Pediatrics Cool Care, Jose J. Salguero, M.D., PA, Jose J. Salguero, M.D., and Jenelle Robinson, P.A.-C. v. Ginger Thompson, Individually and as the Representative of the Estate of A.W.(Deceased), and Brad Washington ( 2021 )

Affirmed and Memorandum Opinion filed January 29, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00031-CV
PEDIATRICS COOL CARE, JOSE J. SALGUERO, M.D., PA, JOSE J.
SALGUERO, M.D., AND JENELLE ROBINSON, P.A.-C., Appellants
V.
GINGER THOMPSON, INDIVIDUALLY AND AS THE
REPRESENTATIVE OF THE ESTATE OF A.W. (DECEASED), AND
BRAD WASHINGTON, Appellees
On Appeal from the 40th District Court
Ellis County, Texas
Trial Court Cause No. 88970
MEMORANDUM OPINION
This is an appeal from a jury verdict in a medical malpractice and wrongful
death action brought by appellees, Ginger Thompson, individually and as the
representative of the estate of A.W. (deceased), and Brad Washington against
appellants Pediatrics Cool Care, Jose J. Salguero, M.D., P.A., Jose J. Salguero,
M.D., and Jenelle Robinson, P.A.-C., resulting in a judgment in favor of appellees.
Appellants present multiple issues contesting the judgment. For the reasons stated,
we affirm the judgment of the trial court.
I. BACKGROUND
In 2010, Ginger Thompson’s (“Thompson”) and Brad Washington’s
(“Washington”) daughter, A.W., who was twelve years old, began receiving
treatment as a patient at Pediatrics Cool Care (“PCC”), a full-service pediatric
clinic located in Ennis, Texas.1
Jose J. Salguero, M.D. (“Dr. Salguero”) is the lead physician at PCC; he
does business as PCC through his professional association, Jose J. Salguero, M.D.,
P.A. Dr. Salguero is responsible for overseeing all employees and caregivers in his
practice, including nurse practitioners, physician assistants, and medical assistants.
During the relevant time, Allyn Kawalek, R.N., F.N.P.-B.C.2 (“Kawalek”) and
Jenelle Robinson, PA-C3 (“Robinson”), worked, respectively, as a nurse
practitioner and a physician’s assistant under the supervision of Dr. Salguero at
PCC.
At PCC, medical records are created by the physician’s assistant or the nurse
practitioner by dictating the relevant information into the telephone; the dictation is
then be transcribed by a third-party company located in New Mexico. The
physician’s assistants and family nurse practitioners log in to the dictation service
under Dr. Salguero’s login number. The physician assistants and nurse
1
The Texas Supreme Court ordered the Tenth Court of Appeals to transfer this case to
this court. We must therefore decide the case in accordance with the precedent of the Tenth
Court of Appeals if our decisions otherwise would have been inconsistent with that court’s
precedent. See Tex. R. App. P. 41.3.
2
Kawalek is a registered nurse with family nurse practitioner specialization and is board
certified.
3
Robinson is a physician assistant and is certified.
2
practitioners do not review or sign off on their medical records; instead, all records,
are electronically signed by Dr. Salguero whether he reviewed the record or not.
Separate and apart from the physician’s assistant and nurse practitioner, there are
seven medical assistants at PCC, each with their own login numbers with respect to
medical records, who are permitted to enter the patient’s vital signs and other
triage information into a patient’s medical record; the medical assistants were not
supposed to diagnose patients, treat patients, perform medical coding, or issue
prescriptions, without Dr. Salguero’s permission.
Between October 2010 and January 2012, A.W. was seen by different
healthcare providers at PCC for a variety of ailments (e.g., fractured finger,
dysmenorrhea, sore throat, and acne) and was evaluated multiple times for
gastrointestinal complaints, including vomiting and abdominal migraines as well as
migraine headaches. Thompson, A.W.’s mother, always accompanied A.W.
during her appointments.
March 1, 2012, office visit
On March 1, 2012, A.W. went to PCC with her mother and was evaluated by
Robinson. At that time, A.W. complained of depression, stating that she felt sad
all the time, that she could not control her feelings, that she cried while watching
television commercials, and that she was stressed out. Thompson indicated to
Robinson that A.W.’s depression had been going on for some time. Thompson
stated there was a family history of depression and bipolar disorder and that
Thompson herself was taking Celexa for depression.
Robinson spent less than thirty minutes evaluating A.W. Robinson did not
perform a detailed psychiatric work-up on A.W. or use the depression
questionnaire that was available; she diagnosed A.W. with depressive disorder and
prescribed a 30-day supply of Celexa (20mg/day). Celexa is an antidepressant
3
medication with a “black box” warning label that Celexa has a significant risk of
serious adverse effects, including suicidal ideation. Robinson did not specifically
recall the visit, but maintains she always gives the warning when prescribing
Celexa, including possible suicide ideation and that the patient needs to be watched
closely when starting the medication. Robinson further asserts that she gave
Thompson the name and number of counselors in the area, and strongly
recommended that A.W. get counseling. Robinson wrote in her notes that A.W.
was to return to PCC for a follow-up appointment in one week. Robinson did not
recall telling the receptionist to schedule an appointment for A.W. in one-week.
Thompson denied that Robinson gave her names of area counselors;
however, Thompson admitted looking for a counselor and then deciding not to
send A.W. to one after A.W. indicated she did not want to see a counselor.
Thompson denied that anyone instructed her to schedule a follow-up appointment
for A.W. within one week.
Without Robinson’s knowledge, a medical assistant at PCC changed A.W.’s
medical record from a diagnosis by Robinson of depression to “depression, not
otherwise specified.” Additionally, Robinson did not prescribe any refills of
Celexa but the medical assistant sent the pharmacy the 30-day prescription plus
three refills—approximately 120 days or four months. The prescription that was
sent to the pharmacy, as opposed to the one Robinson intended, exceeded what
Robinson could prescribe for Celexa under PCC policies and Drug Enforcement
Administration regulations. Robinson did not see the changes the medical assistant
made in A.W.’s medical record until after the lawsuit was filed in 2014 because
PCC did not have a policy or procedure in place for the physician assistants or
nurse practitioners to review medical records after they were transcribed.
4
April 17,2012, office visit
On April 17, 2012, A.W. returned to PCC complaining of a migraine and
was seen by Kawalek. At that time, only prior office visit notes regarding A.W.
were available to Kawalek. A.W. indicated that she had not had a migraine for a
month and a half, and the medication previously prescribed (i.e., Relpax) had
“knocked it out”; however, A.W. needed a note for school. Kawalek performed a
well-child visit, noting that both A.W. and Thompson had noticed a huge positive
change in A.W.’s mood since beginning Celexa. Kawalek assessed A.W. with
migraines, depressive disorder, and acne. Kawalek continued the Celexa
prescription. Kawalek did not question the prescription or suggest A.W. follow-up
with Robinson concerning her depression diagnosis.
After Kawalek dictated A.W.’s medical record, the record was altered by
someone else in the office to add the phrase “Patient is to come back in 30 days for
follow-up.” The record was altered on March 4, 2014, according to the electronic
medical record access log but was electronically signed by Dr. Salguero on March
7, 2014.
July 31, 2012, telephone call and refill
On July 31, 2012, Thompson called PCC and asked for a refill of A.W.’s
Celexa prescription. At that time, Bernadette Aguillon (“Aguillon”), a medical
assistant at PCC, spoke to Thompson and told her that she would call in a
prescription for a 30-day supply and three refills. Aguillon looked at A.W.’s chart
and noticed that A.W. had not been in the office since April of 2012. Aguillon
allegedly tried to call Thompson back to tell her A.W. needed to return to PCC but
she was not able to speak with her. Aguillon was not authorized to issue
prescriptions and did not have permission from any of the providers at PCC to
issue A.W.’s refills. Nevertheless, Aguillon refilled the prescription.
