## IN THE SUPREME COURT O F TEX AS

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. 10-0511

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### R O D R IG U E Z


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### M IC H A E L 

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### T IM O T H Y 

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### , I N D IV ID U A L L Y A N D A S 

### R E P R E S E N T A T IV E S O F T H E 

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### B E V E R L Y 

### G O S S 

### , R E S P O N D E N T S

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E T H I R T E E N T H D I S T R I C T O F T E X A S

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P ER CURIAM

I n this health car e liability case , Dr. Dieg o Rodrigue z-Escobar exami n ed Be verly Goss to deter mine whether s h e met the criter ia for involuntary hospitaliz ation for psy chiatric car e. He decide d she did not and rele ased her. Three day s later she committed suicide, which prec ipitated this suit based on alleg ations that Dr. Rodrig uez-Escoba r’s fa ilure to involuntarily hospitaliz e her was
neg lige nce. A jury found ag ai n s t Dr. Rodrigue z-Escobar and awa rded damag es. The trial court rende red judg ment on the ver dict and the c ourt of appe als aff irmed. We reve rse a

nd rende r. Goss had a history of suicidal beh avior. She was depre ssed beca use her husband, Danny Goss, left her. On Marc h 17, 2003 she discharg ed a shotgun inside her bedroom, which resulted in the police coming to he r house. She told the office r that she wanted to take her life, so he took he r
to Texas State Tropica l Center (Tropic al) for a psy chiatric evalua tion. See T E X
. H E A L T H & S A F E T YC O D E §§ 573.001–.002 (providing that a peac e office r may initiate emer g ency detention proce eding s

without first obtaining a war rant). Goss rec eived an initial scre ening at Tropica l and was transfe rre d
to McAllen Medica l Be haviora l Hea lth Center (MMBH C), a private hospital. She was admitted to MMBHC on a voluntary basis. See id. §§ 572.001–.005 (providing proce dures for patients who are voluntarily

admitted for inpatient menta l health servic es).
Goss was trea

ted at M M BH C for depre ssion by Dr. Cesar Matos. During her stay she
reque sted to be discharg ed, but wit h d re w h er re quest afte r speaking with Dr. Matos. Her son, Michae l, beli ev ed t hat s he continued to be at risk of commi tting sui cide and that she would try to leav e M M BH C

. Be cause of that belief, he obtained a Mental Hea lth Warrant for Emerg ency Detention (De tention War rant) to ha

ve her involuntarily admitted to a state mental health fac ility

. See id. §§ 572.004 (re quiring that a patient, voluntarily admitted, must be discharg ed within four hours of a written reque st unless a phy sician has rea sonable cause to believ e t h e p ati ent require s

emer g ency detention); see also id. § 573.011–.012 (providing that an adult may obtain a Detention
Warrant by filing a proper application). Dr. Matos testified that he discharg ed Goss to Tropica l with the intention that she be transfe rre d to Rio Gra nde State Center (Rio Gra nde) for continued
trea tment, but that he had “no sa y who g ets admitted or not there .”
Goss was transfe rre d to Tropica l, wher e she was further ref err ed t o R io Gra

nde. At Rio
Gra nde Dr. Rodrigue z-Escobar conducte d a preliminary examination which included revie wing the Tropica l triag e form , M i chael’s “Applica tion for Emerg ency Appre hension and Detention,” the Detention Warrant, and the medi cal rec ords from MMBHC. He also interviewe d Goss for approximately forty -five minutes. He testified at trial that she participa ted fully in the interview, was
2calm, and was not ag itated. After completing the preliminary examination, Dr. Rodrigue z-Escobar

conclude d that Goss did not meet the criter ia for i n voluntary hospitaliz ation. She was release d at approximately 10:00 a.m. on Marc h 26, 2003 and Dr. Rodrigue z-Escobar rec ommended out-patient
trea tment for her

depre ssion, including medication and follow-up appointments with Tropica l. The same day she was rele ased, Goss visited Michae l at his home. Michae l t es t i fi ed t hat during this visit she seeme d better. He also testified that Goss had full custody of his son, J .D., and he let J.D. go home w ith her. The nex t d ay Go s s attended a follow-up appointment with her family doctor, J oseph Montgome ry -Da vis, M.D. Dr. Montgome ry -Da vis re- evalua ted her for depre ssion and loss of sleep and author ized prescr iption refills.
J oe Compean, a social service worke r at Tropica l, visited Goss’s home on Marc h 28 to assess her home environment and to inf orm her of

the importance of attending her ne x t appointment. At trial he testified:
I can say that she presented herself well. I mean, it was normal. I can’ t reme mber much, but I reme mber the conver sation was, y ou know, comforta ble. J ust talking and telling he r the importanc e of the appointment and her being ag ree able. Compean further testified that Goss did not appea r depre ssed, sad, withdrawn, ag itated, or confuse d, and that he did not obser

ve any cry ing spe lls during his visit.
After her rele ase from Rio Gra nde, Goss had two or three conver sations with her neig hbor, Sheriff L arr

y Spence. She had previously asked S p en ce to locate her husband, Danny

. Spence
tes t i fi ed that he asked her “[w] hat i f [ Danny ] calls back and say s he does not want any thing to do with y ou whatsoeve r? Can y ou handle that? ” She re sponded “I can live w ith that.”

