Opinion issued September 22, 2015




                                        In The
                                  Court of Appeals
                                       For The
                                First District of Texas
                            ————————————
                                NO. 01-12-00578-CV
                       ———————————
   JIM P. BENGE, M.D., AND KELSEY-SEYBOLD MEDICAL GROUP,
                         PLLC, Appellants
                               V.
                   LAUREN WILLIAMS, Appellee

                     On Appeal from the 164th District Court
                              Harris County, Texas
                        Trial Court Case No. 2010-52657

OPINION DISSENTING TO DENIAL OF EN BANC RECONSIDERATION

        I respectfully dissent to the Court’s denial of en banc reconsideration in this

case.

        The Texas Supreme Court has repeatedly reaffirmed its commitment to the

submission of broad form questions, and has rejected attempts to expand the

presumed harm analysis of Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378

(Tex. 2000), beyond those cases involving multiple theories of liability and
multiple elements of damages. See, e.g., Thota v. Young, 366 S.W.3d 678, 688–89

(Tex. 2012) (explaining Casteel and its progeny and refusing to extend presumed

harm analysis to alleged combination of errors of submitting contributory

negligence question and inferential rebuttal instruction). Even if the trial court

erred in denying Dr. Benge’s requested instruction (or a similar one limiting the

jury’s consideration of Williams’s evidence about what Dr. Benge told her

regarding Dr. Giacobbe to assessing Dr. Benge’s credibility for determining the

ultimate issue in the case), such error would not automatically trigger a situation

where we must presume the error was harmful. See id. at 693. As the court in

Thota noted, “[i]f presumed harm analysis were required, then our fundamental

commitment to submitting broad-form questions, whenever feasible, would

routinely be discarded for separate granulated submissions.” Id. This view is also

consistent with the Texas Supreme Court’s recognition that “in most cases where a

trial court errs by refusing to give a proposed instruction the harm analysis will be

based on whether the refusal probably caused the rendition of an improper

judgment.” Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851,

865 (Tex. 2009).

      The complained-of evidence was an indispensable part of Williams’s case

and would have come in under any presentation of the case.                 Williams

unequivocally stated that Dr. Benge’s testimony that she had “g[iven him] consent

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to have Dr. Giacobbe participate in the surgery” was false, and accused Dr. Benge

of being intentionally deceitful and unethical in violation of the American Medical

Association’s Code of Medical Ethics.        In support of her negligence claim,

Williams introduced evidence regarding Dr. Giacobbe’s role in the surgery in order

to attack Dr. Benge’s credibility with regard to whether he acted unethically and

deceptively. A jury’s consideration of evidence of duty, breach, causation, and

injury in determining a physician’s liability for breach of the standard of

professional care and damages for a professional negligence claim is not

tantamount to consideration of commingled valid and invalid theories of liability.

Submission of an invalid theory of liability involves a trial court’s error in

affirmatively instructing a jury to consider erroneous matters. See Hawley, 284

S.W.3d at 864–65; see also Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753,

756 (Tex. 2006) (“We specifically limited our holdings in Casteel and Harris

County [v. Smith, 96 S.W.3d 230 (Tex. 2002)] to submission of a broad-form

question incorporating multiple theories of liability or multiple damage elements.”)

(emphasis added).

      Because the panel majority’s holding is incompatible with Casteel, Hawley,

and Thota, I respectfully dissent to the denial of en banc reconsideration. See TEX.

R. APP. P. 41.2(c) (“extraordinary circumstances require en banc consideration”).




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                                            Russell Lloyd
                                            Justice


Panel consisted of Justices Keyes, Bland, and Brown.

En banc reconsideration was requested. See TEX. R. APP. P. 49.7.

Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale,
Brown, Huddle, and Lloyd participated in the vote to determine en banc
reconsideration.

A majority of the Court voted to deny en banc reconsideration. See TEX. R. APP. P.
49.7.

Justice Jennings, joined by Justices Keyes and Higley, dissenting to the denial of
en banc reconsideration with separate opinion.

Justice Keyes, dissenting to the denial of en banc reconsideration with separate
opinion.

Justice Lloyd, dissenting to the denial of en banc reconsideration with separate
opinion, joined by Justices Keyes and Higley.

Justice Brown, joined by Justice Bland, writing a supplemental opinion on motion
for en banc reconsideration.




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