5
On August 14, 2012, A.W. was found unresponsive in her room and later
pronounced dead. An autopsy documented her cause of death as suicide from a
Benadryl overdose.
Aguillon learned of A.W.’s suicide from her daughter who went to school
with A.W. The following day, Aguillon viewed A.W.’s chart to confirm she had
been a patient and to review what treatment had been provided at the clinic. A
week or so later, Washington contacted PCC and requested copies of A.W.’s
medical records. All records requests to PCC went to Sylvia Lopez, the assistant
manager at PCC, and she accessed A.W.’s records to make a copy for Washington.
Procedural History
On February 26, 2014, appellees filed this medical malpractice case against
PCC, Dr. Salguero, M.D., P.A., Dr. Salguero, M.D., Robinson, and Kawalek,
alleging negligence and gross negligence relating to the care and treatment
rendered to A.W. on or about March 1, 2012, April 17, 2012, and July 31, 2012.
Appellees assert appellants were negligent in a variety of ways, including but not
limited to, at the time of prescribing the anti-depressant Celexa, appellants’ failure
to: discuss with A.W. or Thompson the black box warning; inform A.W. and
Thompson to read the package insert to the anti-depressant; inform them that A.W.
should be closely monitored while taking the anti-depressant; inform them that
A.W. should be evaluated by a psychiatrist or psychologist; warn them that Celexa
was linked to an increased risk of suicide. Appellees also alleged that appellants
failed to monitor A.W. once the Celexa had been prescribed and refilled the
medication over the phone without further evaluating A.W. Appellees further
alleged that Dr. Salguero failed to properly oversee and monitor his physician
assistant and nurses regarding prescribing medications, such as Celexa, to
6
adolescent patients. Appellees alleged as a result of such negligence, A.W.
committed suicide on August 14, 2012.
Additionally, appellees alleged that PCC and/or the P.A. was vicariously
liable for the conduct of Dr. Salguero, Robinson, and Kawalek, and any nurses and
medical staff, and that PCC and/or P.A. was directly negligent. Appellees brought
wrongful death claims seeking compensatory damages, including mental anguish
and pecuniary loss. Thompson also brought survival claims as Representative of
the Estate of A.W., seeking various compensatory damages. Appellees sought
exemplary damages.
In May 2018, a jury trial commenced. At trial, appellees elicited expert
testimony from Herschel Robert Lessin, M.D. (“Dr. Lessin”), a board-certified
pediatrician, regarding the standard of care for the healthcare providers at PCC,
and expert testimony from Fred Moss, M.D. (“Dr. Moss”), a board-certified
psychiatrist, regarding causation. Appellees also elicited testimony from an
economic expert, Justin Blok (“Blok”). Appellants retained Armando Correa,
M.D. (“Dr. Correa”), an assistant professor in the Department of Pediatrics at
Baylor College of Medicine in Texas Children’s Hospital, to testify regarding the
standard of care and causation.
On May 22, 2018, the jury returned a verdict in favor of appellees,
answering question 1 “Yes” as to whether the negligence of Dr. Salguero, M.D.
and Robinson proximately caused the death of A.W., but “No” as to Kawalek. In
response to question 2, the jury assessed 75% responsibility to Dr. Salguero, 25%
to Robinson, and 0% to Kawalek. Additionally, the jury determined that Jose
7
Salguero, M.D., Robinson, and Kawalek acted as employees of PCC. The jury
reached a multi-million-dollar verdict against appellants.4
On September 25, 2018, the trial court signed a Final Judgment in favor of
appellees. The Final Judgment rendered a $1.35 million dollar judgment against
appellants.5
Appellants filed post-trial motions, including a Motion for New Trial or,
Alternatively, Motion for Remittitur, Motion for Judgment Notwithstanding the
Verdict, and Motion to Modify, Correct and/or Reform the final judgment, all of
which were denied. This appeal timely followed.
II. ANALYSIS
Appellants raise six issues on appeal.
• Whether the jury’s answers to question no. 1 finding causation are supported
by legally and factually sufficient evidence.
• Whether the jury’s answer to question no. 1 finding Dr. Salguero negligent
is supported by legally and factually sufficient evidence.
• Whether the jury’s answers to question no. 2 are supported by legally and
factually sufficient evidence.
4
The jury awarded Thompson $10,000.00 for past pecuniary loss, $500,000.00 for future
pecuniary loss, $100,000.00 for past loss of companionship and society, $1,000,000.00 for future
loss of companionship and society, $100,000.00 for past mental anguish and $1,000,000.00 for
future mental anguish. The jury awarded Washington $25,000.00 for past pecuniary loss,
$500,000.00 for future pecuniary loss, $200,000.00 for past loss of companionship and society,
$2,000,000.00 for future loss of companionship and society, $200,000.00 for past mental anguish
and $2,000,000.00 for future mental anguish. In total, the jury awarded damages of
$7,635,000.00 in favor of appellees against appellants.
5
The trial court awarded Thompson a total of $593,333.33 in actual damages, and
prejudgment interest in the amount of $21,364.38, and awarded Washington a total of
$691,666.67 in actual damages, and prejudgment interest in the amount of $43,873.29. The
judgment also provided for an award of court costs, and post-judgment interest at the annual rate
of five percent (5%), compounded annually, from September 25, 2018, until paid in full.
8
• Whether the trial court abused its discretion by admitting Dr. Moss’s
opinions and pre-March 2012 evidence of negligence.
• Whether the jury’s answers to question no. 4 are supported by legally and
factually sufficient evidence.
• Whether the trial court’s judgment correctly calculated prejudgment interest.
A. SUFFICIENCY OF THE EVIDENCE
In their first, second, third and fifth issues, appellants challenge the legal and
factual sufficiency of the evidence.
1. STANDARD OF REVIEW
We consider the legal-sufficiency challenge first. See Windrum v. Kareh,
581 S.W.3d 761, 777–79 (Tex. 2019). When reviewing the legal sufficiency of the
evidence, we consider the evidence in the light most favorable to the challenged
finding and indulge every reasonable inference that would supports it. City of
Keller v. Wilson, 168 S.W.3d 802, 821–22, 827 (Tex. 2005); see also Graham
Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). The
evidence is legally sufficient if it would enable a reasonable and fair-minded
person to reach the verdict under review. Wilson, 168 S.W.3d at 827. “If the
evidence at trial would enable reasonable and fair-minded people to differ in their
conclusions, then jurors must be allowed to do so.” Id. at 822. “A reviewing court
cannot substitute its judgment for that of the trier-of-fact, so long as the evidence
falls within this zone of reasonable disagreement.” Id. There is “no evidence” or
legally insufficient evidence when (a) there is a complete absence of evidence of a
vital fact; (b) the court is barred by rules of law or evidence from giving weight to
the only evidence offered to prove a vital fact; (c) the evidence offered to prove a
vital fact is no more than a mere scintilla; or (d) the evidence conclusively
establishes the opposite of the vital fact. See id. at 810. “Ordinarily, a court of
appeals will not address the factual sufficiency of the evidence if it determines the
9
evidence is legally insufficient.” Windrum, 581 S.W.3d at 781; see generally
Wilson, 168 S.W.3d at 810 (distinguishing between the legal and factual
sufficiency standards, explaining that legal sufficiency review generally disregards
contrary evidence and factual sufficiency review weighs all evidence).
