holding that the evidence was legally and factually insufficient to support the jury's verdictSummary of this case from Windrum ex rel. Children v. Kareh
Sean Higgins, 909 Fannin Street, Ste. 3300, Houston, TX 77010, for Appellant. J. Stephen Barrick, Wade Whilden, Stephen Loftin, HICKS THOMAS LLP, 700 Louisiana Street, Suite 2000, Houston, TX 77002, for Appellee.
Sean Higgins, 909 Fannin Street, Ste. 3300, Houston, TX 77010, for Appellant.
J. Stephen Barrick, Wade Whilden, Stephen Loftin, HICKS THOMAS LLP, 700 Louisiana Street, Suite 2000, Houston, TX 77002, for Appellee.
Panel consists of Justices Keyes, Bland, and Massengale.
En banc consideration was requested. See Tex. R. App. P. 41.2(c).
OPINION ON REHEARING
Evelyn V. Keyes, Justice
Appellee, Tracy Windrum, moved for rehearing and en banc reconsideration of our April 19, 2016 opinion and judgment in this case. We withdraw our April 19, 2016 opinion and judgment and issue this opinion and judgment in their stead. Our disposition remains unchanged.
In this wrongful death case, Tracy Windrum, individually, as representative of the estate of Lancer Windrum, her husband, and on behalf of her minor children, B.W., J.W., and H.W., sued Dr. Victor Kareh for medical malpractice. After a jury trial, the jury found Dr. Kareh 80% negligent and awarded a total of $4,239,464 to Windrum in damages. After applying settlement credits and statutory damages caps, the trial court entered judgment in favor of Windrum, awarding her $1,875,887.62 in damages. In seven issues, Dr. Kareh contends that (1) Windrum failed to present legally and factually sufficient evidence that he was negligent: (2) Windrum failed to present legally and factually sufficient evidence that his negligence caused Lance Windrum's death: (3) the trial court erroneously admitted expert testimony and accompanying photographs that were not timely produced: (4) the trial court erroneously denied his motion for mistrial made after the court informed the jury that the parties had been to mediation and tried to settle: (5) the trial court erroneously excluded on the basis of the Texas Deadman's Rule testimony from one of the physicians involved concerning statements made to her by the decedent: (6) the foregoing errors constituted cumulative error: and (7) the trial court erroneously applied the statutory damages caps applicable to the recovery of non-economic damages in wrongful death cases.
We reverse and render.
A. Factual Background
On February 3, 2010, forty-six-year-old Lancer ("Lance") Windrum was out shopping with his three children when he started slurring his speech, became confused and disoriented, and hit his head while trying to climb back into his car. An ambulance took Lance to the North Cypress Medical Center ("NCMC"), where he worked as the Director of Radiology. Lance reported to his treating physicians that he had had three similar "episodes" over the past several months, which involved "very mild" slurring of his speech that resolved over the course of several hours. During the third episode, which occurred on Christmas Eve 2009 and was "pretty similar" to the February episode, Lance had felt confused, his balance had been impaired, and he had had tremors in his left hand and leg. Lance told his physicians that, on each of these occasions, he "was back to his baseline" within a matter of hours. Lance also reported that he had contracted encephalitis, a brain infection, when he was six years old.
Dr. Carrie Blades, the attending emergency room physician, ordered that Lance undergo a CT scan of his head. The lateral and third ventricles of the brain produce cerebrospinal fluid, which flows through an aqueduct into the fourth ventricle of the brain and then into the spinal column before it is later absorbed into the body through the venous system. The CT scan report noted that the ventricles in Lance's brain were "dilated out of proportion," indicating hydrocephalus. Dr. Blades ordered that Lance undergo an MRI. Dr. Christina Payan, the neuroradiologist who read the MRI scan, reported the following findings: "The lateral and third ventricles are markedly dilated out of proportion with the fourth ventricle and sulci. The cerebral aqueduct is narrowed. These findings are indicative of aqueductal stenosis [i.e., the narrowing of the aqueduct that carries cerebrospinal fluid through the brain]. There is some white matter atrophy. No significant transependymal [cerebrospinal fluid] flow is evident. ... No masses are present." Lance then consulted Dr. Harpaul Gill, a neurologist at NCMC. Dr. Gill agreed that, at the time he presented to NCMC, Lance was experiencing symptoms of a neurological condition. During the consultation, Dr. Gill came to the conclusion that Lance's symptoms might be caused by an increase in intracranial pressure due to a build-up of cerebrospinal fluid in the ventricles of Lance's brain, and he told Lance that a shunt was a possible treatment to drain the excess fluid from the brain. Dr. Gill referred Lance to Dr. Kareh, a neurosurgeon, to determine whether Lance had increased intracranial pressure which would require surgery to alleviate.
