Young v. Thota

ANNE GARDNER, Justice,

dissenting.

I think the trial court got the jury charge right. But even assuming error in submission of both contributory negligence and the new and independent cause instruction, I disagree that the “presumed harm” analysis of Casteel applies. The jury separately found “no” as to whether any negligence of Dr. Thota was a proximate cause of William R. (“Ronnie”) Young’s injury. Examination of the entire record shows thát the jury was faced with a “battle of experts” as to Dr. Thota’s negligence. It is probable that the jury resolved the conflicts in testimony in favor of Dr. Thota in refusing to find that he was negligent. There is no clear indication that the jury was influenced by the new and independent cause instruction. I would hold that even if there was error in the charge, it probably did not result in an improper judgment. Therefore, I must dissent.

I. BACKGROUND INFORMATION

It was undisputed that Ronnie had extensive pre-existing medical conditions in-*842eluding chrome obstructive pulmonary disease, cardiac disease with hypertension, and a completely occluded right coronary artery diagnosed in 1992 when he had a previous cardiac catheterization. As the majority notes, he had also been diagnosed with polycythemia vera (“PV”), a rare, incurable bone marrow disorder resulting in overproduction of blood cells, for which he had been treated with bi-monthly phlebotomy and numerous medications, including interferon.

Ronnie presented to Dr. Thota with complaints of severe angina. Dr. Thota recommended the second diagnostic cardiac catheterization in February 2002 to determine if a new blockage had developed. That Dr. Thota’s recommendation was reasonable and appropriate was undisputed. Preoperative laboratory studies were acceptable for Ronnie to undergo the procedure. According to Dr. Cooper, Ronnie’s treating hematologist before and after the procedure performed by Dr. Thota, any person with PV will have an increased risk of both bleeding and clotting complications even if everything is optimally controlled.

Ronnie did not die from the complications and systems failures that followed the cardiac catheterization by Dr. Thota. PV is a form of cancer; if a person lives long enough with it, they will develop leukemia, as Ronnie did. Ronnie was diagnosed with leukemia in October 2004 and died from that disease on March 10, 2005. His widow prosecuted this suit as a survival action on behalf of his estate.

II. CONTRIBUTORY NEGLIGENCE WAS PROPERLY SUBMITTED.

A. The “injury” was not the “tear” in the artery.

As a preliminary matter, I disagree that the “injury” to Ronnie that was the basis for liability sought against Dr. Thota was the “tear” in Ronnie’s artery. There was no evidence that Dr. Thota caused the tear or that its existence was a causal factor in any of Ronnie’s bleeding or subsequent complications. Appellant’s theory of liability was that Dr. Thota incorrectly placed the puncture site for the catheterization. The “injury” was extensive bleeding from the puncture site into Ronnie’s retroperito-neal cavity and the cascade of complications he suffered thereafter. The “tear” was relevant only because Dr. Walker’s report stated that he repaired a “tear” in Ronnie’s artery after Ronnie returned to the hospital, from which the expert witnesses sought to determine the location of the puncture site.

This distinction is important. Dr. Tho-ta’s theory of Ronnie’s contributory negligence was that Ronnie failed to follow his instructions to call him or to return to the hospital when he began to suffer severe pain. The majority says this conduct merely increased his injuries as opposed to causing the “accident” or “occurrence.” In so doing, the majority focuses on the word “tear” to try to pinpoint the “accident” or “occurrence.”

B. The jury was not asked about an “accident” or “occurrence.”

Despite its protestations otherwise, I believe the majority confuses “injury” with “accident” or “occurrence” in analogizing this case to Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 449 (Tex.1967) (holding exclusionary instruction on mitigation rather than contributory negligence question proper based on plaintiffs failure to follow medical advice that merely aggravated damages received in auto accident), and Kerby v. Abilene Christian College, 503 S.W.2d 526, 528 (Tex.1973) (holding trial court erroneously submitted contributory negligence instead of mitigation instruction where plaintiffs negligence in leaving van door open did not contribute to *843cause collision but, at most, could only-have increased or added to extent of loss or damage). Jury Question No. One on liability (as well as the conditioned and unanswered questions as to apportionment of responsibility and damages) did not ask about any “accident” or “occurrence” but expressly inquired as to whether negligence of Dr. Thota or Ronnie proximately caused Ronnie’s “injury.”

