed, the standard of care would have required different treatment to be prescribed. The
Court does not dispute the providers’ negligence and acknowledges that the doctor and nurse failed to
comprehensively assess Lance’s suicide risk. ___ S.W.3d ___, ___. Nevertheless, the Court concludes there is
no evidence of causation and reverses the trial court’s judgment. To reach that result, the Court constructs new
legal hurdles that are insurmountable, particularly when, as here, the provider’s alleged negligence results in
death. Because the Court misapplies the law and disregards relevant evidence, I respectfully dissent.

    A proper legal-sufficiency review requires courts to credit favorable evidence if reasonable jurors could, and
disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005). To establish liability based on medical negligence, a plaintiff must demonstrate that a legal duty
exists, the duty was breached, and the breach in reasonable medical probability caused the injury. See IHS
Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2003); Park Place Hosp. v.
Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). The Court concludes the Dowells failed to prove causation
because no evidence was presented that Lance could have been hospitalized if he had been properly diagnosed
or that hospitalization would have made his suicide improbable. The Court also concludes that the suicide was too
remote from the negligent discharge to constitute legal cause. I disagree.

    All of the expert testimony at trial indicated that Lance’s medical assessment failed to take into consideration
significant suicide risk factors. Lance’s examination lasted only two to three minutes, even though the Dowells’
expert testified it takes most professionals an hour to do a comprehensive and competent risk assessment for
suicide and to evaluate the patient adequately. Moreover, the suicide assessment record that was made was
wrong, indicating Lance had never before attempted suicide when clearly he had and the Center had ready
access to that information. The Dowells’ expert testified that nearly all of the overlooked risk factors, including a
family history of hospitalization for depression and suicidal ideation and Lance’s suicidal behavior days before,
pointed toward a high risk that Lance would commit suicide. That expert concluded: “I think based on the
inadequate risk assessment for suicide that was done on Lance, that he should have been admitted to the
hospital or a psychiatrist should have been called. I think that . . . it was erroneous for [the emergency room
doctor] to discharge him at that time.” When asked whether that error rose to a breach of the standard of care,
the expert responded that it did. The expert reiterated that point in later testimony, explaining that because a
proper evaluation would have found that “Lance was at high risk of killing himself,” the standard of care required
that he be provided some form of psychiatric treatment before discharge.

    Yet the Court holds that the jury’s verdict cannot stand because the Dowells failed to prove that, had Lance
been properly diagnosed, he would have voluntarily submitted to hospitalization or could have been involuntarily
retained. However, nothing in our jurisprudence requires them to do so. Today, the Court adds a causative
element to a patient’s burden when a health care provider negligently fails to diagnose or diagnoses improperly,
requiring the patient to demonstrate that he would have followed appropriate medical advice had it been given. In
cases like this, where the patient dies as a result of the alleged negligent treatment, that burden could never be
met, as such testimony would surely be excluded as speculative. See Int’l & Great N. R.R. Co. v. White, 131 S.W.
811, 812 (Tex. 1910) (holding that a witness may not testify as to what a deceased person would have done
because such testimony is mere speculation); see also Tex. R. Evid. 602; Tex. R. Evid. 701.

    Though we have never required a health care liability plaintiff to prove he would have followed a doctor’s
proper diagnosis and recommended treatment had it been made, we do require a plaintiff who alleges lack of
informed consent to show that a reasonable person would have refused consent had the risks been explained.
McKinley v. Stripling, 763 S.W.2d 407, 410 (Tex. 1989). The Dowells presented evidence that a reasonable
person similarly situated would have consented to hospitalization. The evidence presented indicated that suicidal
patients generally consent to hospitalization when it is properly advised. All three of the Dowells’ experts testified
that, in their experience, all or nearly all of their patients agree to hospitalization when the consequences of not
doing so are explained. In sum, the Dowells presented evidence that a reasonable person in Lance’s position
would have agreed to hospitalization, and there is no legal support for requiring more.