3Goss called Danny on Marc h 29 and they discussed their financ ial status and how they wer e

g oing to “ handle the se para tion.” Michae l testified that he also spoke w ith Goss on Marc h 29. I n that conver sation she confirme d talking with Danny about financ es and said that “she had intentions

on g oing afte r his r etireme nt a nd alimony .” Shortly afte r 8:00 p.m. that evening Goss purcha sed a
g un. She then dropped J .D. off at her son Timothy ’s house at approximately 12:30 a .m. on Marc h 30, 2003. L ater that day Sheriff Spence noti ced a not e on Goss’s door and called t he poli ce. The
transcr ipt of his call was re ad to the jury . Sheriff Spenc e stated on this ca ll that there is a big note taped to the front door of Be verly Goss’ house and my wife went over and rea d it awhile ag o and it say s something, “I can’ t l i v e without Danny ” or something. . . .

. . . . I think she made contac t with him in Florida last night, is what she told me any way , to st o p l ooking for him, I found him. And she g ave me a phone number wher e he was at. And may

be he told her something or something might have drove her off the edg e. Goss was late r found de ad in her home with a g unshot wound to the head.
G o s s ’ s s o n s

—

M ic h a e l, T im o th

y , a n d St e v e n

— (collec tively , the Gosses) sued Dr. Rodrig u e zEscobar for neg lige nce in failing to involuntarily hospitaliz e her. The jury fo u n d aga i n st Dr. Rodrigue z -E s co b ar an d awa rded damag es of $200,000. The trial court render ed judgment on the verdic t and the cour

t of appe als aff

irmed. ___ S.W.3d ___.
I n this Court Dr. Rodrigue z-Escobar does not challeng e the jury finding that he wa s
neg lige nt. Howeve r, he asser ts that (1) he has immunit y under section 571.019(b) of the Texas
Hea lth and Safety Code which provides that “[a] phy sician perf orming a medical examination and

4providing information to the court in a court proce eding un d er [t he Mental Hea lth Code]

. . . is

considere d an office r of the court and is not liable for the examination or testimony wh en acting without malice” ; (2) he has officia l immunit y beca use he was perf

o rm i ng a court-or dere d examination of a person for involuntary commitm en t ; an d (3 ) the evidenc e of proxi mate cause is leg ally insufficient. The Gosses respond that (1) the issue of immunit y under section 571.019(b) has
not been prese rved, and in any event the evidenc e and jury verdic t do not support the claim; (2) the issu e o f o fficia l immunit y has likewise not been prese rved; and (3) the evidenc e is sufficie nt to support the jury finding that Dr. Rodrigue z-Escobar’ s neg lige nce proxi mately cause d Goss’s death. Assuming, without deciding , that the immunit y issues wer e not prese rved, we ag ree that the 1
evidenc e of c ausation is leg ally insufficient to support the ve rdict. “The elements of a neg lige nce c ause of action ar e the e x istence of a leg al duty , a brea ch of
that duty , and damag es proxi mately cause d by the brea ch.” IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Maso n , 143 S.W .3d 794, 798 (Tex. 2004). Prox imate cause has two components: (1) fore seea

bility and (2) cause -in-fa ct. Id. For a neg lige nt act or omission to have been a cause -infac t of the harm, the act or omission must have been a substantial fac tor in bring ing about the harm, and absent the act or omission— i.e. , but for the act or omission—t he harm would not have occur red.
See Park Place Ho s

p
. v. Estate of Milo , 909 S.W .2d 508, 511 (Tex. 1995) (citation omitted). A phy sician’s failure to hospitaliz e a person who later commits suicide is a prox i m at e ca u se of the suicide only if the suicide probably would not have occur red if the dece dent had been hospitaliz ed.

