                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-19-00028-CV



                   WILLIAM C. CURTIS AND TINA CURTIS, Appellants

                                               V.

  JAMES HUMBERTO URBINA, M.D., AND CHRISTUS HEALTH ARK-LA-TEX D/B/A
            CHRISTUS ST. MICHAEL HEALTH SYSTEM, Appellees



                             On Appeal from the 5th District Court
                                    Bowie County, Texas
                                Trial Court No. 12C1341-005




                         Before Morriss, C.J., Stevens and Carter,* JJ.
                        Memorandum Opinion by Chief Justice Morriss
                             Dissenting Opinion by Justice Carter

___________________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
                                 MEMORANDUM OPINION
       The medical malpractice claims of William C. Curtis and Tina Curtis against Christus

Health Ark-La-Tex d/b/a Christus St. Michael Health System (Christus) were rejected by the trial

court’s directed verdict, and they appeal. Because the Curtises failed to challenge all grounds of

the trial court’s directed verdict in their opening brief, they have forfeited any alleged error.

       In September 2010, William was working outside in the heat when he suddenly “felt a little

woozy” and experienced hearing loss. William, who had been in administration in the healthcare

field and was at the time employed by Neurological Associates of Texarkana, believed that he may

have suffered a stroke. He asked his son, who worked at Christus, to take him to Christus’

emergency room. Once there, William was seen by a teleneurologist who diagnosed him with

benign positional vertigo (BPV), expressed doubt as to whether William had had a stroke, and

requested imaging that ultimately revealed the absence of stroke, but showed that William had two

vertebral arteries that were “very small.” The teleneurologist also recommended consultation with

an “[i]n-house” neurologist, if available.

       The following day, William was seen by James Humberto Urbina, M.D., a doctor of

internal medicine—not neurology. Urbina testified that he decided not to consult with an on-site

neurologist before manipulating William’s neck in applying Dix-Hallpike and Epley maneuvers,

which are designed to diagnose and treat BPV. Immediately after Urbina performed these

maneuvers, described by the Curtises as “violent,” William’s blood pressure crashed, and he

vomited and experienced double vision. After an evaluation by Dr. Khalid Malik, a neurologist




                                                  2
connected to Wadley Hospital (Wadley), the other local hospital, William was diagnosed with a

brain stem stroke.

            The Curtises sued Urbina 1 and Christus for medical negligence. With respect to Urbina,

the Curtises alleged that his failure to consult an on-site neurologist and performance of the neck

maneuvers, which were allegedly contraindicated given his stroke symptoms and the imaging

revealing his small vertebral arteries, fell below the standard of care that would be used by prudent

physicians of internal medicine presented with the same or similar circumstances. The Curtises

claimed that Urbina’s performance of the neck maneuvers proximately caused William’s stroke

and resulting damages.

            The Curtises also asserted two causes of action for negligence against Christus. In one

claim, the Curtises alleged that Christus was directly negligent “for not arranging for in-person

neurology services for its stroke program,” that an “in-person” neurologist would have prevented

the performance of the allegedly-contraindicated neck maneuvers, and that William would not

have suffered the damages caused by Urbina resulting from the neck maneuvers. The Curtises’

second claim alleged Christus was negligent for “failing to inform recipients of its marketing

efforts that . . . it did not actually have an on-site neurology service”; but-for this false advertising,

William would have gone to Wadley; Wadley had an on-site neurologist; and Wadley’s neurologist

would have prevented the performance of the neck maneuvers, which proximately caused

William’s injuries. The marketing materials the Curtises referenced were Christus’ CEO reports

touting its certification as a primary stroke center sent to Neurology Associates of Texarkana.


