Houston court appeals addresses legally sufficient evidence in suicide medical malpractice case

Houston’s 14th Court of Appeals recently entered an opinion in a medical malpractice wrongful death case against a group of healthcare providers at a Texas pediatric clinic. Sadly, the case involved the suicide after a minor. The case is styled Pediatrics Cool Care v. Thompson, No. 14-19-00031-CV, 14th Court of Appeals. You can read the opinion here.

As with many full-service pediatric clinics, at Pediatrics Cool Care, a pediatrician oversaw care provided at the clinic by nurse practitioners, physician assistants, and medical assistant. The standard of care requires a physician to provide appropriate supervision and oversight of these mid-level providers.

Over a two-year period, the minor patient (a young lady) was seen by various healthcare providers at the pediatric clinic for a variety of medical reasons, from acne to gastrointestinal complaints and migraines.

Toward the end of the two-year period, though, the patient saw a physician assistant (PA) for complaints of depression, stating that she felt sad all the time, could not control her feelings, had fits of crying, and was stressed out. Her mom reported a family history of depression and bipolar disorder, including the mom taking Celexa, a prescription depression medication at the time.

According to the lawsuit and evidence at trial, the PA didn’t perform a detailed psychiatric workup or use a depression questionnaire that was available. Instead, the PA proceeded to diagnose the patient with depressive disorder and prescribed a 30-day supply of Celexa.

Celexa is an antidepressant medication with a manufacturer’s black-box warning label of a significant risk of causing suicidal thoughts. At trial, the evidence was disputed on whether the PA provided the patient and her mother with information about the suicidal risk of taking Celexa, or asked the patient to see a counselor or schedule a follow-up appointment at the pediatric clinic within one week—the mom testified that the PA did none of this.

Another significant issue in this case was shoddy record-keeping. As a former hospital administrator, this got my attention.

At trial, the PA contended that a medical assistant changed the medical record diagnosis of depression to “depression, not otherwise specified” without telling the PA. Additionally, the PA testified that the medical assistant set the pharmacy three more 30-day rounds of refills, which wasn’t intended by the PA and exceeded what was allowed by law.

Unfortunately, the PA didn’t see the medical assistant’s changes to the medical record. That’s because Pediatrics Cool Care had a decidedly uncool lack of policy and procedure in place at the time to allow PAs or nurse practitioners (NP) to review medical records after they were transcribed.

About six weeks after the first Celexa prescription was ordered, the patient returned to the pediatric clinic to be seen by a NP for a migraine. The NP assessed the patient to have migraines and depressive order, and continued the Celexa prescription without questioning it. The NP testified that, after this visit someone accessed the medical record and changed her documentation by adding that the patient was to return to the office in 30 days for a follow-up visit.

Three months later, the mom called the pediatric clinic and spoke to a medical assistant about getting a refill for the minor’s Celexa prescription. According to the trial evidence, the medical assistant refilled the prescription without authorization from a licensed healthcare provider in the clinic. Tragically, the minor was found unresponsive in her room and later pronounced dead. The autopsy determined that her cause of death was suicide from an overdose of Benadryl.

A medical malpractice wrongful death lawsuit followed against the pediatric clinic, pediatrician, PA, and NP, alleging:

• Failure to warn of the risk of suicidal ideation posed by Celexa

• Failure to monitor the patient while she was on the anti-depression medication

• Failure to advise the mom and patient to be evaluated by a mental health professional

• Inadequate supervision by the pediatrician of the NP and PA

• Making improper prescription refills of the dangerous controlled medication Celexa

What happened at trial?

At trial, the jury found that the pediatrician and physician assistant were both negligent in causing the death of the minor patient, apportioning 75% responsibility to pediatrician and 25% responsibility to the PA. The jury verdict went into multiple millions of dollars. After application of statutory tort reform caps, the trial judge entered a judgment for $1.35 million.

The defendants appealed the case, challenging the legal sufficiency of the evidence. In other words, they learned that there wasn’t enough evidence to support the jury’s verdict. The Houston court of appeals disagreed.

Proving proximate cause

One of the essential elements of proving medical negligence cases in a proximate causation. This requires evidence that the healthcare provider’s act or omission was a cause-in-fact (or substantial factor) of harm, and that such harm was foreseeable.

Foreseeability means that the healthcare provider should have reasonably anticipated the dangers that his or her negligent conduct created for others. It only requires a general danger, rather than the exact sequence of events that produced the harm in order to be foreseeable.

The court noted that a plaintiff is not required to establish causation in terms of medical certainty order to exclude every other possible hypothesis. Rather, the standard is simply more likely than not. Meeting this burden of proof requires expert testimony.

In analyzing the plaintiffs’ evidence at trial, the appellate court noted that the plaintiffs presented testimony from two different physician experts detailing the standard of care and how the pediatric providers grossly missed the mark, proximately causing the minor patient’s suicide.

In contrast, the defendants presented testimony from a Baylor College of Medicine professor of pediatrics, Armando Correa, MD. Dr. Correa offered different expert testimony, chalking the minor’s suicide it up to, “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.“

Interestingly, the trial evidence shows that on cross-examination, the Baylor medical school professor acknowledged many deviations from the standard of care in the treatment of the minor patient. In short, the defense expert witness focused his testimony on how the mistakes of the pediatric practice didn’t make a difference in the outcome—he felt that the patient would have likely committed suicide regardless of the substandard care that had been provided.

Proving future economic loss in a wrongful death case involving a minor

One of the most interesting aspects of the opinion to me is that the court upheld the sufficiency of the evidence on the jury’s award for economic damages. Many lawyers have felt that these damages are notoriously hard to prove to jury and, if awarded, difficult to hold on appeal. This appellate opinion provides a roadmap of what it feels constitutes a legally sufficient evidence.

The jury awarded over $1 million to the deceased child’s parents for future economic losses. The evidence to support this included testimony that:

• The deceased child assisted with the care of her younger brother

• She wanted to be a doctor

• The decedent had planned to take of her parents as they grew older and help them in any way needed

• An economist provided calculations of her future earnings based on different potential educational attainment.

Together, the court found this was sufficient evidence, noting that the jury considered the evidence and awarded less money than the economist had appraised.

If you’ve been seriously injured because of medical malpractice in Texas, then contact a top-rated and rated Houston, Texas medical malpractice lawyer to discuss your potential case.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.