When reviewing a challenge to the factual sufficiency of the evidence,
however, we examine the entire record, considering both the evidence in favor of,
and contrary to, the challenged finding. See Maritime Overseas Corp. v. Ellis, 971
S.W.2d 402, 406–07 (Tex. 1998). After considering and weighing all the
evidence, we set aside a verdict only if the evidence is so weak or the finding is so
against the great weight and preponderance of the evidence that it is clearly wrong
and manifestly unjust. See id.; Del Lago Partners, Inc. v. Smith, 206 S.W.3d 146,
160 (Tex. App.—Waco 2006), aff’d, 307 S.W.3d 762 (Tex. 2010). “We may not
substitute our own judgment for that of the factfinder, even if we would reach a
different answer.” Gunn v. McCoy, 489 S.W.3d 75, 84 (Tex. App.—Houston [14th
Dist.] 2016), aff’d, 554 S.W.3d 645 (Tex. 2018). “The amount of evidence
necessary to affirm the factfinder’s judgment is far less than that necessary to
reverse its judgment.” Id.We apply these standards mindful that this court is not a fact finder. Ellis,
971 S.W.2d at 407. The trier of fact is the sole judge of the witnesses’ credibility
and the weight afforded their testimony. See Wilson, 168 S.W.3d at 819.
2. JURY’S ANSWERS TO QUESTION NO. 1 FINDING CAUSATION ARE
SUPPORTED BY SUFFICIENT EVIDENCE
In their first issue, appellants argue that the jury’s answers to Question No. 1
(subparts 1 and 2) that Dr. Salguero, M.D.’s and Robinson’s negligence
10
proximately caused the death of A.W. are not supported by legally or factually
sufficient evidence.6
a. GOVERNING LAW
In a medical malpractice case, the plaintiff is required to show evidence of a
reasonable medical probability that the injury was proximately caused by the
defendant’s negligence. Jelinek v. Casas, 328 S.W.3d 526, 532–33 (Tex. 2010)
(citing Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex. 1993));
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 860 (Tex.
2009). The plaintiff must prove the existence of a legal duty, breach of that duty,
and damages proximately caused by the breach. Bustamante v. Ponte, 529 S.W.3d
447, 456 (Tex. 2017) (citing IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.
Mason, 143 S.W.3d 794, 798 (Tex. 2004)); Gharda USA, Inc. v. Control Sols.,
Inc., 464 S.W.3d 338, 352 (Tex. 2015); Rodriguez-Escobar v. Goss, 392 S.W.3d
109, 113 (Tex. 2013).
The components of proximate cause are (1) cause-in-fact and (2)
foreseeability. Windrum, 581 S.W.3d at 777–79; Univ. of Tex. M.D. Anderson
Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 518 (Tex. 2019). “A defendant’s
action is the cause in fact of damages if it was a substantial factor in causing the
injury and without which the injury would not have occurred.” Anderson v.
Durant, 550 S.W.3d 605, 618 (Tex. 2018) (internal quotations omitted); see
Windrum, 581 S.W.3d at 778–79. Whether a particular act of negligence is a
cause-in-fact of an injury is a particularly apt question for jury determination.
Farley v. MM Cattle Co., 529 S.W.2d 751, 756 (Tex. 1975).
6
Robinson does not dispute the duty and breach elements of appellees’ cause of action.
Dr. Salguero challenges the jury’s finding that he was negligent in issue two.
11
Foreseeability exists when “the actor should have reasonably anticipated the
dangers that his negligent conduct creates for others.” McKenzie, 578 S.W.3d at
519. It “does not require that a person anticipate the precise manner in which
injury will occur once he has created a dangerous situation through his
negligence.” Id. (quoting Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.
1992)). Instead, foreseeability requires only that the general danger, not the exact
sequence of events that produced the harm, be foreseeable. Walker v. Harris, 924
S.W.2d 375, 377 (Tex. 1996); see Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d
778, 785 (Tex. 2001) (determining whether the wrongful act “was ‘a’ proximate
cause, not ‘the’ proximate cause” of decedent’s death). Thus, the question of
foreseeability involves a practical inquiry based upon “common experience applied
to human conduct.” City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987)
(internal citation omitted).
A plaintiff is neither required to establish causation in terms of medical
certainty nor is the plaintiff required to exclude every other possible hypothesis.
See Kramer, 858 S.W.2d at 405. The plaintiff is required to prove only that it is
“more likely than not” that the injury was caused by the negligence of one or more
defendants. See id. The jury has broad latitude to infer proximate cause from the
evidence and the circumstances surrounding the injury-producing act, especially
when it is not possible to produce direct proof of proximate cause or lack of
proximate cause. J.K. & Susie Wadley Research Inst. & Blood Bank v. Beeson,
835 S.W.2d 689, 698 (Tex. App.—Dallas 1992, writ denied) (citation omitted).
Both the breach of the standard of care and proximate cause must be
established through expert testimony. See Jelinek, 328 S.W.3d at 533.
12
i. APPELLEES’ EVIDENCE
Dr. Lessin (standard of care)
At trial, Dr. Lessin testified as to the standards of care for the healthcare
providers at PCC and testified regarding their deviation from such standards. Dr.
Lessin testified that on March 1, 2012, Robinson breached the standard of care in
several ways, including by: attempting to treat A.W. on her own without
consulting Dr. Salguero; failing to interview A.W. more extensively and outside of
the presence of Thompson; failing to use standard pediatric questionnaires for
assessment of depression in adolescents; prescribing Celexa without conducting a
sufficient interview to justify use of the medication; failing to elicit a promise from
A.W. that she will tell someone if she feels like hurting herself; and providing
A.W. with a thirty-day prescription for Celexa with three refills without requiring
her return for an evaluation within seven days. Dr. Lessin further testified that in
regard to that same visit, the medical assistant fell below the standard of care by
altering the diagnosis dictated by Robinson from depression to depression not
otherwise specified and by altering the prescription from a 30-day supply to a 30-
day supply with three refills. Additionally, Robinson’s treatment fell below the
standard of care because she failed to review the medical records after the records
were transcribed. Dr. Lessin also testified that the medical assistants breached the
standard of care by altering A.W.’s April office visit record by adding “[p]atient to
come back in 30 days for follow up.”
Additionally, with regard to the July 31, 2012, telephone request for a refill
of the Celexa prescription, Dr. Lessin testified that Aguillon breached the standard
of care by issuing a prescription she was not authorized to make, by failing to seek
and obtain Dr. Salguero’s approval before issuing a refill, and by failing to require
A.W. to return to PCC for evaluation prior to obtaining a refill.
13
The evidence pertaining to Dr. Salguero’s breach of the standard of care is
discussed below in connection with appellants’ issue two.
Dr. Moss (causation)
Dr. Moss adopted Dr. Lessin’s standard of care opinions and relied on them
in formulating his causation options. Dr. Moss testified regarding the multiple
failures of appellants in treating A.W. Dr. Moss testified that, based upon a
reasonable medical probability, more likely than not, the actions and omissions of
Dr. Salguero and Robinson on March 1, 2012, April 17, 2012, and on July 31,
2012, in combination, proximately caused A.W.’s suicide.7
Dr. Moss explained that Robinson’s failure to conduct an appropriate
interview of A.W. about the cause of her depression was just the first of three
opportunities PCC had to adequately address A.W.’s depression. Had a proper
interview been conducted, additional treatment options should have been employed
which would have, more likely than not, prevented A.W. from committing suicide.
Further, the lack of proper follow-up after the initial diagnosis of depression in
seven days and frequently thereafter, essentially left A.W. without medical
supervision after March 1, 2012. Realizing the error, Aguillon altered A.W.’s
medical records to state that Thompson was instructed to bring A.W. in for a
follow up within thirty days—something that was added to A.W.’s medical record
after this lawsuit was filed. Finally, Dr. Moss testified that there was absolutely no
excuse for a mental health care provider to provide a refill of Celexa for 120 days
without requiring A.W. to return to PCC for an evaluation of her depression.
7
In his overall opinions regarding causation, Dr. Moss also opined that Kawalek’s
actions or omissions, along with Dr. Salguero’s and Robinson’s, were a proximate cause of
A.W.’s suicide. Because it answered “no” as to Kawalek in question number 1, the jury
necessarily found, however, that either Kawalek was not negligent or that her negligence was not
a proximate cause of A.W.’s suicide, or both.