C. Contributory negligence that contributed to the “injury” was properly submitted.

This case more closely resembles Elbaor v. Smith, 845 S.W.2d 240, 245 (Tex.1992). Unlike the facts in Moulton and Kerby, the supreme court in Elbaor emphasized that the “accident” in Elbaor “equates to the medical problem complained of: Ms. Smith’s infected ankle. Her conduct [refusing to take antibiotics as ordered] arguably did contribute to the infection.... [TJhere might have been no infection, and thus no claim for medical malpractice, had Ms. Smith followed her doctor’s instructions.” 845 S.W.2d at 245. Because Dr. Elbaor pleaded that Ms. Smith was con-tributorily negligent in refusing to take her antibiotics and because there was evidence supporting his assertion that her refusal contributed to her injury, the court held that a contributory negligence question should have been submitted, rather than an instruction on mitigation of damages. Id.

Like the infection of Ms. Smith’s ankle in Elbaor, any “accident” here equated to Ronnie’s injury, the retroperitoneal bleeding and subsequent complications, not the “tear.” Ronnie’s conduct arguably did contribute to his injury, i.e., the bleeding and subsequent consequences, like Ms. Smith’s conduct in Elbaor and unlike that in Moulton and Kerby.

The trial comb correctly followed the current Pattern Jury Charge standard questions for negligence and contributory negligence, using “injury,” rather than “occurrence” or “accident” in this case.1 The jury question recommended by the Pattern Jury Charge provides for alternatives of “occurrence,” “injury,” or “occurrence or injury” in the form for submitting contributory negligence when there is evidence of a plaintiffs negligence that is injury-causing or injury-enhancing but not occurrence-causing. Comm, on Pattern Jury Charges, State Bar of Texas, Texas Pattern Jury Charges: General Negligence & Intentional Personal Torts PJC 4.1 & cmt. (2006); see also Comm, on Pattern Jury Charges, State Bar of Texas, Texas Pattern Jury Charges: Medical Malpractice PJC 51.1 & cmt. (2006). The PJC Committee’s comments state that

use of ‘occurrence’ or ‘injur/... could affect a case in which there is evidence of the plaintiffs negligence that is ‘injury-causing’ ... but not ‘occurrence-causing’: for example, carrying gasoline in an unprotected container which exploded in the crash ... or failing to follow doctor’s orders during recouery, thereby aggravating the injuries (post-accident negligence). In such a case the jury should not consider this negligence in answering the [liability and proportionate responsibility questions] if ‘occur*844rence’ is used, while it should consider the negligence if ‘injury’ is used.

PJC 4.1 cmt. (emphasis added).2 The PJC comments also state that, if the liability question for negligence and contributory negligence is submitted with the term “injury,” rather than “occurrence” or “accident,” the exclusionary instruction for mitigation of damages should not be submitted. PJC 4.1, 8.9 cmt.; see also PJC 51.1, 80.9 cmt. Under the evidence in this case, the issue was whose negligence, if any, caused or contributed to the “injury,” not who or what caused an “accident” or “occurrence.”