    The Court concludes that Lance’s statement that he would rather not stay negates the experts’ testimony.
However, unlike the patients described in the experts’ testimony, Lance was never advised to stay. There is no
evidence that, had it been explained to Lance that it was in his best interest to stay, he would have refused. If
anything, the nurse in this case appeared to discourage Lance’s hospitalization, advising his mother that a stay
“would just run up a big bill” and admonishing Lance that he should have insurance. And although Lance’s mother
was present when the nurse instructed him to stay with his parents, she testified that the nurse never gave her
any instructions with regard to Lance’s care. The written “instructions” Lance received were cursory and stated in
their entirety: “Be seen at MHMR on Tuesday. Stay w/ parents until seen & assessed by counselor.” This
evidence, a reasonable factfinder could have concluded, likely indicated to Lance and his mother that his
condition did not warrant serious immediate concern. Because Lance was never properly advised, we cannot
know whether he would have consented to treatment, and nothing in our jurisprudence requires such a showing.

    The Court further concludes there is no evidence that hospitalization would have made Lance’s suicide
“unlikely.” ___ S.W.3d at ___. Yet the Dowells’ expert testified, as the Court acknowledges, that the probable
outcome of hospitalization would be that Lance’s risk of suicide would be significantly lowered. The expert went on
to explain that a significant drop in suicide risk occurs after treatment in ninety to ninety-five percent of patients in
Lance’s situation and that, with proper treatment, suicidal ideation passes after twenty-four to ninety-six hours. As
the Dowells’ expert noted, Lance’s prior suicide attempt and emergency room visit were under very similar
circumstances. Then, Lance was admitted for six days and no further suicidal episodes occurred until this one two
years later. The Dowells’ expert considered that “if [Lance] were admitted this time, most likely, the same outcome
would have occurred.” In my view, the Dowells presented some evidence that, in reasonable medical probability,
Lance’s suicide would have been prevented but for the providers’ negligence, which is all that the law requires.
See Park Place Hosp., 909 S.W.2d at 511.

    Citing our decision in IHS Cedars Treatment Center of Desoto, Texas v. Mason, the Court concludes as a
matter of law that Lance’s suicide was too attenuated from the providers’ negligence for causation to exist. See
143 S.W.3d at 794. In IHS Cedars, the plaintiff was discharged from a mental-health facility along with a fellow
patient who had allegedly befriended her and asserted unnatural influence over her. Twenty-eight hours after
their discharge, the plaintiff was riding in the friend’s car when the friend experienced a psychotic episode that
caused her to speed and drive erratically. When a dog ran out in front of the car, the friend swerved to avoid it
and crashed the car, causing plaintiff’s injuries. We held the chain of causation was too remote for liability
purposes because the defendants could not have foreseen at the time of plaintiff’s discharge that she would later
be riding with the friend, who would experience a psychotic episode, drive fast, and swerve to avoid an animal that
ran out into the road. Unlike IHS Cedars, in this case there was a causal connection between Lance’s negligent
treatment and his later injury. Lance was taken to the emergency room precisely because he had attempted
suicide. The Dowells alleged, the jury found, and the health care providers no longer contest that the providers
were negligent in not properly assessing and treating Lance’s suicide risk. The experts testified that when he was
discharged, “Lance was at high risk of killing himself.” That high risk became a reality thirty-three hours later. On
this record, I simply cannot agree that Lance’s suicide was so attenuated from the providers’ negligence as to
vitiate causation as a matter of law. In addition, there was no intervening tortious conduct here. The Court implies
that Lance’s family was contributorily negligent in letting Lance out of their sight. But parents have no legal duty
regarding the behavior of their adult children. Villacana v. Campbell, 929 S.W.2d 69, 75 (Tex. App.—Corpus
Christi 1996, writ denied). In any event, Lance’s parents’ ability to supervise and assess his behavior more
properly speaks to whether the providers breached the standard of care. As the Dowells’ expert explained, given
that Lance’s brother and the police had been unable to keep Lance safe the night before he visited the
emergency room, it was a breach of the standard of care to believe his parents would have been able to
effectively do so. Furthermore, the fact that Lance showed no signs of his impending suicide that were discernible
to his family is precisely why the intervention of trained mental-health professionals is so important. Although
Lance’s mother was a nurse, she had no training or experience with mental-health patients or in identifying the
indicia of severe depression. She relied upon the nurse’s assessment, and only a proper medical evaluation could
have revealed the severity of Lance’s illness. Lance’s family was not an adequate substitute for professional care.
Thus, releasing Lance into the care of his family could not have been an intervening cause.