14
On cross-examination, Dr. Moss explained:
My testimony is about that we didn’t get any of the information
necessary upon getting a chief complaint of depression for five
months and we have a dead 14 year old here. And we have a dead 14
year old because nothing was done except throwing a pill at her and
saying good-bye. That’s my testimony.
There were many questionnaires and many pathways that were not
pursued, and I say, in my professional opinion for 39 years or 30 years
of experience, that had they been pursued, more likely than not
[A.W.] would not have committed suicide on August 14th, 2012,
though I can’t guarantee that.
Dr. Moss testified that there was no one thing that Dr. Salguero or Robinson did
that caused A.W.’s suicide; instead, Dr. Moss testified that it was a cluster of a
cumulative number of things. He further testified that had Dr. Salguero and
Robinson done what they should have for treatment of A.W. that it was “more
likely than not [A.W.] would not have committed suicide, but she certainly could
have.”
When asked if it would be speculation to opine on what could have been
done differently since he did not know why A.W. committed suicide, Dr. Moss
testified:
Psychiatry is predicated really on getting answers to questions that I
outlined early so that we can get optimal outcomes and optimize the
welfare of our patients. In this case, [A.W.] was not given an
opportunity to get that kind of care and I have no idea what August
13th would have looked like or August 14th would have looked like
because nobody was with [A.W.] prior to her committing suicide at
all.
No professionals had been monitoring her either medically or
psychiatrically or in a mental health version. There had been no
schoolmates. There had been no medical support. There had been no
contract with [A.W.] specifically for several months. There had
virtually been no contact with [A.W.’s] parents for several months.
15
There had been medications given to her that had black box warnings.
There had been many different things that were missed that could
have been done. And there’s no way I can know today what that
would have led to had I had any bit of that information prior to August
14th. So that doesn’t look like speculation to me.
Dr. Moss testified that he based his opinion in this case on his education, training,
and experience.
ii. APPELLANT’S EVIDENCE
Dr. Correa (standard of care and causation)
Dr. Correa, appellants’ testifying expert, testified that Dr. Salguero,
Robinson, and Kawalek were not negligent in their treatment of A.W. He further
testified that the proximate cause of A.W. taking her life was “an impulsive,
unpreventable act that she, herself, did and that the care that was provided by the
three defendants [had] no bearing in this act.” He stated that his opinions were
based on a reasonable degree of medical probability based on his education,
training, and experience.
Under cross-examination, Dr. Correa acknowledged many shortfalls by Dr.
Salguero, Robinson, and PCC in the treatment of A.W. Dr. Correa admitted that
screening an adolescent for depression should take place outside the presence of
the parent. When conducting the private interview, Dr. Correa also admitted that a
clinician should ask the patient if she has had suicidal thoughts. Dr. Correa agreed
with Dr. Salguero’s testimony that A.W. was displaying symptoms of depression
prior to March 1, 2012, which were red flags. Dr. Correa further admitted that Dr.
Salguero was responsible for the physician assistant, nurse practitioner, and
medical assistants, and that Aguillon should not have altered A.W.’s medical
records after learning of A.W’s suicide and further, that such changes were a
violation of Texas law.
16
Additionally, Dr. Correa teaches physician assistants and family nurse
practitioners to review their medical records and to sign off on them and close
them so that they cannot be altered. Dr. Correa admitted that the clinic fell below
the standard of care when Aguillon issued a refill for A.W.’s prescription for
Celexa without first requiring her to come in for a follow-up examination. Dr.
Correa admitted that PCC fell below the standard of care by not requiring the
clinicians to review their medical records for accuracy and that Dr. Salguero, as the
supervising physician, fell below the standard of care by failing to review the
medical records of the healthcare providers under his supervision. The failure to
have A.W. return for an examination prior to issuing a refill for the Celexa was a
breach of the standard of care. Finally, Dr. Correa admitted that if a patient with
moderate to severe depression is not properly treated, it is foreseeable that the
patient may commit suicide.
b. APPLICATION
Appellants argue there is legally and factually insufficient evidence of
causation. Appellants attempt to show insufficiency by analyzing proximate cause
by isolating each visit of A.W. to PCC. We apply the substantial factor test. See
Bustamante, 529 S.W.3d at 457 (rejecting the application of stringent “but-for”
causation requirement and applying substantial-factor test). “It has long been the
law in this state that a defendant’s act or omission need not be the sole cause of an
injury, as long as it is a substantial factor in bringing about the injury.” Id. “There
may be more than one proximate cause of an injury.” Id.
Appellants argue that A.W.’s suicide is too attenuated from appellants’
negligence to constitute evidence of proximate cause. See Rodriguez-Escobar v.
Goss, 392 S.W.3d 109, 113 (Tex. 2013) (concluding no evidence that Goss’s
involuntarily hospitalization by defendant probably would have prevented her
17
suicide); Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 328 (Tex. 2008)
(holding that “the defendants’ negligence was too attenuated from the suicide to
have been a substantial factor in bringing it about”). Here, relying on Dr. Lessin’s
testimony of substandard care of A.W., which a reasonable jury could have
believed, Dr. Moss’s opinion was that appellants’ individual acts of negligence
were all substantial factors in A.W.’s death. Dr. Moss testified that the combined
negligence of appellants in diagnosing, educating, treating, and monitoring (or
failing to monitor) A.W. was a proximate cause of her suicide; and if appellants
had complied with the standard of care, she would, in reasonable probability, still
be alive. Dr. Moss testified that appellants collectively mismanaged A.W.’s
diagnosis and treatment of her depression and that these acts and omissions, taken
together, were a proximate cause of A.W.’s death.
Next, appellants assert that A.W.’s suicide was not foreseeable, thereby
depriving appellees of causation. In support of their contention, appellants note
Thompson acknowledged that A.W. had improved after beginning Celexa on
March 1, 2012, and that A.W. seemed happy the night before her suicide.
However, foreseeability does not require that a person anticipate the precise
manner in which injury will occur once he has created a dangerous situation
through his negligence. McKenzie, 578 S.W.3d at 519 (internal citations omitted).
“It requires only that the general danger, not the exact sequence of events that
produced the harm, be foreseeable.” Id. In this case, all of the experts agreed that
failure to properly treat depression in an adolescent patient like A.W. can
foreseeably lead to suicide. Dr. Moss testified that A.W.’s suicide was foreseeable
and with proper treatment, more than likely would not have occurred.8 Contrary to
appellants’ contention, there is evidence of causation.
8
As a subset of their first issue, appellants maintain that the causation opinions of Dr.
18
After hearing the testimony of both parties’ expert witnesses and reviewing
the trial exhibits, including A.W.’s medical record (both altered and unaltered
exhibits), the jury determined that appellants’ actions or omissions were a
substantial factor in causing A.W.’s death. See Farley, 529 S.W.2d at 756. In
considering the evidence in the light most favorable to the jury’s verdict and
crediting favorable evidence if a reasonable factfinder could and disregarding
contrary evidence unless a reasonable factfinder could not, we conclude that
legally sufficient evidence supports the jury’s proximate cause findings against Dr.
Salguero and Robinson.
In challenging factual sufficiency, appellants fail to apply the substantial
factor test and review each visit of A.W. in isolation, arguing that the evidence was
“too weak” to support the jury’s finding of negligence. See Bustamante, 529
S.W.3d at 457. Applying the proper causation test, Dr. Lessin testified as to
appellants failure to treat A.W.’s depression in accordance with the standard of
care on March 1, 2012, and thereafter. Dr. Moss, relying on this testimony,
testified that the multiple failures of appellants in treating A.W.’s depression, in
combination, proximately caused A.W.’s suicide. Dr. Moss testified to
opportunities appellants had available that could have treated A.W.’s depression
that he believes, based on a reasonable medical probability, would have prevented
her suicide.
Dr. Moss supported his opinion with examples–e.g., had a proper interview
been conducted on March 1, 2012, additional treatment options should have been
employed which would have, more likely than not, prevented A.W. from
Moss should be rejected because the testimony is speculative, conclusory, and unreliable.
