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The Methodist Hospital v. Addison

Court of Appeals of Texas, Fourteenth District

May 16, 2019

THE METHODIST HOSPITAL, METHODIST HEALTH CENTERS, BAYLOR COLLEGE OF MEDICINE AND DONALD T. DONOVAN, M.D., Appellants
v.
CHERYL ADDISON, Appellee

          On Appeal from the 333rd District Court Harris County, Texas Trial Court Cause No. 2017-05760

          CONCURRING OPINION TO DENIAL OF MOTION FOR EN BANC RECONSIDERATION

          Tracy Christopher, Justice.

         In our December 21, 2018, opinion in this interlocutory appeal from the denial of motions to dismiss appellee Cheryl Addison's health-care liability claims against a physician and three health-care providers, we reversed the trial court's ruling as to the physician but affirmed the trial court's refusal to dismiss Addison's vicarious- liability claims against The Methodist Hospital, Methodist Health Centers (collectively, "Methodist"), and Baylor College of Medicine. Methodist moved for en banc reconsideration, and we deny that motion today. I write separately to address Methodist's argument that the panel decided Methodist's appeal on "an argument that Addison waived and/or abandoned" or that Addison was equitably estopped from making.

         I. Background

         To briefly recap, Addison pleaded that she was injured when she was given the wrong medication by a student registered nurse anesthetist. Addison alleged both that the medication mix-up was due to the negligence of Methodist's pharmacy personnel and that the error was caused by the negligence of the student nurse while the student was "acting within the course and scope of his studies, responsibilities, employment, and/or agency as a student, agent, servant, and/or employee, of Defendant Baylor College of Medicine and/or Methodist."[1]

         In the trial court, Methodist objected that Addison's expert reports were insufficient because "they do not implicate the conduct of the hospital, or any of its employees, and they do not indicate the claim against the hospital defendants has merit." Addison responded, "Methodist is a party to this lawsuit for the reason that it is vicariously liable for the conduct of its pharmacy staff." In the trial court and in their appellate briefing, Methodist and Addison disputed whether the expert reports were sufficient as to the Methodist pharmacy staff, but the parties did not join issue as to whether the expert reports implicating the student nurse were sufficient to show that the claims against Methodist were meritorious.

         At oral argument, however, the panel drew the parties' attention to the language of Addison's pleading alleging that the student nurse was the "student, agent, servant, and/or employee, of Defendant Baylor College of Medicine and/or Methodist." Addison's counsel explained that he pleaded that the student nurse was "a Baylor and/or a Methodist employee" because it was not yet known "who was controlling the details of the work at that point in time for that that particular nurse." In a post-submission brief, Methodist argued that Addison was barred from relying on the allegation by waiver, abandonment, or equitable estoppel. Addison did not respond to the post-submission briefing.

         We held in our opinion that Addison's expert reports were sufficient to show that the student nurse's breach of the standard of care proximately caused Addison's injuries, and because Addison alleged that Baylor "and/or" Methodist were vicariously liable for the student nurse's negligence, the expert reports were sufficient as to Methodist; however, we did not address Methodist's waiver, abandonment, and equitable-estoppel arguments.

         In its motion for en banc reconsideration, Methodist reurged its post-submission waiver argument and incorporated by reference its post-submission briefing on waiver, abandonment, and equitable estoppel. In her response to the motion, Addison argued that her briefing in the trial court and on appeal maintaining that Methodist is vicariously liable for the conduct of its pharmacy staff is not inconsistent with its additional allegation that Baylor "and/or" Methodist are liable for the conduct of the student nurse. I agree, and I join in the Court's denial of Methodist's motion for en banc reconsideration. I write separately to explain my reasons for rejecting Methodist's waiver, abandonment, and equitable-estoppel arguments.

         II. Analysis

         In Greene v. Farmers Insurance Exchange, the Supreme Court of Texas wrote, "We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court." 446 S.W.3d 761, 764 n.4 (Tex. 2014). The frequency with which the high court has cited this language lends the Greene principle further emphasis. See, e.g., Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896-97 (Tex. 2018); Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 n.5 (Tex. 2017); Green v. Dall. Cty. Sch., 537 S.W.3d 501, 505-06 (Tex. 2017).

         The issue Methodist presented for review was, "The trial court abused its discretion by denying Methodist's section 74.351 Motion to Dismiss because Addison served 'no report' as to Methodist." Because Addison "defended the adequacy of the report in the trial court, . . . we may address her arguments on that issue," regardless of whether she raised in the trial court the argument that we find persuasive on appeal. Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 n.5 (Tex. 2017) (per curiam); cf. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018) (explaining that if an issue was raised in the trial court, a litigant "was not required on appeal or at trial to rely on precisely the same case law or statutory subpart that we now find persuasive").

         Greene and its progeny illustrate that a party can make a new argument in support of an existing issue even later than was done in this case. In Greene, an insurer denied a homeowner's claim for fire damage to his vacant residence on the ground that the policy suspended coverage after sixty days' vacancy. Greene, 446 S.W.3d at 763. Greene argued that the insurer was precluded from relying on the vacancy clause due to the state's anti-technicality statute and because the vacancy was unrelated to the loss and did not prejudice the insurer. Id. at 764. The parties filed cross-motions for summary judgment on these grounds, and the trial court granted Greene's motion and denied the insurer's. Id. at 763. The court of appeals reversed and rendered judgment for the insurer, see id. at 764, and the Supreme Court of Texas granted Greene's petition for review.

         In the insurer's response brief on the merits, it argued for the first time that an insured could obtain fire coverage during periods of vacancy only by purchasing separate form endorsement TDP-011 at an additional premium, and that there was no evidence Greene had purchased the endorsement. See Greene v. Farmers Ins. Exch., No. 12-0867, Resp. to Pet'r's Br. on the Merits, June 10, 2013, at 23, 26-27.[2]In reply, Greene argued that the insurer should be precluded from ...


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