Motion for En Banc Reconsideration Denied and Concurring Opinion filed
May 16, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00917-CV

  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

      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.




      1
          Emphasis added.

                                          2
      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.



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                                    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

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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 raising this
argument, which had not been made in the trial court or the court of appeals. Pet’r’s
Br. in Reply, June 25, 2013, at 4.

       The supreme court expressly rejected Greene’s contention that the insurer was
barred from raising a new argument. Greene, 446 S.W.3d at 764 n.4. Moreover, the
court treated the new argument as persuasive support for the insurer’s position. See
id. at 763, 763–64, 766, 769, and 770. The court has since applied the principle in
an appeal from a ruling on the sufficiency of an expert report in a health-care liability
claim, allowing parties to raise arguments not raised at trial or in the intermediate
appellate court. See Miller, 536 S.W.3d at 513 n.5 (Tex. 2017).

       As in Greene, Addison’s position that Methodist is vicariously liable as
alleged for the student nurse’s conduct is a new argument concerning the issue
presented on appeal. And if, as in Greene, a court can consider a new argument
raised nearly a year after the court of appeals ruled, then surely a court can consider


       2
         All of the documents filed in Greene’s appeal to the Supreme Court of Texas are available
on the court’s website, http://www.txcourts.gov/supreme/, by entering the appellate case number
(12-0867) in the field “FIND MY CASE” at the center of the top of the page.

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an argument raised at the same time that the case was submitted to the court of
appeals for decision.

A.     Briefing Waiver Does Not Bar the Court’s Consideration of the New
       Argument.3
       Methodist nevertheless asserted in its post-submission brief that Addison
cannot raisea new argument during oral argument before this Court. In support of
this position, Methodist relies on briefing-waiver cases that predate Greene. I do not
find the cited cases persuasive on this point. The appellee in Greene was free to
make, and the Supreme Court of Texas was free to consider, an argument that was
never raised in the intermediate appellate court at all, but instead was raised for the
first time in a response brief on the merits before the state’s court of last resort. If
the Supreme Court could consider an argument raised after a much longer delay, but
this Court could not consider a new argument raised after a briefer delay, then the
paradoxical result would be not that Addison waited too long to raise a new
argument, but that she did not wait long enough.

       I do not read the law to require this result. I instead read Greene and its
progeny as authorization to consider a belatedly raised argument.

B.     Addison Did Not Abandon the New Argument.

       Methodist also contended in its post-submission brief that because Addison
did not argue in the trial court or in her appellate brief that the experts’ reports
vicariously implicated Methodist through the actions of the student nurse, Addison
had abandoned any such argument. To abandon an argument means to “give [it] up
completely.”      NEW OXFORD AMERICAN DICTIONARY 2 (Angus Stevenson &

       3
         The question presented by Methodist’s motion for en banc reconsideration is whether this
Court erred in considering an argument that Addison raised for the first time during oral argument.
I conclude only that the Court properly may consider such a belated new argument; I express no
opinion as to whether the Court must do so.

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Christine Lindberg eds., 3d ed. 2010). Thus, we say that a plaintiff abandoned a
claim in the trial court if the plaintiff failed to pursue the claim to judgment, and we
say that a party abandoned an argument on appeal if the party fails to re-urge on
appeal an argument that the party raised in the court below. But a litigant cannot
abandon a position it has never taken. It was at oral argument that Addison first
contended the experts’ reports are sufficient to implicate Methodist through the
student nurse’s conduct; thus, she could not have abandoned that argument before
oral argument, as Methodist contends.

C.      Addison is Not Equitably Estopped from Asserting the New Argument.

        In a similar vein, Methodist argues that Addison is equitably estopped from
arguing that the experts’ reports implicate Methodist for the student nurse’s conduct.
I disagree that the elements of equitable estoppel, which are as follows, have been
satisfied:

        The elements of equitable estoppel arising from inconsistent positions
        taken in judicial proceedings are (1) a party takes clearly inconsistent
        positions in the same or separate proceedings; (2) the position first
        asserted was successfully maintained or upheld; (3) the other party
        relied on the position first asserted; (4) adoption of the later position
        would result in injury or prejudice to the adverse party; and (5) where
        more than one action is involved, there is an identity of parties.
In re Estate of Loveless, 64 S.W.3d 564, 577–78 (Tex. App.—Texarkana 2001, no
pet.)

