Wainwright's Dissent in

Providence Health Center v. Dowell (
Tex. 2008)  

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


Wainwright's Separate Opinion in Providence Health Ctr v. Dowell (Tex. 2008)


     Justice Wainwright,
concurring in part and dissenting in part. [link to 7-page pdf opinion]

     The Court holds that there was legally insufficient evidence that the conduct of Providence Health Center,
DePaul Center, and Dr. Pettit (collectively the defendants) caused Lance Dowell’s suicide. I hesitate to join the
Court’s opinion as there seems to be some unchallenged evidence that the health care providers’ breach of duty
was a causative agent. I write separately because the trial court erred in failing to include Lance in the negligence
and proportionate responsibility questions. I therefore concur in the Court’s holding reversing the judgments of the
court of appeals, but would remand to the trial court for a new trial.

     After their son Lance’s unfortunate suicide, Carolyn and Jimmy Dowell (the Dowells) sued the defendants for
wrongful death damages and for survival damages on behalf of Lance’s estate, alleging that Lance received
negligent health-related services and that the defendants departed from accepted standards of medical care. The
Dowells asserted that the defendants’ failure to properly evaluate and retain Lance in the DePaul facility caused
his death. The trial court submitted the negligence of Providence, DePaul, and Dr. Pettit to the jury but did not
include Lance or his parents in the submission. The defendants objected to the omission of Lance and his parents
from the negligence and proportionate responsibility questions. The jury found that all three defendants were
negligent and that their negligence proximately caused Lance’s suicide. In apportioning responsibility, the jury
found Dr. Pettit twenty percent liable, Providence forty percent liable, and DePaul forty percent liable. The jury
awarded $400,000 in wrongful death damages and $400,000 in survival damages. The court of appeals affirmed.

     The defendants assert that it was erroneous for the trial court to exclude Lance and his parents from the
questions in the jury charge. I conclude that although it was not error to exclude the Dowells, it was error for the
trial court to refuse to include Lance in the negligence and proportionate responsibility questions.

     A reviewing court may reverse and remand for a new trial based on an alleged error in a jury charge only if
such error “was reasonably calculated and probably did cause the rendition of an improper judgment.” Island
Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex. 1986); see also Sterling Trust
Co. v. Adderley, 168 S.W.3d 835, 843 (Tex. 2005); Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995). To
make this determination, the reviewing court should consider “the pleadings of the parties, the evidence
presented at trial, and the charge in its entirety.” Island Recreational Dev. Corp., 710 S.W.2d at 555.

     The defendants first argue that they submitted evidence of the Dowells’ negligence and that such evidence
entitled them to a jury question regarding the Dowells’ negligence and proportionate responsibility. Specifically,
the defendants point to the failure of the Dowells to remain with Lance in the thirty-six hours between his
discharge and suicide, despite Nurse Fox’s instruction to do so. Generally, however, there is no duty to control the
conduct of third persons. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
Although there is an exception to this rule when a special relationship exists, including between a parent and child,
see id., a child is understood to be a “a person under 18 years of age who is not and has not been married.” See
Tex. Fam. Code § 101.003. As an adult, Lance was not under the legal control or supervision of his parents. A
lack of action on the part of the Dowells could not constitute contributory negligence in the absence of some legal
duty. See Thapar v. Zezulka, 994 S.W.2d 635, 637–39 (Tex. 1999) (holding a mental-health professional owes no
duty to warn third parties of a patient’s threats in the absence of a doctor-patient relationship with the third
parties). Therefore, the trial court did not err in refusing to submit a question on the Dowells’ negligence and
proportionate responsibility.

     Next, the defendants argue that Lance was negligent in failing to follow his discharge instructions, and that his
negligence should have been submitted to the jury. The Dowells respond that the Legislature has specifically
prohibited juries from considering the negligence of people who commit suicide. Section 93.001 of the Texas Civil
Practice and Remedies Code provides that in a civil action for personal injury or death, “if [a person’s] suicide or
attempted suicide was caused in whole or in part by a failure on the part of any defendant to comply with an
applicable legal standard, then such suicide or attempted suicide shall not be a defense.” See also Kassen v.
Hatley, 887 S.W.2d 4, 12 (Tex. 1994). Applying the statute to this case means that Lance’s conduct in committing
suicide could not be considered by the jury. See Dallas County MHMR v. Bossley, 968 S.W.2d 339, 346 (Tex.
1998) (Abbott, J., dissenting); Kassen, 887 S.W.2d at 12.

