581 S.W.3d 761
Tex.2019Background
- Lance Windrum presented to the hospital in Feb 2010 with repeated episodes of confusion, slurred speech, imbalance, and imaging showing marked dilation of the lateral and third ventricles consistent with aqueductal stenosis and obstructive (non-communicating) hydrocephalus.
- Neurologist Dr. Gill recommended a shunt; neurosurgeon Dr. Kareh placed a temporary ventricular drain the next day, monitored intracranial pressure for ~24 hours, and decided not to insert a permanent shunt then.
- Lance had recurrent symptoms, worsening aqueductal stenosis on later MRI, and died in his sleep in May 2010; autopsy attributed death to complications of hydrocephalus due to aqueductal stenosis.
- Plaintiff (Windrum) presented neurosurgeon Dr. Parrish and neuropathologist Dr. Dragovic as experts who testified that the standard of care required shunt placement and that failure to do so caused Lance’s death; defense experts testified to reasonable alternative treatment and lack of evidence of sustained pressure.
- A jury found Kareh 80% at fault and awarded damages; the court of appeals reversed, holding the expert testimony conclusory and causation too remote; the Texas Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony on standard of care/breach was conclusory | Parrish tied opinion to records, autopsy, imaging, clinical signs, experience and literature; not mere ipse dixit | Parrish’s ultimate conclusion lacked direct literature support and relied on clinical judgment—thus conclusory | Testimony was not conclusory: Parrish provided factual bases and explanation linking his opinion to the record; credibility was for the jury |
| Whether Kareh’s alleged breach was too remote to be proximate cause | Failure to insert a shunt was a substantial factor in bringing about death; need not be the immediate cause | Any negligence was not the immediate cause; chain of causation too attenuated | Reversed court of appeals: substantial-factor standard applies; breach could be proximate cause and was a jury question |
| Whether court of appeals applied correct factual-sufficiency review | Windrum: court misapplied standard and failed to explain weighting of evidence | Kareh: court’s conclusion of insufficiency was appropriate | Court of appeals erred: it stated the standard but failed to detail evidence or explain how contrary evidence outweighed the verdict; remand required for proper application |
| Scope of review regarding expert basis (experience vs. literature) | Experience can suffice; literature not always required if expert links opinion to facts | Absence of literature undermines reliability | Experience may be sufficient; expert must still explain bases—here explanation was adequate |
Key Cases Cited
- Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) (jury is sole judge of witness credibility)
- Bustamante v. Ponte, 529 S.W.3d 447 (Tex. 2017) (requirements for nonconclusory expert testimony in medical malpractice)
- City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (conclusory expert testimony cannot support judgment)
- Palacios v. American Transitional Care Centers of Texas, 46 S.W.3d 873 (Tex. 2001) (need for specific standard-of-care proof)
- Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (expert must explain why inferences are medically preferable)
- Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) (experience may supply an adequate basis for expert opinion)
- Mason v. IHS Cedars Treatment Center, 143 S.W.3d 794 (Tex. 2004) (proximate-cause attenuation doctrine; substantial-factor test)
- Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995) (substantial-factor/ reasonable-medical-probability standard in malpractice causation)
- Providence Health Ctr. v. Dowell, 262 S.W.3d 324 (Tex. 2008) (attenuation can defeat proximate cause when no evidence that proper care would have prevented harm)
- Arkoma Basin Expl. Co. v. FMF Assocs., 249 S.W.3d 380 (Tex. 2008) (no-evidence challenge may be based on face of record where opinion is conclusory)