1
    Urbina is not a party to this appeal.
                                                    3
William testified he was misled into believing that Christus had an on-site neurologist available at

all times because the reports stated that (1) Christus had “[a]n Acute Stroke Response Team-

available 24/7/365,” (2) “[t]he CSM Stroke Team [wa]s led by neurologist Nancy Griffin, M.D.,

who serves as the Medical Director,” (3) “[c]omplementing this care is medical expertise access

to recognized experts in the field of neurology via teleneurology,” and (4) “[t]eleneurology,

available 24/7/365, serves as an asset to our Stroke Team and complements patient care provided

by the neurologist.” 2

            At trial, when asked if there was an on-site neurologist, Urbina testified that Christus “did

not provide one.” The Curtises also testified that Urbina told them Christus did not have an on-

site neurologist on the day the neck maneuvers were performed. On the day the maneuvers were

performed, Malik went to Christus to evaluate William “[b]ecause they needed a live neurologist”

and “really needed help.” However, during Christus’ case-in-chief, Griffin testified that she

looked at her calendars from September 2010, which she did not bring to trial, and testified that

she must have been available because she was not out of town and was otherwise available for

neurological consultation “24/7.”

            After Christus presented this evidence, it moved for directed verdict on each element of

Urbina’s negligence claims. Christus argued that the two expert witnesses presented by the

Curtises at trial, William and Malik, did not present evidence of the standard of care for hospital

advertising and also failed to establish that the standard of care applicable to Christus required it

to provide an on-site neurologist. On the issue of proximate cause, Christus argued there was no


2
    The Curtises also alleged vicarious liability claims against Christus that were abandoned at trial.
                                                              4
evidence that it could have foreseen (1) that William would be injured as a result of its advertising,

(2) that Urbina would not know of Griffin’s availability, or (3) that Urbina would choose not to

consult an on-site neurologist.

        In granting Christus’ motion for directed verdict, the trial court made the following specific

findings:

        The negligence alleged against [Christus] was that there was no neurologist
        available to be consulted. The evidence in this case that’s been presented, the Court
        finds there can only be one reasonable conclusion drawn from that, and that is that
        there was a neurologist that was available from [Christus]. Why that neurologist
        was not called, why Dr. Urbina may or jury may have some evidence that says that
        they can consider that Dr. Urbina may have said there was no neurologist, but
        whether or not Dr. Urbina decided to call a neurologist, was aware that there was a
        neurologist to call, all of that would be a fact issue for the jury to decide, but that is
        not -- if anything, that’s an intervening fact or an intervening cause with regard to
        [Christus’] liability in this matter. The Court’s going to find that there is no cause
        in fact, that there is a problem with proximate cause. Court’s going to grant directed
        verdict for [Christus] . . . .
                 Court’s going to find that there is no causal link [on the negligent
        advertising claim]. The fact that the -- even if the misrepresentations were
        negligent, even assuming that they were negligent, all that did was get him to
        [Christus] . . . as opposed to Wadley, and there’s still no causal relationship between
        being at [Christus] versus Wadley in the injury that has occurred. . . . The Court’s
        going to grant directed verdict.

        The Curtises’ claims against Urbina were presented to a Bowie County jury, which

determined that Urbina’s negligence, if any, did not proximately cause William’s injury. The trial

court entered a take-nothing judgment on the Curtises’ claims against Urbina, and the Curtises do

not appeal that portion of the judgment. 3 However, they appeal the directed verdict rejecting their

claims against Christus.


3
 As a result of the jury’s verdict, which found either that Urbina was not negligent or that his negligence did not
proximately cause William’s injuries, or both, Christus argues that the Curtises were not harmed by the entry of a
                                                        5
         “On appeal, the appellant must challenge all independent grounds supporting the

judgment.” Shirley v. Butcher, No. 06-16-00089-CV, 2017 WL 1538164, at *3 (Tex. App.—

Texarkana Apr. 27, 2017, pet. denied) (mem. op.) (citing Gross v. Carroll, 339 S.W.3d 718, 723

(Tex. App.—Houston [1st Dist.] 2011, no pet.); Britton v. Tex. Dep’t of Criminal Justice, 95

S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.)). “If he does not do so, the

appellate court will affirm the judgment of the trial court.” Id. (citing Gross, 339 S.W.3d at 723;

Britton, 95 S.W.3d at 681); see Taylor v. Medtox Diagnostic, Inc., No. 06-17-00032-CV, 2017

WL 4818623, at *5 (Tex. App.—Texarkana Oct. 26, 2017, pet. denied) (mem. op.); Oliphant Fin.

