Victor Kareh M.D. v. Tracy Windrum, Individually, as Representative of the Estate of Lancer Windrum, and on Behalf of Her Minor Children, B. W., J. W. and H. W.
2017 Tex. App. LEXIS 2292
| Tex. App. | 2017Background
- Lancer ("Lance") Windrum presented to North Cypress Medical Center in Feb 2010 with intermittent neurologic episodes (slurred speech, confusion, imbalance); imaging showed enlarged ventricles and aqueductal stenosis (hydrocephalus).
- Neurosurgeon Dr. Kareh placed a ventricular monitor; intracranial pressure (ICP) readings showed transient spikes but no sustained elevation; Kareh discharged Lance without placing a permanent shunt. Lance later saw other treating physicians; an April MRI showed worsening findings but Kareh was not informed of those results.
- Lance died in his sleep on May 2, 2010; autopsy reported marked aqueductal stenosis and listed complications of hydrocephalus due to aqueductal stenosis as cause of death.
- Plaintiff (Tracy Windrum, individually and as estate rep and on behalf of minor children) sued for wrongful death/medical malpractice; jury found Kareh 80% negligent and awarded multi-million dollar damages; trial court applied statutory caps and entered judgment for plaintiff.
- On appeal the court addressed legal and factual sufficiency of evidence on (1) breach of standard of care (failure to place shunt) and (2) causation; the panel concluded plaintiff's proof was insufficient and reversed and rendered a take-nothing judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved breach of the neurosurgical standard of care (duty to place a shunt on Feb 4, 2010) | Parrish (plaintiff expert): MRI + "classic" intermittent symptoms equaled symptomatic obstructive hydrocephalus requiring a shunt; Kareh should have recommended/placed a shunt and informed of risks of non-treatment | Kareh: ICP monitoring showed no sustained elevated pressure; risks of shunt in patient with normal pressure; standard did not require shunt based on monitoring and clinical course | Reversed for plaintiff — court held plaintiff failed to present legally or factually sufficient evidence of breach beyond conclusory expert opinion (Parrish's testimony was insufficiently supported) |
| Whether plaintiff proved proximate causation between failure to place a shunt and Lance's death on May 2, 2010 | Parrish and Dragovic: death resulted from acute obstruction of aqueduct causing fatal rise in ICP; earlier failure to treat left a foreseeable, progressive, ultimately fatal condition | Kareh: decision not to shunt was based on normal monitoring and resolved symptoms; any later worsening (April MRI) was not communicated to Kareh; temporal remoteness; other experts found no autopsy evidence of elevated ICP | Reversed — court held even assuming breach, Kareh's February decision was too remote from May death and causation was not proven by preponderance of legally sufficient evidence |
| Admissibility/weight of plaintiff experts' opinions (conclusory/explained basis) | Plaintiff relies on Parrish's experience and opinions; plaintiff argued expert testimony adequately explained basis (imaging, symptoms, experience) | Kareh challenged causation and methodology; court examined whether expert linked data to opinion or relied on ipse dixit | Court treated Parrish's opinion as conclusory/insufficiently supported (no medical literature or adequate analytical connection presented to establish that shunt was required “every time”), so expert evidence could not sustain verdict |
| Procedural disposition (trial judgment & remaining issues) | Plaintiff seeks to uphold jury verdict and judgment after caps applied | Defendant seeks JNOV/new trial or reversal | Court reversed and rendered judgment that plaintiff take nothing on malpractice claim; remaining appellate issues not reached because essential elements lacked legally sufficient evidence |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for legal- and factual-sufficiency review of jury findings)
- Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (medical causation requires reasonable medical probability and expert explanation of how negligence caused injury)
- Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227 (Tex. 2004) (expert testimony must have a reliable basis; conclusory opinions are not probative)
- Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) (experience can support expert testimony but must be sufficiently connected to opinion)
- Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (expert proof standards for causation and reliable basis)
- Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) (the basis of an expert's opinion, not mere credentials, determines its probative value)