Similarly, appellants allege in their fourth issue that the trial court erroneously admitted
testimony from Dr. Moss that was unreliable, speculative, and conclusory, likely leading to the
rendition of an improper judgment. Appellants’ contentions regarding the admissibility of Dr.
Moss’s expert testimony is analyzed under appellants’ fourth issue.
19
committing suicide. Dr. Moss explained the treatment options available to A.W.
would be based on answers to questions that were not asked in A.W.’s case. If
questions had been asked and answered, they would have created pathways
towards treatment options that would be made available and would have prevented
her from committing suicide. Some of the options Dr. Moss testified would likely
be made available, even on a broad scale, included psychotherapy or counseling.
Additionally, Dr. Moss testified that other options, including designing a network
of support in the community in the form of counselors, coaches, teachers, friends,
neighbors, or family members can go far to reduce psychiatric symptomology. He
further discussed other types of treatment plans, including nutritional counseling or
even group therapy, that might have been helpful. Moreover, he testified that there
are ways to manage psychiatric uncomfortable symptomology through creative
arts, music, sports, clubs, peer groups, mentoring, physical activity, meditation, or
even creating a confidential advocate or even an emergency telephone contact. Dr.
Moss went on to discuss the lack of proper follow-up treatment, including not
requiring any follow-up appointments while continuing to fill and refill a Blackbox
prescription, essentially leaving A.W. without medical supervision after March 1,
2012.
Dr. Correa testified that appellants were not negligent and were not the
proximate cause of A.W. taking her life. Dr. Correa further testified that based on
a reasonable degree of medical probability the cause of A.W.’s suicide was “an
impulsive, unpreventable act that she, herself, did and that the care that was
provided by [appellants] have no bearing in this act.”
Here, the evidence, and the inferences the jury could derive from the
evidence, are factually sufficient to support the jury’s findings on causation.
Further, the evidence does not demonstrate that the jury’s determination of
20
causation was clearly wrong or unjust, but rather it was a decision based upon the
competing evidence. See Wilson, 168 S.W.3d at 826.
We conclude there is legally and factually sufficient evidence to support the
jury’s answers to Question No. 1. Appellants’ first issue is overruled.
3. JURY’S ANSWERS TO QUESTION NO. 1 FINDING DR. SALGUERO
NEGLIGENT IS SUPPORTED BY SUFFICIENT EVIDENCE
In their second issue, appellants argue that we should reverse the judgment
as to Dr. Salguero and render judgment because the evidence is legally insufficient
to support the jury's answer to Question No. 1, subpart 1, regarding the negligence
of Dr. Salguero. Appellants contend that there is no evidence that Dr. Salguero
was negligent in any way and that his liability is merely vicarious. Appellants
assert that Dr. Salguero did not see A.W. on March 1, or April 17, 2012, and Dr.
Salguero did not speak with A.W.’s mother on July 31, 2012; thus, appellants
argue there is no conduct of Dr. Salguero constituting negligence. Alternatively,
Dr. Salguero challenges the factual insufficiency of the evidence to support the
jury’s negligence finding against him.
Appellees, however, alleged that Dr. Salguero was negligent in failing
to oversee and monitor his physician assistants, medical assistants, and nurse
practitioners in the treatment of A.W. Dr. Salguero admitted that he is responsible
for the acts of those in his employ and that he is responsible for making sure they
treat patients appropriately. As set forth above, after Robinson dictated her
medical record and diagnosed A.W. with depression and ordered a prescription of
Celexa for thirty days, the medical assistants at PCC changed the record. The
records reflect that the medical assistants changed A.W.’s diagnosis from
depression to depression, not otherwise specified and sent in a prescription that
exceeded Robinson’s authority to prescribe the medication. Additionally,
21
Robinson did not prescribe any refills of Celexa but the medical assistant sent the
pharmacy the 30-day prescription plus three refills. Dr. Lessin testified that Dr.
Salguero’s lack of appropriate supervision was below the standard of care.
Moreover, appellants’ own expert, Dr. Correa, admitted that Dr. Salguero
fell below the standard of care by not requiring the clinicians to review their
medical records for accuracy and the failure of Dr. Salguero to review the medical
records of the healthcare providers is negligence. This would include the failure of
the clinicians to have A.W. return for an examination prior to issuing a refill for the
Celexa, which both Dr. Correa and Dr. Lessin testified was a breach of the
standard of care.
This evidence is legally sufficient to support the jury’s negligence finding
against Dr. Salguero.
In challenging factual sufficiency, appellants contend the overwhelming
weight of the evidence showed that Dr. Salguero was not negligent. They argue
“any alleged breach regarding the electronic medical record is no basis to support
Dr. Salguero’s liability or any percentage of responsibility.” They further assert
that none of A.W.’s office visits prior to March 1, 2012 had any causal connection
to A.W.’s suicide and Dr. Salguero did not treat A.W. or speak to Thompson any
time thereafter. Thus, appellants maintain there is “no conduct of Dr. Salguero
constituting negligence.”
Dr. Salguero admitted that he is responsible for the acts of those in his
employ and that he is responsible for making sure they treat patients appropriately.
He testified that he is supposed to review the family nurse practitioners in their
treatment of patients. He further acknowledged that he is responsible for making
sure that nurse practitioners are making the right decisions on behalf of the
children. Additionally, he conceded that he is responsible for making sure they
22
prescribe the correct medication for the children they are treating in his office. He
also testified that he is responsible for diagnosis of the children that are treated at
PCC. He testified that he is required to review the work of the nurse practitioners.
Dr. Salguero admitted that he is responsible for making sure that his physician
assistant and nurse practitioner give the type of quality care that the children who
visit the clinic come in for. Dr. Salguero acknowledged that he did not meet with
the nurse practitioner and review A.W.’s chart.
We conclude that the evidence does not demonstrate that the jury’s
negligence finding against Dr. Salguero was clearly wrong or unjust, but rather it
was a decision based upon the competing evidence. See Wilson, 168 S.W.3d at
826.
We conclude there is legally and factually sufficient evidence to support the
jury’s answers to Question No. 1. Appellants’ second issue is overruled.
4. JURY’S ANSWERS TO QUESTION NO. 2 FINDING PERCENTAGES OF
RESPONSIBILITY ARE SUPPORTED BY SUFFICIENT EVIDENCE
In their third issue, appellants maintain we should reverse and render
judgment or remand because the evidence is legally and factually insufficient to
support the jury’s answers to Question No. 2 (subparts 1 and 2) regarding the
percentages of responsibility assessed against Dr. Salguero and Robinson.
Appellants incorporate their previous discussion of the evidence and
argument set forth in issues one and two. Appellants maintain “[f]or those same
reasons, the evidence is legally and factually insufficient to support the jury’s
answers to Question No. 2 (subparts 1 and 2) that Dr. Salguero and Robinson
caused or contributed to cause in any way A.W.’s death.”
As addressed, supra, in our analyses of issues one and two, there is legally
and factually sufficient evidence to support the jury’s answers to Question No. 2.
23
Moreover, the determination of negligent parties’ proportionate responsibility is a
matter soundly within the jury’s discretion; it is not the place of this court to
substitute its judgment for that of the jury. See Hagins v. E-Z Mart Stores, Inc.,
128 S.W.3d 383, 392 (Tex. App.—Texarkana 2004, no pet.).
Appellants’ third issue is overruled.
5. JURY’S ANSWERS TO QUESTION NO. 4 FINDING PECUNIARY LOSS
DAMAGES ARE SUPPORTED BY SUFFICIENT EVIDENCE
In their fifth issue, appellants argue that there is not legally and factually
sufficient evidence to support the jury’s awards for past or future pecuniary loss
damages in Question No. 4.
a. LAW GOVERNING PECUNIARY LOSS
Pecuniary loss is defined as the care, maintenance, support, services, advice,
counsel, and reasonable contributions of a pecuniary value that the parents would,
in reasonable probability, have received from their child had the child lived.
Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex. 1986). Thus, “[p]ecuniary loss in a
wrongful-death case is not subject to precise mathematical calculation, and the jury
is given significant discretion in determining this element of damages.” Christus
Health v. Dorriety, 345 S.W.3d 104, 113 (Tex. App.—Houston [14th Dist.] 2011,
pet. denied).
Pecuniary losses may be recovered even in the absence of specific evidence
of the amount of contributions being made by the deceased before her death or that
she would have continued to contribute in the future. See John Deere Co. v. May,
773 S.W.2d 369, 381 (Tex. App. —Waco 1989, writ denied). The Waco Court of
Appeals has observed that measuring a beneficiary’s pecuniary loss is inherently
speculative and imprecise and is therefore best left to the jury's common sense and
sound discretion. Id. at 379–80. While the amount of damages awarded must be
24
supported by evidence, jurors may apply their knowledge and experience to
estimate the value of services, such as household services, without proof of their
value. See Dorriety, 345 S.W.3d at 113; see also Excel Corp. v. McDonald, 223
S.W.3d 506, 510 (Tex. App.—Amarillo 2006, pet. denied). Noting the difficulties
in proving, measuring, and challenging the jury award of pecuniary loss, courts
have concluded that ‘[t]he judgment of the jury is as good as that of the court, and
it should prevail unless it appears that the verdict is influenced by passion or
prejudice and is not the result of honest convictions.’” Samco Properties, Inc. v.
Cheatham, 977 S.W.2d 469, 480 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied) (quoting Louisiana & A. Ry. Co. v. Chapin, 225 S.W.2d 614, 616 (Tex.
Civ. App.—Texarkana 1949, writ ref’d).
b. APPLICATION
In this case, the jury awarded Thompson $10,000 and $500,000 in past and
future pecuniary losses, respectively, and awarded Washington $25,000 and
$500,000 in past and future pecuniary losses, respectively. Appellants contend that
the evidence is legally and factually insufficient to support these awards.
Appellants argue that “the jury heard only vague and general testimony about the
alleged pecuniary contributions A.W. made or would have made to Thompson and
Washington.” Appellants further maintain that appellees’ expert’s testimony on
such economic losses was generic and the jury had to speculate on any pecuniary
losses.
In relation to pecuniary damages, the jury heard testimony that A.W.
assisted with the care of her younger half-brother. A.W. “wanted to be a baby
doctor. She loved children.” Additionally, the jury heard testimony that A.W.
planned to take care of her parents as they grew older and help them in any way
needed.
25
An economist, Justin Blok (“Blok”) testified on behalf of appellees
regarding the pecuniary losses suffered by appellees. Blok was retained to provide
a range of appellees’ pecuniary losses resulting from A.W.’s death. Blok provided
testimony concerning three scenarios: (1) A.W. as a high school graduate only;
(2) A.W. as a college graduate; and (3) A.W. as an obstetrician/gynecologist using
Bureau of Labor Statistics information to calculate A.W.’s potential lost earnings
under the three scenarios. For each scenario he used an estimate of 15 hrs/week at
$9/hr for household services and projected a life expectancy of 81 years. He used
an expected work life of 33 years. He testified that the discounted, present value of
economic loss was $1.7 million (scenario 1), $2 million (scenario 2), and $4.3
million (scenario 3). Blok’s calculations were significantly higher than what the
ultimately the jury awarded appellees.
The foregoing evidence is legally and factually sufficient to support the
jury’s answers. As set forth above, the jury heard testimony from both parents as
well as an economist. Although appellants point out several alleged shortcomings
in Blok’s testimony—such as an absence of testimony on A.W.’s likely life
trajectory, when Washington might require future pecuniary help, how A.W. might
allocate her money in the future, or the specific amounts of A.W.’s economic
contributions—the jury weighed all the evidence and arrived at a number within
the range Blok offered. In determining pecuniary loss, a jury is entitled to use their
own knowledge and experience in reaching their verdict. See Dorriety, 345
S.W.3d at 113. Blok’s testimony gave the jury additional evidence beyond their
own experiences. On this record, therefore, we conclude that sufficient evidence
supports the jury’s award of pecuniary damages to Thompson and Washington.
See May, 773 S.W.2d at 379–81.
Appellant’s fifth issue is overruled.
26
c. REMITTITUR
In the alternative, appellants argue that we should suggest a remittitur
because the awards for pecuniary losses are not supported by factually sufficient
evidence and are excessive. Because we have concluded that the jury’s findings on
pecuniary loss are supported by sufficient evidence, we need not address appellants
alternative argument for remittitur.
B. ADMISSIBILITY OF EVIDENCE
In their fourth issue,9 appellants assert that the trial court abused its
discretion in admitting Dr. Moss’s expert testimony on causation, arguing that Dr.
Moss’s testimony is unreliable, speculative, and conclusory. Additionally,
Appellants argue that the trial court abused its discretion in admitting testimony
and evidence regarding alleged pre-March 1, 2012 negligence.
1. ADMISSIBILITY OF EXPERT TESTIMONY
a. STANDARD OF REVIEW
We review a trial court’s rulings admitting expert testimony, including
rulings on the reliability of expert testimony, for an abuse of discretion. Gharda
USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347–48 (Tex. 2015); Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006); Cooper Tire & Rubber
Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006); In re J.R., 501 S.W.3d 738, 748
(Tex. App.—Waco 2016, no pet.).
Under this standard, the trial court has broad discretion in deciding whether
to admit or exclude expert’s testimony. Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713, 726 (Tex. 1998). We reverse only if the trial court acted
9
As noted, supra, appellants make this argument in issue 1(e), as well. We address
appellants’ contentions regarding the admissibility of Dr. Moss’s testimony here.
27
arbitrarily, unreasonably, or without reference to any guiding rules or principles.
Mendez, 204 S.W.3d at 800; In re J.R., 501 S.W.3d at 748.
b. APPLICABLE LAW
“If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. A two-part test
governs whether expert testimony is admissible: (1) the expert must be qualified;
and (2) the testimony must be relevant and be based on a reliable foundation.
Mendez, 204 S.W.3d at 800; Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499
(Tex. 2001); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556
(Tex. 1995). In evidentiary matters, a trial court is a gatekeeper, ensuring expert
testimony is relevant and based on a reliable foundation. See In re J.R., 501
S.W.3d at 748.
In deciding if an expert is qualified, trial courts must ensure that those who
purport to be experts truly have expertise concerning the actual subject about
which they are offering an opinion. Mendez, 204 S.W.3d at 800. The Supreme
Court identified in Robinson six factors that trial courts may consider in
determining whether expert testimony is reliable and thus admissible. Mendez, 204
S.W.3d at 801 (citing Robinson, 923 S.W.2d at 557). However, it emphasized in
Robinson that “these factors are non-exclusive and that Rule 702 contemplates a
flexible inquiry.” Id.
Indeed, in Gammill, the Supreme Court recognized that the Robinson factors
may not apply to certain testimony.10 See 972 S.W.2d at 720, 726 (recognizing
10
Appellees advocate that we evaluate the reliability of psychiatric expert testimony or
“soft” science testimony based upon the Court of Criminal Appeals’ Nenno factors, rather than
28
that Robinson factors did not apply to the mechanical engineer expert under
consideration even though his claimed expertise was scientific in nature).
Experience alone may provide a sufficient basis for an expert’s testimony in some
cases. Id. at 726; Cady v. Cargile, No. 10-13-00026-CV, 2015 WL 2058965, at *2
(Tex. App. —Waco Apr. 30, 2015, no pet.) (finding Robinson factors do not
readily lend themselves to a review of psychiatrist’s opinion).