L.L.C. v. Hill, 310 S.W.3d 76, 77–78 (Tex. App.—El Paso 2010, pet. denied). This rule applies to

directed verdicts. See Rush v. Ace Am. Ins. Co., No. 01-18-00402-CV, 2019 WL 2932846, at *6

(Tex. App.—Houston [1st Dist.] July 9, 2019, no pet. h.) (mem. op.); Barton v. Garza, No. 04-14-

00207-CV, 2015 WL 1393428, at *1 (Tex. App.—San Antonio Mar. 25, 2015, no pet.) (mem.

op.); Woodrum v. Long, 527 S.W.2d 281, 283 (Tex. App.—Austin 1975, no writ).

         In their appellate brief, the Curtises argue that the trial court erred in granting the directed

verdict because there was conflicting evidence as to whether an on-site neurologist was available

at the time of William’s hospitalization and whether Christus misrepresented that its stroke center



directed verdict against them. While courts do not generally engage in harm analysis if there is error in the granting
of a directed verdict, “the Texas Supreme Court has held that a procedural error in granting a directed verdict before
the close of evidence did not require reversal where no harm was shown.” Flying J Inc. v. Meda, Inc., 373 S.W.3d
680, 689 (Tex. App.—San Antonio 2012, no pet.) (quoting State Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9, 12
(Tex. App.—San Antonio 2009, pet. denied) (citing Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003));
see Cooper v. Lyon Fin. Servs., Inc., 65 S.W.3d 197, 209 (Tex. App.—Houston [14th Dist.] 2001, no pet.); see also
TEX. R. APP. P. 44.1(a)(1) (“No judgment may be reversed on appeal on the ground that the trial court made an error
of law unless the court of appeals concludes that the error complained of . . . probably caused the rendition of an
improper judgment . . . .”); G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam) (“The
[harmless error] rule applies to all errors.”). Here, as explained below, error is forfeited.
                                                          6
was staffed with an on-site neurologist. These arguments address the negligence element of

breach. While the brief recites the petition’s claims that Christus’ alleged negligence proximately

caused William’s injuries, the brief fails to adequately address the trial court’s directed verdict on

the element of proximate cause. 4

         “Proximate causation embraces two concepts, both of which must be present: the cause in

fact of an event and the foreseeability of that event.” Hall v. Huff, 957 S.W.2d 90, 96 (Tex. App.—

Texarkana 1997, pet denied). “‘Cause in fact’ is an act or omission that was a substantial factor

in bringing about the injury, and without it, harm would not have occurred.” Id. “[M]erely creating

the condition that makes harm possible falls short as a matter of law of satisfying the substantial

factor test.” IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 800 (Tex.

2004). “‘Foreseeability’ means that the actor, as a person of ordinary intelligence and prudence,

should have anticipated the dangers that his negligent act created for others.” Hall, 957 S.W.2d at

96. Once a defendant presents evidence of a superseding cause, “[t]he burden then shifts to the

plaintiff to raise a fact issue by presenting controverting evidence” that the intervening conduct

was foreseeable. Phan Son Van v. Peña, 990 S.W.2d 751, 754 (Tex. 1999).