“ O f f i c i a l i m m u n i t y i s a n a f

f i r m a t i v e d e f

e n s e
. ” C i t

y o f L a n c a s t e r v
. C h a m b e r s , 8 8 3 S

. W

. 2 d 6 5 0 , 6 5 3 ( T e x . 1 1 9 9 4 )

. 5See Providenc e Health Ctr. v. Dowell , 262 S.W .3d 324, 328 (Tex. 2008). I n ad d i t i o n , an actor’s

neg lige nce “may be too attenuate d from the resulting injuries to the plaintiff to be a substantial fac tor in bring ing a

bout the harm.” Id. at 329-30 (c itations omi tted).
I n Dowell , we addre ssed whether a p h y s i ci an ’s neg lige nce in discharg ing L ance Dowell proxi mately cause d his post-discharg e suicide. Id. at 328-29. I n that case Dowell was taken to the

emer g ency room (ER) by a deputy sheriff afte r h e at t empt ed to commit suicide beca use his
g irlfriend’ s pare nts told him to stay awa y from their daug hter. Id. at 325-26. By the time he rea ched the ER he was no longe r threa tening to commit suicide. Id. The ER phy sician and nurse trea ted Dowell’s wrist lace rations, and the phy sician ag ree d to rele ase him if he signe d a no-suicide contra ct,
went to the local Mental Hea lth and Mental Retarda tion cente r afte r the long wee kend, and promised
to stay with his fam i l y u n t i l h e visited the cente r. Id. at 326-27. Dowell killed himself that

wee kend—appr ox imately thirty -three hours af

ter he was discha

rg ed fr om the ER. Id. Dowell’s pare nts sued the h o s p i t al and the attending ER doctor and nurse for neg lige ntly discharg ing him without a compre hensive assessment for his risk for suicide. Id. at 327-28. We held
that Dowell’s discharg e from the ER was not a proxi mate cause of his death for two rea sons. First, the plaintiff’s expert did not testify that hospitaliz ation more likely than not would have preve nted Dowell’s suicide, and there was no other evidenc e it would have. Id. at 328. Second, Dowell’s discharg e from the ER was “too remote from his death in terms o f t i m e an d ci rcumstanc es” to be classified as a prox imate cause. Id. We held t hat “the defen d an ts’ neg lige nce was t oo attenuate d
from the suicide to have been a substantial fac tor in bring ing it about” beca use there was “no evidenc e that [Dowell] could have been hospitaliz ed involuntarily , that he would have consente d to

6hospitaliz ation, that a short-term hospitaliz ation would hav e m ade his suicide unlikely , that he

exhibi ted any unusual conduct following his discharg e, or that any of his family or friends believed further trea tment was re quired.” Id. at 328-30.
To deter mine whether the actions of the defe ndants in Dowell proxi mately cause d Dowell’s suicide we ana ly

ze d b o th fac tors of the cause -in-fa ct element of proxi mate cause : whether the actions

wer e a substantial f

actor in bring ing a

bout the suicide and whether , but f or the actions, the suicide would not have occur

red. I n this case we need only consider the but-for fac tor. That is, we consider whether the evidenc e is leg ally sufficie nt to support the finding that absent t h e n egl i gen ce of Dr. Rodrigue z-Escobar—but f or his neg lige nce—G oss would not have committed suicide. 2
To support their position that hospitaliz ing Goss probably would have preve nted her suicide, the Gosses point to evidenc e indicating that her de pression wa s trea table, she would not ha ve shot herse lf in the hospital, and it was fore seea ble she might commit suicide if she wer e not hospitaliz ed.
But they ref

ere nce no evidenc e that hospitaliz ation would have preve nted Goss’s suicide except for whatever t i m e p er i o d she was hospitaliz ed. The testimony on the issue was to the eff ect that (1)
Goss likely would not have neede d hospitaliz ation for the rest of her life; (2) she probably would not have shot herse lf while hospitaliz ed; and (3) hospitaliz ation could have provided acute , immediate, short-term help, but her long- term status could not be predic ted. The Gosses particula rly ref ere nce

R e f e r e n c i n g D o w e l l , D r
. R o d r i g u e z - E s c o b a r a l s o a r g u e s t h a t h i s r e l e a s e o f G o s s w a s t o o a t t e n u a t e d f r o m h e r 2
s u i c i d e f o r i t t o h a v e b e e n a p r o x i m a t e c a u s e o f h e r d e a t h

. H e n o t e s t h a t t h r e e d a y s p a s s e d f r o m t h e t i m e s h e w a s r e l e a s e d f r o m R i o G r a n d e u n t i l t h e t i m e o f h e r s u i c i d e
. D u r i n g t h i s t i m e s h e w e n t a b o u t h e r u s u a l r o u t i n e a n d a f a m i l y m e m b e r d e s c r i b e d h e r a s “ a l l r i g h t

. ” D u r i n g t h i s t i m e p e r i o d G o s s m e t w i t h h e r f a m i l y p h y s i c i a n , w h o d i d n o t n o t e a n y t h i n g u n u s u a l a b o u t h e r b e h a v i o r , a n d C o m p e a n , t h e s o c i a l s e r v i c e w o r k e r , w h o s a w n o i n d i c a t i o n s o f d i s t r e s s
.