"Transependymal flow" is the flow of cerebrospinal fluid outside of the ventricular system.
Windrum originally sued Dr. Gill, as well as North Cypress Medical Center, North Cypress Medical Center Operating Company, GP, LLC, North Cypress Medical Center Operating Company, Ltd., and Coresource, Inc. Windrum settled with Dr. Gill and the North Cypress entities pre-trial, and she nonsuited her claims against Coresource.
Placement of a shunt involves threading a tube from the brain down into the patient's abdomen. When there is a blockage in the ventricular system, excess cerebrospinal fluid flows through the shunt down into the abdomen, where it is then absorbed into the body. This mechanism helps relieve the elevated intracranial pressure that can occur with the build-up of cerebrospinal fluid in the ventricles.
Dr. Kareh first saw Lance around 6:00 a.m. on February 4, 2010. Dr. Kareh testified that he did not review Lance's medical history prior to meeting with him. Lance did not have any of the symptoms that he had displayed when he presented to NCMC the previous evening. All of Lance's cranial nerves exhibited normal functioning. Dr. Kareh testified that double vision and papilledema, or swelling around the optic nerve, are both common symptoms that occur when a patient has increased intracranial pressure. Lance did not have double vision or papilledema at the time Dr. Kareh examined him. Dr. Kareh informed Lance that if he had increased intracranial pressure, he might need to have a shunt placed to drain the built-up cerebrospinal fluid. Lance consented to the placement of a ventricular drain and a device to monitor his intracranial pressure to determine whether it was increased.
Dr. Kareh monitored Lance's intracranial pressure over a twenty-four hour period. Lance did not have increased intracranial pressure at the time that Dr. Kareh placed the monitoring device inside his brain. During the monitoring period, Lance's intracranial pressure spiked on several occasions to a higher level than what is considered "normal." However, Lance's intracranial pressure quickly returned to a normal level on each occasion, and he did not experience any periods of sustained increased intracranial pressure. After the monitoring period ended, Dr. Kareh concluded that Lance's intracranial pressure levels were normal, his neurological examination was normal, and he was not suffering from any symptoms such as confusion, imbalance, weakness, or numbness. Dr. Kareh determined that, although Lance had hydrocephalus, he did not have increased intracranial pressure. He therefore did not place a shunt.
Dr. Gill saw Lance for a follow-up appointment on February 17, 2010. Lance reported that he had had "one to two headaches every week," but he had not experienced nausea, vomiting, focal weakness, numbness, visual disturbances, or sensitivity to light or sound. Dr. Gill performed a neurological examination, and the results were "normal." Dr. Gill and Lance discussed medication for Lance's headaches, but Lance decided against this course of action because he was "feeling better." Dr. Gill directed Lance to visit the emergency room if he experienced any more neurological symptoms, and he recommended that Lance undergo another MRI scan in three months and that Lance keep track of the headaches he experienced. Dr. Gill gave Lance a "headache calendar" to keep track of the days on which he experienced headaches.
Lance saw Dr. Kareh for a follow-up appointment on February 22, 2010. Lance reported that he had had one headache episode since he had been discharged from the hospital, which Dr. Kareh testified was expected due to the surgical procedure he had undergone, and one episode of slurred speech. Dr. Kareh recommended that Lance undergo a nuclear cisternogram to track the circulation of cerebrospinal fluid throughout his body, and he also recommended that Lance consult an endocrinologist to rule out a hormonal cause to his neurological symptoms. Dr. Kareh did not see Lance again after the February 22 appointment. Lance did not have a nuclear cisternogram performed. Lance did see an endocrinologist on March 24, 2010, and testing conducted by this doctor revealed no problems with Lance's endocrine system that might have caused his symptoms.