         By its ruling, the trial court necessarily found that cause-in-fact was not established,

Christus conclusively established that Urbina’s conduct was an intervening superseding cause of

William’s injuries, the harm was not foreseeable to Christus, and Christus merely created the

condition that made the harm possible. The Curtises’ appellate brief does not address the trial


4
 “The appellant’s brief ‘must contain a clear and concise argument for the contentions made, with appropriate citations
to authorities and to the record.’” In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App.—Texarkana 2010, no pet.)
(quoting TEX. R. APP. P. 38.1(i)). “This requirement is not satisfied by merely uttering brief, conclusory statements
unsupported by legal citations.” Id.
                                                          7
court’s ruling on but-for causation, intervening superseding cause, or whether Urbina’s neck

maneuver and Curtis’ injuries were foreseeable to Christus. 5 See Stanfield v. Neubaum, 494

S.W.3d 90, 102 (Tex. 2016) (citing Phan Son Van, 990 S.W.2d at 754).

         In response to Christus’ argument that the Curtises forfeited any error in the trial court’s

directed verdict by neglecting to address proximate cause in their opening brief, the Curtises have

filed a rely brief attempting to alleviate the deficiencies. “[T]his argument comes too late, and we

do not consider it.” Tijerina v. Wysong, No. 14-15-00188-CV, 2017 WL 506779, at *4 (Tex.

App.—Houston [14th Dist.] Feb. 7, 2017, no pet.) (mem. op.); see TEX. R. APP. P. 38.1(f), 38.3;

Bray v. Fenves, No. 06-15-00075-CV, 2016 WL 3083539, at *5 (Tex. App.—Texarkana Mar. 24,

2016, pet. denied) (mem. op.). This is because “[a]n appellant is not permitted to raise an issue in

a reply brief that was not included in the original brief.” In re Marriage of Bills, No. 06-14-00056-

CV, 2014 WL 5585778, at *3 n.5 (Tex. App.—Texarkana Nov. 4, 2014, no pet.) (mem. op.) (citing

Tipps v. Chinn Expl. Co., No. 06-13-00033-CV, 2014 WL 4377813, at *4 (Tex. App.—Texarkana

2014, no pet.) (mem. op.)).




5
 The terms “intervening superseding cause” and “foreseeability” appear nowhere in the Curtises’ opening brief. It
states that “‘contraindicated vigorous neck maneuvers’ by a non-specialist . . . caused the injury” and recites Malik’s
testimony that Urbina’s conduct fell below the neurologist standard of care to cause William’s injuries. Instead of
showing how Christus’ negligence did anything other than create the condition that made the harm possible, the
Curtises’ brief actually supported the trial court’s findings on but-for cause and intervening superseding cause.
          In their reply brief, the Curtises argue that their conclusory mention of the phrase “proximate cause” in the
opening brief saves them from waiver. However, their recitation of evidence that Urbina caused William’s injury
does not save them from waiver of the issues of whether (1) the trial court erred in finding they did not bring sufficient
evidence at trial that Christus’ actions were a substantial factor in bringing about William’s injury, (2) the trial court
erred in finding Urbina’s conduct was an intervening superseding cause, and (3) they presented any evidence that
William’s injuries were foreseeable to Christus.

                                                            8
         Because the Curtises failed to challenge all grounds of the trial court’s directed verdict in

their opening brief, they forfeited their point of error complaining of the trial court’s directed

verdict.

         We affirm the trial court’s judgment. 6




                                                        Josh R. Morriss, III
                                                        Chief Justice



                                            DISSENTING OPINION

         For more than a century, the Texas Supreme Court has advised appellate courts to give

appellate rules “a reasonable and practical construction, and not one calculated to embarrass suitors

in the appellate tribunal by unnecessary restrictions.” Clarendon Land Inv. Agency v. McClelland

Bros., 23 S.W. 1100, 1103 (Tex. 1893) (on rehearing).                          We should favor any “arguable

interpretation” of the rules that would support a merits disposition.                              Ryland Enter. v.

Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011). For this reason, “disposing of appeals for

harmless procedural defects is disfavored.” Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162

(Tex. 2012) (citing Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam); Verburgt v.