D. Ample evidence suppox-ted the submission and finding of contributory negligence.

In Elbaor, the supreme court recognized a duty of cooperation that patients owe treating physicians who assume the duty to care for them. 845 S.W.2d at 245. The court held that evidence of the patient’s failure to take the antibiotics prescribed for her required submission of a question on contributory negligence. Id. The duty to cooperate also includes the duty to return for evaluation and possible treatment if complications arise post-discharge. See Jones v. Lurie, 32 S.W.3d 737, 743 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding evidence plaintiff ignored physician’s orders to remain in psychological treatment centers and hospitals factually sufficient to support 100 percent contributory negligence finding); Eoff v. Hal & Charlie Peterson Found., 811 S.W.2d 187, 191 (Tex.App.-San Antonio 1991, no writ) (holding evidence factually sufficient to support 100 percent contributory negligence finding based on evidence plaintiff voluntarily left hospital before receiving emergency treatment, ignored advice of physician to return to ER, and failed to obtain medical care for seven hours after leaving hospital).

Ronnie had previously undergone a cardiac catheterization and was aware of normal postprocedure discomforts. He was given written discharge instructions to return if he had any of several listed symptoms, including “pain” or “any problems.” In his deposition, Ronnie admitted he ex-peilenced a severe pain in his groin at 6:00 p.m., so severe he had to bend over and hold himself, and that it was obvious to his eleven-year-old son, who reported to his mother that Ronnie “went down.” He testified that shortly afterwards, he felt worse and experienced backache and nausea.

Those symptoms were different from what Ronnie had experienced after his first catheterization. By 9:00 p.m., he was hurting so much in his back and stomach that he could not get out of his recliner when his wife got home. The pain worsened until he fell out of the recliner in “excruciating pain” at about 11:00 p.m., screamed to his wife, and lay in a fetal position. Despite the progression of symptoms, Ronnie did not call Dr. Thota or seek help and, even at 11:00 p.m., refused his wife’s pleas to call a neighbor or 9-1-1. According to the ambulance records, it was 12:43 a.m. when they received the call to respond.

Dr. Thota testified that, with the knowledge Ronnie possessed about his condition as well as from his prior cardiac catheteri-zation, he should have called for help by *8456:00 p.m. Dr. Doherty agreed that, with the problems of nausea and backache Ronnie was experiencing, sometimes referred to as “flank pain,” Ronnie should have called for help at 6:00 p.m. or at least by 9:00 p.m. Dr. Doherty further testified on cross-examination that, based upon his review of the cath log notes, Dr. Thota’s notes, and those of the nurses who cared for Ronnie after the procedure, there was a ninety-nine percent chance that Ronnie was not bleeding when he was discharged at 2:40 p.m. Dr. Doherty believed the bleeding started at about 9:00 p.m. and stated Ronnie had lost three units of blood by the time he got to the operating room. If Ronnie had gone to the hospital, sought medical care, or called Dr. Thota at 6:00 p.m., or even by 9:00 p.m., Dr. Doherty said, he likely would have avoided or lessened all of the serious complications, including the shock leading to the coagulo-pathic state that led to the additional problems, including Ronnie’s gangrenous gallbladder, which required five months of hospitalization and recovery.

Dr. McCracken, Appellant’s causation expert, also acknowledged that Ronnie probably would not have experienced any of the complications if the bleeding had been recognized earlier and treated. Moreover, Dr. Doherty agreed that if Ronnie had gone to the hospital at 6:00 p.m., he could have had the “bleeder” repaired as it was or intravascularly with a stent, for which Dr. Thota had the necessary training.

I would hold that the trial court correctly submitted the PJC’s standard jury question on negligence and contributory negligence in Jury Question No. One, rather than an exclusionary instruction on mitigation of damages, that there was ample evidence that Ronnie’s failure to follow Dr. Thota’s instructions to call or to return to the hospital if he had any problems or pain supported the submission of contributory negligence, and that Ronnie’s contributory negligence was a proximate cause of his injury.

III. HARM ANALYSIS

A. Casteel “presumed error” analysis does not apply.

Even if the trial court erred by submitting both the jury question on contributory negligence and the instruction on new and independent cause, I disagree with the majority’s sua sponte application of the “presumed harm” analysis adopted in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000).3 In Casteel, the supreme court held that “[wjhen a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant’s objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury’s finding” because the appellant is thereby prevented from properly demonstrating the consequences of the erroneous submission on appeal. Id. at 389; see also Tex.R.App. P. 44.1(b); 61.1(b).

