IN THE
TENTH COURT OF APPEALS
No. 10-02-00026-CV
Providence Health Center
a/k/a Daughters of Charity
Health Services of Waco; AND
DePaul Center a/k/a Daughters of
Charity Health Services of Waco,
Appellants
v.
Jimmy and Carolyn Dowell,
Individually and on behalf
of the Estate of JONATHAN
Lance Dowell, Deceased,
Appellees
From the 170th District Court
McLennan County, Texas
Trial Court # 99-2717-4
DISSENTING Opinion
This is an appeal of a wrongful death and survival suit. We should reverse and render. Because the majority does not do so, I respectfully dissent.
Procedural Prelude
In the past we have had so few opinions withdrawn that no particular problems were created if the opinions were withdrawn by an order separate from the new opinions being issued. The problem is that over the past year we have withdrawn numerous opinions, with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses. Issuing multiple opinions in the same appeal creates confusion. A person can hold in their hands two opinions from this Court, both certified by the clerk as authentic, which are not the same. Our past practice has been that the latter normally does not reference the existence of the earlier opinion that is being withdrawn.
Our past practice did not present a problem when the issuance of another opinion in the same case was rarely done. At least the problem was manageable. But due to the greatly increased frequency of the majority issuing multiple opinions, I thought it was an appropriate time to adopt the procedure utilized by the Texas Supreme Court; to include the order, and explanation if needed, withdrawing the prior opinion as the first paragraph of the new opinion. See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000).
This is a simple procedure for the convenience of anyone reading the opinions to understand, and easily determine which opinion is the Court’s final opinion. This process also allows a researcher, interested in the ultimate disposition, to easily track backwards, if necessary, to see the development of the final opinion. Because the majority refuses to provide that information in its opinion, I do so in this dissenting opinion.
Prior History of This Appeal
The Court’s opinion affirming the trial court’s judgment, the judgment, and Chief Justice Gray’s dissenting opinion, all dated October 6, 2004, were withdrawn November 10, 2004 and the Court’s opinion, Chief Justice Gray’s dissenting opinion, and the judgment of this date are substituted therefore.
With these comments regarding the history of this appeal, I now proceed to the substance of my dissenting opinion.
The Dissenting Opinion
In Appellants’ first issue, they contend that there was no evidence of proximate cause and no evidence that Appellants failed to perform an appropriate psychiatric screening examination. See 42 U.S.C. § 1395dd(a) (2000).
Appellees contend that Appellants waived their issue by failing to object to the testimony of one of Appellees’ expert witnesses. The cases cited by Appellees, to the extent that they are on point, concern the waiver of objections to the methodological reliability of expert testimony, not the sufficiency of the evidence. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998); Crown Cent. Petroleum Corp. v. Coastal Transp. Co., 38 S.W.3d 180, 190 (Tex. App.—Houston [14th Dist.] 2001), rev’d, 136 S.W.3d 227 (Tex. 2004); Gen. Motors Corp. v. Castaneda, 980 S.W.2d 777, 780 n.2 (Tex. App.—San Antonio 1998, pet. denied).[1] By making an objection to the charge, filing a motion to disregard jury questions and for judgment notwithstanding the verdict, and filing a motion for new trial, all on the grounds that there was no evidence of proximate cause, Appellants preserved their no-evidence complaint. See Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 259 (Tex. 2004); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992).
Lance Dowell was admitted to the Providence Health Center emergency room for treatment of shallow self-inflicted cuts to his wrists. A nurse employed by Appellants performed a psychological evaluation of Lance. Appellees contend that Appellants failed to promulgate or enforce policies for psychological screenings, that the nurse failed to perform an appropriate screening, and that these failures caused Lance’s death. The undisputed evidence was that when the nurse evaluated Lance, Lance was lucid, calm, remorseful, stable, and not actively suicidal. There is no evidence that, if Appellants had recommended admission to the DePaul Center, a psychiatric hospital, Lance would have agreed or could have been compelled to be admitted. After Lance was released from Providence to Appellees, and until his death, Appellees saw nothing out of the ordinary about Lance except that he was “more withdrawn.” The day that he was released from the hospital, Lance visited with his family, went to a rodeo, and visited with friends. The next day, he had lunch with his family and helped a friend bale hay. About a day and a half after he left Providence, Lance hanged himself. Appellees’ expert testified, at most, that had Lance been admitted to DePaul the probability that he would commit suicide upon his release would have been reduced.
Under these facts, there is no evidence that Appellants’ conduct was a substantial cause of Lance’s death. See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Ramos, 143 S.W.3d 794, 798-800 (Tex. 2004); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20 (Tex. 2002); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex. 1998). Accordingly, we should sustain Appellants’ first issue.
We should, then, after sustaining Appellants’ first issue, reverse and render judgment that Appellees take nothing from Appellants. Therefore, we should not consider Appellants’ other issues.
Because the disposition of the first issue would be dispositive of the appeal, I will not discuss my disagreements, and there are many, with the remainder of the majority’s opinion. I note only in passing that an estate, by that name, is not a proper party to litigation. Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415 n.2 (Tex. 2000); Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975). I also note that two notices of appeal from the same judgment should bear the same docket number on appeal. Tex. R. App. P. 12.2(c). Docketing this cause and Cause No. 10-01-00420-CV, styled Pettit v. Dowell, as two separate appeals was improper.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed March 30, 2005
[1] See also Coastal Transp. Co v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 231-33 (Tex. 2004); Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 252 (Tex. 2004).