The Supreme Court recognized that “the criteria used to evaluate the
reliability of expert testimony depends on the nature of the evidence.” Tamez, 206
S.W.3d at 579 (citing Gammill, 972 S.W.2d at 726). “In determining reliability,
the trial court should undertake a rigorous examination of the facts on which the
expert relies, the method by which the expert draws an opinion from those facts,
and how the expert applies the facts and methods to the case at hand.” Id. (citation
omitted). “A significant part of the trial court’s gatekeeper function is to evaluate
the expert’s qualifications, listen to the testimony, view the evidence, and
determine which factors and evaluation methodology are most appropriate to
apply.” Id.
the Robinson factors.” See Nenno v. State, 970 S.W.2d 549, 560 (Tex. Crim. App. 1998),
overruled in part on other grounds, State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999)
(noting that when measuring the reliability of an expert’s opinion in fields within the soft
sciences, we consider whether: “(1) the field of expertise is a legitimate one; (2) the subject
matter of the expert's testimony is within the scope of that field; and (3) the expert’s testimony
properly relies upon the principles involved in that field of study”); see also In re J.R., 501
S.W.3d at 748 (employing Nenno factors in parental termination case to psychologist’s
testimony); see also In re A.J.L., 136 S.W.3d 293, 297–301 (Tex. App.—Fort Worth 2004, no
pet.) (applying soft science factors in parental termination case to counselor’s testimony); In re
G.B., No. 07–01–0210–CV, 2003 WL 22327191, at *2 (Tex. App.—Amarillo Oct. 10, 2003, no
pet.) (mem. op.) (same). In light of the Supreme Court’s recognition that the Robinson factors
may not apply to certain testimony, we decline to adopt a new test to evaluate the reliability of
the psychiatric testimony in this case. See Gammill, 972 S.W.2d at 720, 726.
29
2. DR. MOSS’S TESTIMONY
Appellants first challenge the reliability of Dr. Moss’s testimony as a
whole.11 Appellants argue that the trial court abused its discretion in admitting Dr.
Moss’s testimony because there is an “absence of evidence tying any of the alleged
negligence to A.W.’s suicide and there is no legally or factually sufficient evidence
of proximate cause because Appellees’ causation evidence [which is based on Dr.
Moss’s testimony] is speculative, conclusory, and unreliable.” Appellants
maintain that Dr. Moss could not specifically state what appellants could have
done differently to prevent A.W.’s suicide, and his testimony was not grounded in
science or fact. Appellants contend that Dr. Moss’s opinions are “nothing more
than the ipse dixit of a retained expert.” We disagree.
“[A]n expert’s statement or opinion is conclusory when . . . he offers only
his word that the bases offered to support his opinion actually exist or support his
opinion.” Windrum, 581 S.W.3d at 769. Bare or baseless opinions cannot support
a judgment, even if there was no objection over their admission into evidence. See
City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009). An “expert
must explain the basis of his statements to link his conclusions to the facts.” Earle
v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999); see also Jelinek, 328 S.W.3d at 536.
An expert’s statement or opinion is conclusory when: (1) he asks the fact finder to
take his word that his opinion is correct but offers no basis for his opinion or the
bases offered do not actually support the opinion; or (2) he offers only his word
that the bases offered to support his opinion actually exist or support his opinion.
See id. The line determining whether an expert opinion is conclusory is difficult to
draw, and “[c]lose calls must go to the trial court.” See Larson v. Downing, 197
11
Although Rule 702 of the Texas Rules of Evidence requires a finding that the witness
is qualified to testify, appellants do not challenge Dr. Moss’s qualifications; thus, we do not
review that finding in this appeal.
30
S.W.3d 303, 304 (Tex. 2006) (per curiam). When the evidence falls within the
zone of reasonable disagreement, the court may not substitute its judgment for that
of the fact finder. See Wilson, 168 S.W.3d at 822.
Dr. Moss’s opinions were largely, although not exclusively, based upon his
clinical experience and training as a psychiatrist. Appellants do not contend that
psychiatry is not a legitimate field of expertise, nor do they contend that suicide
and its causes are not within the subject matter of the field of psychiatry. Dr.
Moss’s opinions on causation in this case relied upon the principles applicable to
the field of psychiatry. Further, Dr. Moss’s opinions on causation are logically
connected to the data available to him and he explained his reasoning. Viewing
Dr. Moss’s opinion in light of the standards that apply, Dr. Moss’s opinions are
factually grounded and reliable. See Lance v. Lewisville Indep. Sch. Dist., No. 04-
11-CV-00032, 2012 WL 1668198, at *3–5 (E.D. Tex. May 11, 2012) (“A witness’
experience [relating to suicide], studies and education, combined with a review of
the relevant materials can provide a reliable basis for expert testimony.”);
Draughon v. United States, No. 14-2264-JAR-GLR, 2017 WL 3492313, at *2–6
(D. Kan. August 15, 2017) (Federal Tort Claims Act case for medical negligence
against the VA for a patient’s suicide found psychiatrists and psychologist expert
opinions admissible).
Appellants attack Dr. Moss’s testimony as unreliable because he could not
exclude that A.W. might have committed suicide even if A.W. had been
appropriately treated. Yet, as set forth above, that is not the proper standard for
evaluating causation testimony of an expert. Appellants simply disagree with Dr.
Moss’s testimony and offered the jury an alternative that the jury rejected. Dr.
Moss’s opinions are based on his experience in a legitimate field of expertise and
his testimony relies on principles that are involved in that field. See Wilkins, 47
31
S.W.3d at 499 (instructing the trial court to gauge the expert’s reliability by
ensuring “that the opinion comports with applicable professional standards outside
the courtroom”).
Additionally, in a pretrial hearing the trial court considered appellants’
contention that Dr. Moss’s opinions on causation are unreliable. The trial court
denied appellants’ challenges, subject to reurging. The trial court could reasonably
have concluded that Dr. Moss’s opinions have a reliable basis in the knowledge
and experience of the psychiatry profession. Appellants’ complaints to Dr. Moss’s
opinions are weight over admissibility challenges. It is evident from the record
that the trial court acted with reference to the appropriate guiding rules and
principles of Texas Rule of Evidence 702 and interpretive case law in determining
the qualification of appellees’ expert, Dr. Moss. “Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596.
Accordingly, the trial court did not abuse its discretion by admitting Dr.
Moss’s expert testimony. Appellants’ fourth issue is overruled.
3. PRE-MARCH 1, 2012 NEGLIGENCE
Appellants contend that the trial court abused its discretion in admitting
evidence of alleged pre-March 1, 2012 negligence, likely leading to the rendition
of an improper judgment. Appellants maintain that appellees’ experts were unable
to say that the diagnosis or alleged mismanagement of abdominal migraines or
other “red flags” were a proximate cause of A.W.’s suicide. According to
appellants, this evidence was wholly irrelevant to the key issue of liability.
Appellants further argue that, even if it were relevant, its probative value was far
32
outweighed by its prejudicial value; thus, appellants contend its admission was
harmful.
Dr. Lessin testified regarding substandard care by appellants during office
visits prior to March 1, 2012, including A.W.’s abdominal migraines and
intractable vomiting. Dr. Moss, in turn, opined that the “red flags” in the past
identified by Dr. Lessin could create an associated depressed mood. As it relates
to the “red flags” pre-March 1, 2012, Dr. Moss explained:
. . . Before March 1st they had not expressed themselves in such a
way than anyone had been alerted to the notion that they were
possible depressive equivalent symptomology. As of March 1st an
. . . astute clinician looking back at the records as, in fact, the doctor—
doctor also noted, would see that oh, oh, oh, sort of looking
backwards and seeing that those, indeed, become red flags
retroactively to today —today, March 1st, chief complaint of my
daughter has depressed mood.
Essentially, a review of A.W.’s past records on March 1, 2012, might have
revealed red flags in relation to her March 1, 2012, presentation of depression. The
trial court reasonably could have found that the testimony from Drs. Lessin and
Moss regarding “red flags” pre-March 1, 2012, was relevant as to how A.W. was
treated on March 1, at which time A.W. was prescribed Celexa.