In Harris County v. Smith, the court extended Casteel to a broad-form question that improperly commingled damage elements when one of those elements was supported by no evidence. 96 S.W.3d 230, 235 (Tex.2002). In Romero v. KPH Consol., Inc., the court further extended Cas*846teel to a single broad-form question that included a theory of liability supported by no evidence. 166 S.W.3d 212, 227-28 (Tex.2005).

The majority says we cannot determine whether the jury truly found Dr. Thota not negligent or improperly relied on the contributory negligence submission. I disagree. The theories of negligence and contributory negligence here were not improperly “commingled.” There were two separate answer lines provided to the jury to answer “yes” or “no” as to Dr. Thota and “yes” or “no” as to Ronnie. The jury answered “no” as to Dr. Thota and “yes” as to Ronnie. In contrast, in Casteel, the jury question instructed the jury on thirteen independent grounds of liability but requested only a single answer. 22 S.W.3d at 387. Similarly, in Harris County, the damages question complained of instructed the jury that it could consider various elements of damages, including an element supported by no evidence, in awarding a single amount of damages. 96 S.W.3d at 231. Likewise, in Romero, the jury was improperly allowed to apportion responsibility among the defendants in a single answer based upon either an unchallenged finding of ordinary negligence or an affirmative finding on a theory of malicious credentialing for which there was no evidence. 166 S.W.3d at 215. The jury’s single answer in each of those cases is what made it impossible to determine whether the verdict was based upon the improperly submitted theory or element of damages.

Here, the negligence of Dr. Thota and that of Ronnie were submitted “separately,” albeit in the same question. We are thus able to determine that the jury’s finding as to Dr. Thota was not based on an improper submission of contributory negligence because there are two separate answers. Combining two questions into one with separate answer lines simply does not constitute a commingling that triggers the “presumed harm” analysis.'4

I also cannot agree that the jury question here submitted two competing “theories of liability.” Contributory negligence is not a theory of liability; it is an affirmative defense. See Tex.R. Civ. P. 94. The jury question in this case was a universally used, standard broad-form submission of only one theory of liability — the negligence of Dr. Thota — along with the defense of contributory negligence, as recommended by the PJC. Comm, on Pattern Jury Charges, State Bar of Texas, Texas Pattern Jury Charges: Medical Malpractice PJC 51.3 (2006). The supreme court has never extended Casteel to defensive theories.

In Bed, Bath & Beyond v. Urista, 211 S.W.3d 753, 757 (Tex.2006), the supreme court noted that it had limited its holdings in Casteel and Harris County to “multiple theories of liability or multiple damage elements” and that it had “never extended a presumed harm rule to instructions on defensive theories” and refused to extend Casteel to the “defensive theory” of unavoidable accident, stating: “[Ujnavoidable accident is not an alternative theory of *847liability but is ‘an inferential rebuttal issue

As to the inferential rebuttal instruction on new and independent cause, the majority recognizes that Urista held that improper submission of an inferential rebuttal instruction is not subject to the “presumed error” analysis under Casteel. But it then concludes that we must nevertheless presume harm here because we cannot determine whether the jury improperly relied on the new and independent cause instruction alone or combined with the contributory negligence submission. I believe the majority opinion conflicts with both Casteel and Urista in applying a “presumed harm” analysis based on some hybrid theory. Even assuming that contributory negligence and new and independent cause were both improperly submitted, two errors that do not trigger a “presumed harm” analysis do not equal one that does. I think we must apply the traditional harm analysis. See Tex. R.App. P. 44.1(a). Under that analysis, error in the jury charge requires reversal only if, after considering the record as a whole, including the pleadings, the evidence, and the charge in its entirety, we conclude that the error probably resulted in an improper verdict. See Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986); Wal-Mart Stores, Inc. v. Redding, 56 S.W.3d 141, 149 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