    Finally, by imposing additional evidentiary burdens on mental-health patients when improper diagnosis leads to
death, the Court seems to imply that suicide is simply not preventable. This premise, however, is contrary to the
Civil Practice and Remedies Code, Section 93.001(a)(2), which provides: “if the suicide or attempted suicide was
caused in whole or in part by a failure on the part of any defendant to comply with an applicable legal standard,
then such suicide or attempted suicide shall not be a defense.” Tex. Civ. Prac. & Rem. Code § 93.001(a)(2).

    Recognizing that the statute precludes an affirmative defense of suicide when, as here, an applicable legal
standard has been breached, Justice Wainwright would nonetheless require the jury to assess and allocate Lance’
s proportionate responsibility. According to Justice Wainwright, Lance’s failure “to take a prescribed medication
and remain with family members” could be a contributing cause of his death “apart from the act of committing
suicide . . . .” ___ S.W.3d at ___. Under such an approach, a factfinder would have to somehow separate Lance’s
suicide from the events leading to his suicide. However, I find it unlikely that, in drafting the statute, the Legislature
intended parties who breached the standard of care to be absolved from liability because the act of isolating one’s
self in order to commit suicide is somehow separable from the act of suicide itself. Notwithstanding the difficulties
inherent in requiring the factfinder to divorce actions leading to suicide from the actual event, there is no factual
support for such a submission in this case. Undisputed evidence indicates that the medication Lance was
prescribed was to help him sleep, not specifically to treat his psychiatric needs. In addition, the Dowells’ expert
testified at length about “no-suicide” contracts and similar instructions to and agreements with patients. He opined
that such agreements are generally ineffective at preventing suicide unless they are part of an inpatient treatment
plan. The expert stated that it was “foolish” to expect a patient at a high risk of suicide to comply with a “no-
suicide” contract or other post-release instructions relating to suicide prevention. He explained that “the
debilitating effect of depression on a person’s mental processes” inhibits an individual’s ability “to use self-control
and good judgment,” and that an impulsive suicidal patient such as Lance would be at risk for violating any
promises about his post-release behavior. This would include following the providers’ terse instruction to “[s]tay w/
parents.” Justice Wainwright’s approach would attribute causation for breach of a mental health standard of care
to the patient whose undiagnosed mental impairment was the very cause of injury, which is clearly contrary to the
statute’s intent. See Tex. Civ. Prac. & Rem. Code § 93.001(a)(2). The providers’ release of Lance with only a few
words of generalized instruction breached the standard of care precisely because Lance could not be expected to
follow it. The cases Justice Wainwright cites for support do not concern patients with mental illness whose abilities
to comply with treatment plans were substantially impaired. See Jackson v. Axelrad, 221 S.W.3d 650 (Tex. 2007);
Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992).

    In sum, I do not agree that the evidence in this case is legally insufficient or the injury too attenuated to support
the jury’s findings, or that the case was improperly submitted, and would affirm the judgments of the trial court and
the court of appeals. Because the Court does not, I respectfully dissent.


                                                                Harriet O’Neill




THE ESTATE OF JONATHAN LANCE DOWELL, DECEASED; from McLennan County; 10th district (
10-02-00026-CV, 167 S.W.3d 48,
03-30-05) (
Dissent by Justice Tom Gray)

- consolidated with -  

Pettit, D.O. v. Dowell (Tex. May 23, 2008)
JONATHAN LANCE DOWELL, DECEASED; from McLennan County; 10th district (10-01-00420-CV, ___ S.W.3d ___,

Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petitions for review and without hearing oral argument, the
Court reverses the court of appeals' judgment and renders judgment.
Justice Hecht delivered
the opinion of the Court, in which Justice Brister, Justice Green, Justice Johnson, and Justice Willett joined.
Wainwright delivered an opinion concurring in part and dissenting in part.
O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.