        Addison has not taken “clearly inconsistent” positions, as can be seen when
comparing Methodist’s objections to Addison’s responses. Methodist objected that
the experts’ reports were inadequate 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.” In those objections, however, Methodist erroneously
stated that “Dr. Cohen’s only mention of the hospital’s standard of care or possible

                                           7
breach thereof” were Cohen’s statements that (1) experts agree that “an occurrence
report should be fulfilled for quality management”; (2) he “must question whether
an occurrence report or quality improvement project was undertaken” regarding the
intra-operative awareness of Addison or of a prior patient, and “[i]f not, that is a
deviation of the hospital standard of care”; and (3) “one must question whether the
hospital pharmacists provided ‘standardized’ pre-prepared medications in syringes
for use by anesthesiologists,” which “might indicate that the [medication]
mistake . . . occurred in the pharmacy.” Methodist concluded that “Cohen does not
state that anything the hospital defendants (or any hospital employee) did or failed
to do caused the injuries to Ms. Addison.” Despite Methodist’s global statement,
Methodist did not identify any way in which Cohen’s report was insufficient as to
the student nurse.

      In response to Methodist’s objections based on the three Cohen statements
Methodist claimed were inadequate, Addison argued that the Cohen report was
sufficient to implicate hospital pharmacy personnel for whom Methodist would be
vicariously liable. That argument—that the experts’ reports meet the statutory
requirements applicable to Addison’s claims against Methodist that are based on the
pharmacist’s conduct—is not inconsistent with the argument that the reports also
meet the statutory requirements as to her claims against Methodist based on the
student nurse’s conduct. Her argument that the student nurse was Baylor’s student
or employee is not inconsistent with the argument that the nurse also was
Methodist’s employee or actual or ostensible agent.

      Regarding the second element of equitable estoppel, it appears to be
Methodist’s position that the trial court denied Methodist’s motion to dismiss
because it agreed with Addison’s argument that the experts’ reports were sufficient
to vicariously implicate Methodist for the conduct of its pharmacy personnel. But

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we cannot make that assumption. It is at least as likely that the trial court denied the
motion because the experts’ reports were sufficient to vicariously implicate
Methodist for the conduct of the student nurse. The trial court was required to
consider the vicarious-liability allegations of Addison’s pleading, because as the
Supreme Court of Texas has stated, “[A]n expert report that adequately addresses at
least one pleaded liability theory satisfies the statutory requirements, and the trial
court must not dismiss in such a case.” Certified EMS, Inc. v. Potts, 392 S.W.3d
625, 632 (Tex. 2013) (emphasis added); see also Gardner v. U.S. Imaging, Inc., 274
S.W.3d 669, 672 (Tex. 2008) (per curiam) (“[T]o the extent the Gardners allege that
SADI is liable only vicariously for Dr. Keszler’s actions, the expert report
requirement is fulfilled as to SADI if the report is adequate as to Dr. Keszler.”).
Having presumably examined the pleadings as required, the trial court would not
have abused its discretion in finding that the experts’ reports were sufficient to
vicariously implicate Methodist for the conduct of its alleged agent, the student
nurse. See Potts, 392 S.W.3d at 632 (explaining that if the claimant has alleged that
a health-care provider is vicariously liable, then an expert report is sufficient as to
that provider if it is sufficient as to the alleged agent or employee). It is unnecessary
to address the remaining elements of equitable estoppel.

      Finally, Methodist disputes neither that the experts’ reports meet the statutory
requirements regarding the student nurse’s conduct, nor that Addison alleged that
Methodist is vicariously liable for the student nurse’s conduct under theories of
agency and respondeat superior. Thus, the dispositive question is not whether
Addison can now rely on her pleaded allegation that the student nurse is the agent or
employee of Baylor “and/or” Methodist, but whether the trial court could rely on
that allegation. The answer is yes, and if a trial court properly may consider all of
the claimant’s vicarious-liability allegations, then so too may the reviewing court.


                                           9
      I therefore concur in the denial of Methodist’s motion for en banc
reconsideration.




                                     /s/    Tracy Christopher
                                            Justice



The En Banc Court consists of Chief Justice Frost and Justices Christopher, Wise,
Bourliot, Zimmerer, Spain, Hassan, and Poissant (J. Jewell not participating).




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