B. The traditional harm analysis applies to the jury question.

Under Casteel, it is still the law that when questions are submitted in a manner that does allow the appellate court to determine that the verdict was actually based on a valid liability theory, which is the case here, the error may be harmless under the traditional harm analysis. 22 S.W.3d at 389. “Submisssion of an improper juiy question can be harmless error if the jury’s answers to other questions render the improper question immaterial.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995). A jury question is immaterial when its answer cannot alter the effect of the verdict. Id. (holding any error in submitting deceased’s negligence in jury charge was harmless; once jury found defendant not negligent, its finding that deceased was negligent could not have altered effect of verdict); see also Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749-50 (Tex.1980) (holding potentially improper submission of defensive issues harmless when jury found for defendant on independent grounds); Hernandez v. Atieh, No. 14-06-00582-CV, 2008 WL 2133193, at *3, 4 (Tex.App.-Houston [14th Dist.] May 20, 2008, no pet.) (mem.op.) (holding — when finding of no liability of defendant supported by evidence — once jury found defendant not negligent, submission of additional person as responsible third party in negligence question harmless); Hutchison v. Pharris, 158 S.W.3d 554, 567-68 (Tex.App.-Fort Worth 2005, no pet.) (holding finding of claimants’ contributory negligence harmless when jury’s failure to find defendants’ negligence was proximate cause of injury was supported by evidence).

C. The traditional harm analysis applies to jury instruction.

Likewise, to determine whether submission of an instruction probably caused an improper judgment and was, therefore, harmful error, we must examine the entire record. Urista, 211 S.W.3d at 757 (citing Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998)); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001); see also Tex. R.App. P. 44.1(a). Specifically, when the record provides “no clear indication” that the jury relied upon an improper inferen*848tial rebuttal instruction, Urista instructs us that we must ordinarily conclude the error is harmless. 211 S.W.3d at 758-59. When, as in this case, the jury makes a negative finding as to liability and, under the evidence, could reasonably have concluded that the plaintiff failed to carry its burden to establish defendant’s negligence rather than relying upon such an instruction, submission of an improper inferential rebuttal instruction is ordinarily harmless error. Id. at 757-59 (holding unavoidable accident submission harmless when cross-examination discredited plaintiffs claims and evidence failed to indicate result would have been different absent instruction); Reinhart v. Young, 906 S.W.2d 471, 473 (Tex.1995) (holding unavoidable accident instruction harmless when ample evidence supported finding of no negligence by defendant, witnesses did not refer to term, counsel made little mention of it in closing, sudden emergency was also submitted without objection, and verdict was unanimous); Torres v. Tessier, 231 S.W.3d 60, 64 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (holding sudden emergency instruction harmless when jury could reasonably have failed to find causation or damages based on credibility determinations regarding evidence without regard to instruction); see also Eoff, 811 S.W.2d at 193 (holding new and independent cause instruction harmless when jury found plaintiff 100 percent contributorily negligent).

D. Any charge error was harmless in light of evidence supporting jury’s finding of “no” as to negligence of Dr. Tho-ta and in light of the entirety of the record.

There was evidence from the medical records as well as the testimony of Dr. Thota, with which Dr. Doherty agreed, that good “hemostasis” was most likely obtained — meaning the initial bleeding from the catheterization stick had been stopped by applied pressure and a blood clot had formed, that Ronnie had no pain and a good pulse, indicating that Ronnie was stable by the time he left the hospital at 2:40 p.m., and that the “injury” complained of — extensive bleeding, shock, and multi-organ failure — did not begin until several hours after he left the hospital. Dr. Thota testified that the extensive bleeding caused by the clot being dislodged was a complication he could not predict at the puncture site where the clot had formed earlier. Dr. Doherty agreed that there was an “event” that caught Ronnie’s attention at 6:00 p.m. and a progressive deterioration after that time.