On his headache calendar, Lance self-reported taking two Lortabs for headache-related pain on two occasions during April 2010. He also underwent a second MRI scan in April 2010 with the findings reported to Dr. Gill. Dr. Payan again read the MRI scan and testified that "[t]he ventricles looked as big, if not worse in size, and the angle of the aqueduct had notably changed" since the February MRI. Dr. Payan called Dr. Gill and reported her findings to him. Dr. Gill did not discuss the results of this MRI with Lance, but Lance did undergo an EEG on April 29, 2010, at Dr. Gill's direction. The results of this test were normal. There is no evidence that either Dr. Gill or Dr. Payan informed Dr. Kareh of Lance's symptoms after the February follow-up appointment or of the results of the April MRI scan.
Lance passed away in his sleep on May 2, 2010. Lance had reportedly complained to Windrum the previous day that he felt tired, sluggish, and irritable, and he had slurred speech. Lance did not self-report experiencing any headaches for the ten days prior to his death, which included his second MRI, showing a notably changed aqueduct and worsened ventricles, and a normal EEG.
Dr. Morna Gonsoulin, a medical examiner for the Harris County Institute of Forensic Sciences, performed an autopsy on Lance. Dr. Gonsoulin noted that Lance's heart was enlarged and that the chambers of the heart were dilated. Dr. Gonsoulin made the following findings relevant to Lance's brain:
The leptomeninges are clear. There is no epidural, subdural, or subarachnoid hemorrhage. The cerebral hemispheres are generally symmetrical with a relatively unremarkable gyral pattern. The vessels at the base of the brain are normally configured without atherosclerosis. The cranial nerves appear unremarkable. Sections through the cerebrum reveal markedly expanded lateral ventricles with rostral and caudal extensions to the frontal and occipital poles, respectively. The left hippocampus has slightly more prominent gray matter than the right hippocampus. There is decreased periventricular white matter surrounding the dentate nuclei of the cerebellum with expanded nuclear outlines abutting the ventricular border and no intervening white matter. A 0.5 centimeter cystic membrane is adjacent to the left dentate nucleus near the ventricle with interruption of the nuclear outline and slightly more white matter
compared to that of the right. The periaqueductal gray matter is blurred with prominent stenosis of the aqueduct at the level of the cerebral pedicles. The diameter of the aqueduct ranges from pinpoint to non-visible, obscured by ill-defined light tan gelatinous gray material. Slightly increased gray matter is noted in the crossing fibers of the pons. No discrete areas of hemorrhage, infection or neoplasm are apparent.
(Emphasis added.) In the "Microscopic Examination" section of the autopsy report, Dr. Gonsoulin stated, "Sections from rostral pons through medulla show marked stenosis of aqueduct with gliosis [, i.e., scarring] of adjacent structures." Dr. Gonsoulin listed "[c]omplications of hydrocephalus due to aqueductal stenosis" as Lance's cause of death.
B. Procedural Background
Windrum, in her individual capacity, in her capacity as the representative of Lance's estate, and on behalf of her three minor children, brought a negligence cause of action against Dr. Kareh and Dr. Gill pursuant to Texas's wrongful death statute. Windrum alleged that the applicable standard of care when Lance was seen by Dr. Kareh at NCMC on February 4 required Dr. Kareh to install a shunt, or a permanent drain, in Lance's brain to prevent a fatal build-up of cerebrospinal fluid and intracranial pressure. Dr. Gill settled before trial.