In reaching its determination to allow Dr. Moss’s testimony regarding pre-
March 1, 2012 negligence, the trial admonished counsel as follows:
THE COURT: Let me say this, Counsel, for appellate purposes, there
has to be rock solid causation proven with facts and reliable expert
testimony. Otherwise, if there is a jury verdict in favor of plaintiffs, it
will be reversed on appeal. So we are looking at a very exacting
standard on appeal. The issue may be how we get there.
I am going to use the term “art” not in the sense of soft science, but
I’m going to use the term “art” in the sense of the calculus upon which
these opinions are derived. And as Trial Court Judge, at this juncture,
I am thinking that, perhaps for good reason the defense is viewing this
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like an engineer building a bridge with a very specific formula that the
bridge needs to be built. One, two, three, four. And, if it’s done out
of order, the bridge will collapse.
The flip side being that this is more art and science medicine that the
calculus is a little bit more fooling. So I’m going to allow plaintiffs,
since this is part art, part science, I’m going to allow them to go into
these factors which may be a little more fluid . . . .
The trial court reiterated to appellants’ counsel that “if there’s something outside
the realm of reasonableness that . . . call for an objection, we’ll excuse the jury,
make me aware of it, I’ll hear it and I may rule in your favor.”
Appellants argue that even if this evidence was relevant, its probative value
was far outweighed by its prejudicial effect and, as such, should have been
excluded. Appellants contend that the trial court erred in allowing appellees to
emphasize all of this negligence during trial despite the fact that Dr. Salguero
never saw A.W. on the March 1 and April 17 visits or participated in the July 31
phone call. This contention lacks merit. As previously addressed, Dr. Salguero is
not absolved from liability by the mere fact he did not treat A.W. personally. He
failed to train and/or monitor PCC clinicians. He conceded he was supervisor and
was responsible for the employees of PCC.
The trial court did not abuse its discretion by admitting testimony
concerning pre-March 2012 negligence.
Appellants’ fourth issue is overruled.
C. COMPUTATION OF PREJUDGMENT INTEREST
In their sixth issue, appellants maintain that the trial court improperly
computed prejudgment interest. Appellants contend that prejudgment interest
should be apportioned between past and future noneconomic damages when
computing prejudgment interest.
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1. STANDARD OF REVIEW
We review issues of statutory construction de novo. Molinet v. Kimbrell,
356 S.W.3d 407, 411 (Tex. 2011) (citing City of San Antonio v. City of Boerne,
111 S.W.3d 22, 29 (Tex. 2003)). “Our primary objective in construing statutes is
to give effect to the Legislature’s intent.” Molinet, 356 S.W.3d at 411 (citing
Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.
2009)). It is a rule of statutory construction that every word of a statute must be
presumed to have been used for a purpose, and each sentence, clause, and word is
to be given effect if reasonable and possible. See Tex. Workers’ Comp. Ins. Fund
v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000) (citing Perkins v. State, 367
S.W.2d 140, 146 (Tex. 1963)); see also Cameron v. Terrell & Garrett, Inc., 618
S.W.2d 535, 540 (Tex. 1981). Likewise, every word excluded from a statute must
also be presumed to have been excluded for a purpose. See Cameron, 618 S.W.2d
at 540. In addition, we do not view disputed portions of a statute in isolation. Del
Indus., Inc., 35 S.W.3d at 593 (citing Bridgestone/Firestone, Inc. v. Glyn–Jones,
878 S.W.2d 132, 133 (Tex. 1994)). “The plain meaning of the text is the best
expression of legislative intent unless a different meaning is apparent from the
context or the plain meaning leads to absurd or nonsensical results.” Molinet, 356
S.W.3d at 411 (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.
2008)).
2. APPLICABLE LAW
Section 74.301, “Limitation on Noneconomic Damages,” states:
In an action on a health care liability claim where final judgment is
rendered against a physician or health care provider other than a
health care institution, the limit of civil liability for noneconomic
damages of the physician or health care provider other than a health
care institution, inclusive of all persons and entities for which
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vicarious liability theories may apply, shall be limited to an amount
not to exceed $250,000 for each claimant, regardless of the number of
defendant physicians or health care providers other than a health care
institution against whom the claim is asserted or the number of
separate causes of action on which the claim is based.
Tex. Civ. Prac. & Rem. Code § 74.301(a). “Noneconomic damages” is defined in
Chapter 74 as having “the meaning assigned by Section 41.001.” Id.
§ 74.001(a)(20). Section 41.001 defines “Noneconomic damages” as
damages awarded for the purpose of compensating a claimant for
physical pain and suffering, mental or emotional pain or anguish, loss
of consortium, disfigurement, physical impairment, loss of
companionship and society, inconvenience, loss of enjoyment of life,
injury to reputation, and all other nonpecuniary losses of any kind
other than exemplary damages.
Tex. Civ. Prac. & Rem. Code § 41.001(12). Section 41.001(4) defines economic
damages as “compensatory damages intended to compensate a claimant for actual
economic or pecuniary loss; the term does not include exemplary damages or
noneconomic damages.” Id. § 41.001(4).
Looking first to the language of section 74.301 and utilizing the definitions
prescribed by the legislature in section 74.001, prejudgment interest does not fall
within the statutory definition of noneconomic damages—which are the only
damages limited by section 74.301. See Tex. Gov’t Code § 311.011(b) (requiring
that “words and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly”).
“‘Prejudgment interest is pecuniary in nature, because it does not fall within the
definition of noneconomic damages provided by the legislature in chapter 74, and
because section 74.301’s plain language limits only civil liability for noneconomic
damages, . . . prejudgment interest is not included in section 74.301’s limit on civil
liability for noneconomic damages.’” Christus Health Gulf Coast v. Houston, No.
36
01-14-00399-CV, 2015 WL 9304373, at *9 (Tex. App.—Houston [1st Dist.] Dec.
22, 2015, no pet.) (quoting Chesser v. LifeCare Mgmt. Serfs., L.L.C., 356 S.W.3d
613, 641 (Tex. App.–Fort Worth 2011, pet. denied)).
3. APPLICATION
The trial court determined that the total award of past non-economic
damages is less than the cap that applies, so all capped non-economic damages
should be considered past damages. The jury awarded noneconomic damages
totaling $6,600,000.00 ($2,200,000.00 to Thompson and $4,400,000.00 to
Washington). Initially, the trial court applied section 74.301 and capped
Thompson and Washington’s noneconomic damages at $250,000.00. The court
then apportioned the capped noneconomic damages between Thompson
($83,333.33) and Washington ($166,666.67) based on the percentage of
noneconomic damages awarded to each as compared to the total noneconomic
damages awarded. The court computed prejudgment interest on the entire amount
of the noneconomic damages cap of $250,000.00.
Appellants argue the trial court erred in applying the entire cap to past
noneconomic damages when computing prejudgment interest. Appellants maintain
that the plain language of section 74.301 makes no distinction between past and
future noneconomic damages when applying the cap. Appellants contend that the
cap applies to limit all noneconomic damages awarded in a judgment on a health
care liability claim. See Tex. Civ. Prac. & Rem. Code § 74.301(a). According to
appellants, the only way to ensure that prejudgment interest is correctly assessed
only on past noneconomic damages is to assess it on the percentage of the
$250,000 cap equal to the percentage that past noneconomic damages awarded
comprises the total noneconomic damages awarded. Thus, according to appellants,
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the final judgment should have computed prejudgment interest of $4,007.83 for
Thompson and $9,146.50 for Washington. We disagree.
Because section 74.301’s plain language limits only civil liability for
noneconomic damages, prejudgment interest is not included in section 74.301’s
limit on civil liability for noneconomic damages. See Houston, 2015 WL 9304373,
at *9. As such, appellants have not demonstrated the trial court erred in its
calculation of prejudgment interest. Appellants’ sixth issue is overruled.
III. Conclusion
Because we have overruled all issues on appeal, we affirm the judgment of
the trial court.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
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