When Ronnie returned to the hospital’s emergency room at approximately 1:15 a.m., he was seen by Dr. Thota’s partner, Dr. Sudarshan. A CT scan was done, described by Dr. Sudarshan in his report as showing apparent bleeding from an external iliac artery puncture site but with a finding that the site was at “about” the iliac ligament. The operative report of Dr. Walker, who operated on Ronnie that night, described a “high tear” of the right external iliac artery that had bled into the retroperitoneal cavity, forming a large he-matoma. Neither Dr. Sudarshan nor Dr. Walker testified. The experts who did testify based them opinions largely on their respective interpretations of Dr. Sudar-shan’s and Dr. Walker’s written reports.

The testimony of those experts conflicted. Dr. Doherty testified on behalf of Appellant that the standard of care for the cardiac catheterization was to insert the needle and catheter into the right femoral artery below the inguinal ligament. In Dr. Doherty’s opinion, Dr. Thota made the puncture for the cardiac catheterization in the wrong location, above the inguinal ligament into the right external iliac artery, rather than below that ligament into the femoral artery. Dr. Doherty supported *849his opinion by the fact of the bleeding into the retroperitoneal area, which could occur with a puncture that is too high, rather than into the groin, where the bleeding could have been discovered quickly and corrected.

Dr. Thota testified on his own behalf that he met the standard of care, that he did not and could not make a stick into the external iliac artery because he would not feel the pulse at that point. See Hersh v. Hendley, 626 S.W.2d 151, 155 (Tex.App.-Fort Worth 1981, no writ) (holding defendant physician’s own testimony may establish standard of care). He further testified that a retroperitoneal bleed can happen with a femoral artery stick as well as an iliac artery stick. He pointed out that Dr. Sudashan’s finding that the puncture site was at “about the inguinal ligament” would indicate that the puncture site was correct, and further testified that Dr. Walker’s report was ambiguous in reference to what he repaired and where, referring to the inguinal “area” — a vast area that covers the groin — rather than “ligament.” Dr. Thota further pointed out that Dr. Walker’s operative report did not describe the “tear” or how he repaired it. Dr. Doherty also admitted that Dr. Walker’s operative report stated that he had to divide the inguinal ligament before he could actually see the site of the tear in the artery. Dr. Thota testified that, based on that location of the site of the bleeding, i.e., under the inguinal ligament, the puncture site for the cathetrization was in the correct area.

Both Dr. Thota and Dr. Doherty testified that, if there had been an improper high stick preventing adequate hemostasis, Ronnie would likely have developed signs of bleeding before discharge. But Ronnie remained stable and experienced no pain or signs of bleeding after the procedure and for several hours after his discharge. Dr. Thota testified, and even Dr. Doherty acknowledged, that the objective evidence in the records indicated that Ronnie was not bleeding at the time he was discharged, from which the jury could reasonably infer that the puncture location was not improper.

As in many medical malpractice cases, the record consists of conflicting opinions of experts. See, e.g., Cruz ex rel. Cruz v. Paso Del Norte Health Found., 44 S.W.3d 622, 646 (Tex.App.-El Paso 2001, pet. denied) (holding failure to find nurse negligent not against overwhelming weight of evidence when opinions of experts for both parties conflicted); Magee v. Ulery, 993 S.W.2d 332, 336 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding failure to find physician negligent not against overwhelming weight of evidence when jury could have believed defense expert); Crawford v. Hope, 898 S.W.2d 937, 942-43 (Tex.App.-Amarillo 1995, writ denied) (noting “battle of experts” in suit against physician and holding weight of evidence was for jury to evaluate and jury’s failure to find proximate cause not against overwhelming weight of evidence). In a battle of competing experts, it is the sole prerogative of the jury to determine the credibility and weight of the witnesses. Cruz, 44 S.W.3d at 646.