Windrum retained Dr. Robert Parrish, a neurosurgeon, to testify concerning the standard of care and causation, and she retained Dr. Ljubisa Dragovic, a forensic and neuropathologist, to testify concerning causation. Dr. Kareh filed a Daubert motion challenging both experts' opinions on causation, arguing that neither doctor has "a sufficient scientific and/or factual basis to render such opinions and such opinions are based on pure speculation and mere conjecture and do not pass the Analytical Gap test." Dr. Kareh also argued that the methodology underlying Dr. Parrish's and Dr. Dragovic's opinions "is based on speculation and is unreliable." The trial court overruled this motion.
Dr. Parrish testified that his opinion was that "Dr. Kareh should have put a shunt in when he saw Mr. Windrum in the hospital" on February 4 and that Lance "died of obstructive hydrocephalus." When asked how Lance died, Dr. Parrish testified,
Dr. Parrish testified that "obstructive hydrocephalus" does not necessarily mean a complete blockage of the aqueduct and that a "partial" obstruction, such as the narrowed aqueduct seen in cases of aqueductal stenosis, is considered "obstructive hydrocephalus."
His aqueduct obstructed. There's pressure in the ventricles. It put pressure on the red nuclei and the periaqueductal region right around where all that important stuff is. And those fibers made him stop breathing and his heart stop beating. ... But all those vital structures stopped because of pressure on the top of the brain stem where he is most susceptible with the aqueductal stenosis.
He stated that Lance "had these classic symptoms of increased intracranial pressure with staggering, slurred speech, and altered mental status that were periodic." He discounted the significance of the absence of papilledema in Lance's eyes—likewise a classic symptom of increased intracranial pressure—and he testified that papilledema can be intermittent and did not have to be present for Lance to have increased intracranial pressure. Relying on the February MRI results plus the "classic symptoms" of hydrocephalus, Dr. Parrish opined that this "equals a shunt ... every time." He stated that although Lance's being off-balance and confused and having slurred speech are "generic symptoms," "in the fact of that M.R.I. scan showing severe aqueductal stenosis, they are the light bulb that needs to go off and say this requires a shunt."
Dr. Parrish testified that Lance had "pre-existing" large ventricles. He considered it significant that Lance had contracted encephalitis when he was six years old. He testified that he believed the encephalitis"had something to do with scarring in the aqueduct which led to [Lance's] increased intracranial pressure and enlarged ventricles." Dr. Parrish opined that the encephalitis caused an inflammation in Lance's brain, which led to scarring, or gliosis, which then led to the narrowing of the aqueduct. Dr. Parrish testified that a narrowed, or partially obstructed, aqueduct "means it's more difficult for fluid to flow through" and thus requires a higher amount of intracranial pressure to force fluid through the aqueduct.
Dr. Parrish also testified that "[t]he contour of the ventricles and even the contour of the aqueduct is proof that there is at some time increased intracranial pressure, increased intraventricular pressure." Dr. Parrish described Lance's third ventricle, as seen in the February 2010 MRI, as "huge," and he stated that "the top part of the aqueduct is enlarged compared to the bottom part, which is extremely small." He testified that this was evidence of "increased intracranial pressure at some time." Dr. Parrish testified that the "obvious indications of pressure" on the February 2010 MRI scan included the "[b]ig third ventricle," "enlargement of the proximal part of the aqueduct of Sylvius and constriction of the bottom part [of the aqueduct]," and a slightly enlarged fourth ventricle. He stated, "Those ventricles got big somehow, and they were blown up by the increased pressure."
Dr. Parrish reviewed the April MRI and testified that, although Lance's ventricles looked the same size in the April MRI, he concluded that "the aqueduct here is more dilated proximally on the inside" than the aqueduct in the February MRI. Dr. Parrish suggested that "the pressure has increased, or it may be intermittently increasing," and he testified that the April MRI reflected that Lance was "getting worse." Dr. Parrish agreed that the April MRI indicated that "the angle of the aqueduct was different and it indicated pressure." He also testified that Lance demonstrated "typical compensated hydrocephalus," in which the ventricles expand to compensate for the obstructed flow of cerebrospinal fluid through the aqueduct, but, at some point, because the brain is constrained by the skull, the ventricles reach the limit of the amount they can expand, the increasing intracranial pressure has "to go somewhere" and so it is "exerted down through the brain stem," which affects the heart and respiratory rates. Dr. Parrish stated that the April MRI demonstrated compensation and that "you can compensate up to a point, and at some point the time bomb goes off."