     The Dowells argue that since the defendants do not contest the finding of their breach of the standard of care,
a jury could not consider any of Lance’s conduct. The statute, however, does not say that all acts of a deceased
cannot be considered by a jury when determining proportionate responsibility for causing the injuries in a case.
Rather, upon finding that the defendants breached an applicable legal standard, the statute precludes the
“suicide or attempted suicide” from being an affirmative defense. Tex. Civ. Prac. & Rem. Code § 93.001.

     This raises the question: Under what circumstances and in what light may Lance’s actions be considered by
the jury? Chapter 33 of the Texas Civil Practice and Remedies Code requires proportioning of damages among
responsible parties. Section 33.003 specifies that a jury “shall determine the percentage of responsibility . . . with
respect to each person’s causing or contributing to cause in any way the harm for which recovery of damages is
sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other
conduct or activity that violates an applicable legal standard, or by any combination of these.” Tex. Civ. Prac. &
Rem. Code § 33.003. The jury is to make this determination for all claimants, defendants, and responsible third
parties, where evidence has been submitted to support such a question. Id.; F.F.P. Operating Partners, L.P. v.
Duenez, 237 S.W.3d 680, 687 (Tex. 2007). If Lance’s actions apart from the act of committing suicide violated an
applicable standard of care (such as negligence), a jury should have weighed such actions in assigning
proportionate responsibility.

     Before being discharged from the hospital, Lance was instructed by Nurse Fox to take a prescribed medication
[1] and remain with family members until a follow-up examination at the MHMR center in three days. A jury could
have determined from the evidence submitted that Lance failed to follow those instructions and that such failure
was a contributing cause of his death. We have previously recognized that a patient has a duty to cooperate with
treating physicians, which includes cooperation both in diagnosis and in treatment. Jackson v. Axelrad, 221 S.W.
3d 650, 654 (Tex. 2007); Elbaor v. Smith, 845 S.W.2d 240, 245 (Tex. 1992). In Elbaor, we held that the failure of a
patient to take prescribed antibiotics was evidence of negligence that should have been submitted as a question
to the jury. Elbaor, 845 S.W.2d at 251. We later reaffirmed allowing a jury to consider the conduct of patients
when determining proportionate responsibility as part of an inclusive comparative negligence scheme rather than
“compartmentaliz[ing] negligence in rigid categories.” Jackson, 221 S.W.3d at 654.

     Justice O’Neill’s dissent argues that the jury could not have found Lance negligent, based on expert testimony
that his mental condition impaired his ability to follow instructions. While the jury, if asked, may not have found
Lance negligent, it was the jury’s role and not ours to determine whether Lance’s conduct contributed to his harm
(and to what degree, if any) or whether Lance’s mental state absolved him of responsibility for a portion of the
harm. It was not given that opportunity. Just as the Dowells were entitled to argue to the jury that Lance was not
negligent based on his mental condition and circumstances, the defendants were entitled to attempt to convince
the jury of Lance’s negligence and his proportionate responsibility for his death. Although this approach charges
juries with the subtle task of separating generally negligent conduct of the deceased from the conduct involved in
commission of the suicide, I believe juries, properly selected and guided, are capable of accomplishing this
nuanced task. See F.F.P. Operating Partners, L.P., 237 S.W.3d at 693 (citing cases in which juries considered
subtle distinctions in apportioning damages between intoxicated patrons and dram shops). Contrary to Justice O’
Neill’s assertion, my position is not that “parties that breached the standard of care [should] be absolved from
liability,” but that, as the Legislature directed, where multiple parties caused or contributed to cause harm, each
should be held responsible for their percentage of responsibility. __ S.W.3d __, __.

     Failure to include the requested questions was reasonably calculated and probably did cause the rendition of
an improper verdict. Reinhart, 906 S.W.2d at 473. The trial court should have included Lance in the negligence
question, with an instruction to the jury, if requested, not to consider Lance’s act of suicide in determining whether
Lance’s negligence, if any, proximately caused his death. Any subsequent finding of Lance’s proportionate
responsibility would be limited to Lance’s negligence in the first question. As the language of the assumption of
the risk statute governs all “civil action[s] for damages for personal injury or death,” in this case the same
limitations in the charge for use of the suicide as an affirmative defense apply to Carolyn and Jimmy Dowell. See
Tex. Civ. Prac. & Rem. Code § 93.001. Accordingly, I would reverse the court of appeals’ judgments and remand
these cases to the trial court for a new trial.


                                                                 J. Dale Wainwright




[1] Contrary to the dissent’s suggestion, prescribing medication was part of the physician’s treatment of Lance,
and there is no evidence that prescribing medication to help Lance get much needed sleep was not part of his
psychiatric treatment.                                                             

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

- consolidated with -  

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

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