6
 By separate point of error, the Curtises also argue that the trial court erred in excluding evidence that Christus was
negligent in relying on teleneurology. The trial court’s ruling came after Christus argued that the petition never alleged
that Christus was negligent for relying on teleneurology and there was no evidence that relying on teleneurology fell
below the standard of care for Christus. The Curtises’ expert, Malik, testified that Christus was not negligent to have
a teleneurologist and, in the offer of proof submitted by the Curtises, stated that he was not “knocking teleneurology,”
which “was a good system for small, rural hospitals,” but that “in-house neurology [wa]s a better option.” Our ruling
on the Curtises first point of error is dispositive.
                                                            9
Dorner, 959 S.W.2d 615, 616 (Tex. 1997)). Instead, “[a]ppellate briefs are to be construed

reasonably, yet liberally, so that the right to appellate review is not lost by waiver.” Id. (quoting

Perry, 272 S.W.3d at 587). Appellate courts must treat the statement of an issue “as covering

every subsidiary question that is fairly included.” TEX. R. APP. P. 38.1(f). Because the majority

opinion fails to apply these principles in resolving this appeal based on briefing waiver, I

respectfully dissent.

       “[I]t is our practice to construe liberally points of error in order to obtain a just, fair and

equitable adjudication of the rights of the litigants.” Sterner v. Marathon Oil Co., 767 S.W.2d

686, 690 (Tex. 1989). Yet, the majority opinion finds that the Curtises’ brief fails to adequately

address the trial court’s directed verdict on the element of proximate cause. I disagree. Under the

heading “The Record Contains Legally Sufficient Proof That Christus St. Michael Acted

Negligently and Proximately Caused Bill Curtis’s Brain Injury,” the brief states:

       The Curtises’ theory of the case against Christus St. Michael was that the hospital
       was negligent “in that it failed to have on-site neurology services while
       simultaneously touting its certified primary stroke program without disclosing the
       lack of on-site neurology.” This theory encompassed claims of both medical
       negligence on the part of the hospital and negligent misrepresentation, each of
       which was a proximate cause of Bill Curtis’s brain injury. The hospital’s
       negligence in failing to have a neurologist present proximately caused Bill Curtis’s
       brain injury because had a neurologist been present, he or she would have provided
       “timely indicated treatment” rather than the “contraindicated vigorous neck
       maneuvers” by a nonspecialist that caused the injury. Additionally, the Curtises
       alleged, “[b]ut for the misleading advertising, Mr. Curtis would have been at
       Wadley [Regional Medical Center] under the care of a board-certified neurologist
       who was physically present and who would have performed a careful and thorough
       neurologically focused physical examination. The Dix Hallpike and Epley
       maneuvers would never have been performed on Mr. Curtis and he would not have
       been injured.”


                                                 10
(record citations omitted). A fair and liberal reading of the Curtises’ brief shows that, although

they could have presented more cogent arguments and better citations, their briefing was not so

poor that their arguments related to proximate cause are unintelligible or unworthy of merits

review.

          Moreover, we should not affirm a judgment based on a waiver or forfeiture by an appellant

when the appellee has, in effect, waived the basis on which we are affirming. Here, I do not believe

Christus asserted that the general subject of proximate cause was waived. Instead, they challenged

only whether the Curtises’ brief waived the issues of intervening superseding cause for both of

their negligence claims and cause-in-fact on their advertising claim. In its reply brief, the Curtises

explained that they did not waive proximate cause because the general subject of proximate cause

was raised in its opening brief and intervening superseding cause is a subsidiary issue that is simply

one element to consider when determining proximate cause. Therefore, I believe that the Curtises

correctly argued that the trial court’s ruling on intervening superseding cause was not an

independent ground for its directed verdict and was not required to be discussed in their opening

brief.




                                                 11
       Rather than choosing to narrowly read the Curtises’ opening brief, I would address the

merits of the argument they fully addressed in their reply brief. For this reason, I respectfully

dissent.




                                                    Jack Carter
                                                    Justice

Date Submitted:       August 8, 2019
Date Decided:         August 30, 2019




                                               12