B e c a u s e o u r d e t e r m i n a t i o n t h a t t h e r e i s l e g a l l y i n s u f f i c i e n t e v i d e n c e t o s u p p o r t p r o x i m a t e c a u s e i s d i s p o s i t i v e , w e a d d r e s s o n l y t h a t i s s u e
. 7two passag es of their expert’s testimony

that they say support a finding of cause -in-fa ct. The f irst is: Q: Do y ou have an opinion as to whether or not had she b ee n h o spitaliz ed on

Marc h 26th, she would have survived?
A: Well, if she had been in the hospital, I don’t think that she would have been able to kill herse l f, at least not shoot herse lf. And hopefully if a plan had been in place , then her chanc es of having a better life would have been there

. I don’t know long term what her prog nosis would have been. I t would have depende d upon a lot of thing s. The sec ond is: Q: L et me ask y ou another question, Doctor.

. . . Taking this definition [of proxi mate cause ] into acc ount, Doctor, can y ou tell me whether y ou have an opinion as to whether or not Dr. Rodrigue z-Escobar’ s neg lige nce was a proxi mate ca

use of B ever ly

Goss’s dea th?
A: Yes. Q: And ca

n y ou explain to us y our opinion and the ba sis for it?
A: You have so m eb o d y wh o is sever ely depre ssed with all the things we’ ve discussed, all the risk fac tors and all the red flag s, and rele ase them on their own, that it is a re as onable - - one might rea sonably fore see that a suicide would be a r esult. The court of appea ls conclude d that the first passag e of t h e fore g oing testimony “demon strated that hospitaliz ation would have made [Goss’s] suicide unlikely .” ___ S.W .3d at ___. We disag ree
. I n Dowell we held expert testimony that Dowell “‘w ould have improved’ and been at a ‘lower risk’ of suicide when he left” the hospital was not evidenc e that hospitaliz ation would have made the suicide unlikely

. Dowell , 262 S.W .3d at 328 (“N o o n e s upposes hospitaliz ation would

8have made [i t] worse.” ). Simi l ar l y h er e, evidenc e that Goss’s depre ssion was to some deg ree

trea table or that the expert thought Goss would not have been able to shoot herse lf while hospitaliz ed is not evidence that hospitaliz ation would have ma de her suicide unlikely

afte r she was rele ased. 3
See id. The question is not whether Goss was sever ely depre ssed or whether trea tment would have reduc ed her depre ssion—the parties do not disag ree on these issues. Nor is it whether she met the 4 statutory require ments for involuntary detention under

the Hea lth and S afe ty Code or whether Dr

. Rodrigue z-Escobar’ s failure to involuntarily hospitaliz e her was neg lige nce. Rather, the que stion is whether Goss’s hospitaliz ation on Marc h 26, 2003 would have made her death unlikely

. See id. Testimony in the first passag e quoted above, that the expert did not think she would have been able
to shoot herse lf while hospitaliz ed, is not eviden ce t h at hospitaliz ation probably would have
preve nted her from doing so afte r she was rele ased. The testimony candidly aff irms that view. And
in the secon d p as sag e quoted above, the expert addre sses the fore seea bility element of proxi mate

cause b u t does not addre ss the cause -in-fa ct element. Thus, neither passag e is evidenc e that Dr. Rodrigue z-Escobar’ s failure to hospitaliz e Goss wa s a ca use-in-f act of her suicide

. Be cause there is no evidenc e that Goss’s involuntary hospital i z at i o n by Dr. Rodrigue zEscobar probably would have preve nted her death, the evidenc e is leg ally insufficient to support the
fi n d i n g t h at h is neg lige nce proxi mately cause d her death. We g rant the petition for revie w and

W e e x p r e s s n o o p i n i o n a b o u t w h e t h e r t h e e v i d e n c e i s s u f f i c i e n t t o s h o w t h a t G o s s p r o b a b l y w o u l d n o t h a v e 3
c o m m i t t e d s u i c i d e i n t h e h o s p i t a l ; t h a t q u e s t i o n i s n o t b e f o r e u s
. D r
. R o d r i g u e z - E s c o b a r p r o v i d e d G o s s w i t h a t r e a t m e n t p l a n f o r h e r d e p r e s s i o n w h i c h i n c l u d e d f o l l o w - u p 4 t r e a t m e n t s a t T r o p i c a l a n d m e d i c a t i o n
. 9without hear ing oral arg ument, T E X
. R. A P P
. P. 59.1, reve rse the court of ap peals’ judgme nt and

rende r judg ment in favor of Dr. Rodrig uez-Escoba

r.

OP INION DELIVERED: Fe bruar y 1, 2013

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