Because of (1) the ambiguity of Dr. Walker’s report, (2) the fact that Dr. Do-herty’s opinions were based primarily on that report, and (3) the conflicting testimony of Dr. Thota and Dr. Doherty based on their respective interpretations of the report as to whether Dr. Thota did or did not place the needle and catheter in the wrong location, the jury could reasonably have resolved the credibility issues by disbelieving Dr. Doherty’s opinions and by believing Dr. Thota’s and could reasonably have found that Appellant failed to carry her burden of proof on establishing the negligence of Dr. Thota. Once the jury *850answered “no” that any negligence of Dr. Thota proximately caused Ronnie’s injury, he was exonerated, and neither a “yes” nor a “no” answer as to the contributory negligence of Ronnie could have altered the verdict. See Alvarado, 897 S.W.2d at 752-53.

Moreover, nothing in the record “clearly indicates” that the jury relied upon the new and independent cause instruction. The jury was free to disbelieve the expert testimony of Dr. Doherty, to accept that of Dr. Thota, and to conclude that Dr. Thota did not incorrectly place the puncture site for the catheterization. We presume that the jury decided all questions of credibility and conflicts in the evidence in favor of the verdict if reasonable jurors could have done so. Torres, 231 S.W.3d at 63-64 (citing City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005)). The jury could reasonably have found Dr. Thota not negligent without reaching the issue of proximate cause, in which event the jury would not have relied on the new and independent cause instruction because that instruction relates only to proximate cause. See Arguelles v. Kellogg Brown & Root, Inc., 222 S.W.3d 714, 727 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (noting “new and independent cause” is component of proximate cause). Additionally, the jury’s answer of “yes” as to Ronnie’s contributory negligence as a proximate cause negates any reliance by the jury on the instruction. See Eoff 811 S.W.2d at 193 (holding new and independent cause instruction contemplates independent force rather than negligence of parties was responsible for injuries). Finally, counsel for Dr. Thota never even mentioned the instruction in his closing argument. I would hold there is no indication, much less any “clear indication,” that the jury relied on that instruction in reaching its verdict. See Urista, 211 S.W.3d at 758-59. Thus, even if there was charge error, under the proper harm analysis I would hold that the record fails to establish that any such error probably resulted in an improper judgment. See Tex.RApp. P. 44.1(a). I would affirm the judgment of the trial court.

. Appellant's brief on appeal opens with an acknowledgment that the jury charge was not based on the “tear” to the external iliac artery', but on the damages that resulted from the injury, the shock that resulted from the bleed, and the multiple problems that arose as the result. Appellant now complains that the charge was based on the wrong foundation and led to an improper judgment. I disagree for the reasons stated above. Moreover, any complaint on this ground was waived by Appellant's failure to object to the term "injury” in Jury Question No. One.

. See also Russell H. McMains, Contribution and Indemnity Problems in Texas Multi-Party Litigation, 17 St. Mary’s L.J. 653, 676-77 (1986) (noting that the supreme court treated injury-causing contributory negligence and occurrence-causing contributory negligence identically in Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 429 (Tex.1984), incorporating within the concept of traditional contributory negligence the negligent failure of a plaintiff to mitigate damages).

. Appellant has not complained that the submission of contributory negligence or the instruction improperly commingled theories or prevented him from properly presenting his case on appeal, and neither party has briefed the possible application of Casteel to this case. In effect, the majority is reversing on unassigned error, issues not raised by the appeal. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998) (holding it is "axiomatic that an appellate court cannot reverse ... absent properly assigned error”).

. In Harris County, the court noted that the Comments to the Pattern Jury Charge have long recommended that damage elements be submitted “separately” if there is a substantial doubt as to whether there is evidence to support an element. 96 S.W.3d at 235; see PJC 8.02 cmt. (suggesting "use of a separate answer line for each element of damages might avoid the need for a new trial if the appellate court finds that one or more, but not all, of the elements lack legal or evidentia-ry support”) (emphasis added). Thus, surely “separately” may mean either separate jury questions or separate answer lines within the same question.