On cross-examination, Dr. Parrish agreed that the autopsy showed a "normal looking brain" and revealed no microscopic evidence of increased intracranial pressure, such as herniation, swelling, or bleeding within the brain. He also agreed that he could not determine how long Lance had had enlarged ventricles and that the MRI could not pinpoint when the changes in Lance's brain structure had occurred. Dr. Parrish also agreed that although Lance had several symptoms associated with increased intracranial pressure when he presented to NCMC, such as slurred speech, confusion, a headache, and balance problems, he did not have other "classic" symptoms such as nausea and vomiting, increased blood pressure, increased pulse pressure, papilledema, and a low heart rate.
Dr. Parrish agreed that Lance's symptoms could have been caused by "some other process" rather than increased intracranial pressure and that Lance's symptoms all disappeared while he was in the hospital. Dr. Parrish suggested that Lance "opened up his pathway somehow," such as by having "enough [intracranial] pressure that he opened up the aqueduct" and "relieved his own pressure," which could account for the rapid dissipation of Lance's symptoms. Dr. Parrish further agreed that no other doctor called Dr. Kareh to inform him of the April 2010 MRI results and that Dr. Kareh, therefore, would not have had any knowledge of Lance's worsening hydrocephalus and aqueductal stenosis as shown on the April MRI. Dr. Parrish also agreed that at the time Lance left NCMC in February 2010, his aqueduct was not completely closed. He further agreed that placing a shunt in a patient can result in the patient's death. Dr. Parrish agreed that Lance had an MRI performed nine days before he died and he "could have survived his problem ... if he'd had a shunt done the day before he died."
Dr. Dragovic testified that, in his opinion based on a reasonable degree of medical probability, Lance "died of complications of obstructive hydrocephalus." Factors relevant to Dr. Dragovic's opinion included the fact that Lance had had "some problems and neurological deficits that were occurring on and off over a period of time," the "established clinical diagnosis [of] enlarged ventricles," and Lance's history of having suffered from encephalitis.
Dr. Dragovic stated that after reviewing the microscopic slides prepared during the autopsy, he "now know[s] beyond any reasonable doubt in [his] mind that there was acute blockage, acute obstruction of the aqueduct at the lower level [leading to the fourth ventricle]" when Lance died, and he opined that a build-up of glial tissue, or scar tissue in the brain, caused the blockage. Dr. Dragovic also testified that Lance's enlarged ventricles "reflect [ed] sudden increase of [intracranial] pressure as a result of increased blockage." He stated that it was "clear that this condition had been present for a long time." Dr. Dragovic thus concluded that, in his opinion, this case involved an acute blockage of the aqueduct and that the "sudden rise of intracranial pressure because of the blockage creating the pressure on the brain stem and pressure on the structures above the brain stem to lose control of respiratory function and allow the quick accumulation of fluid in the lungs."
Dr. Dragovic testified that the photographs taken by the medical examiner's office of Lance as he was found in bed on May 2, 2010, support this conclusion, as they show "purging from his nostrils, purging from his mouth," indicative of a build-up of fluid in his lungs. He testified that this evidence is inconsistent with death from cardiac arrhythmia. Dr. Dragovic stated that he was able to exclude a heart problem as a possible cause of Lance's death.
Dr. Gill, Lance's treating neurologist, who settled before trial, testified by video deposition. He testified that although Lance was suffering from obstructive hydrocephalus, he did not wish that he had insisted that Dr. Kareh place a shunt in Lance's brain. Dr. Gill agreed that "the applicable standard of care is that the treatment for obstructive hydrocephalus is either a shunt or a third ventriculostomy." He testified, however, that he believed discharging Lance without placement of a shunt was proper because the monitoring of Lance's intracranial pressure revealed no sustained increased in pressure and because his headache had improved and he was feeling better. Dr. Gill agreed that intracranial pressure fluctuates and that increased pressure could be intermittent.
A ventriculostomy involves puncturing the bottom of the third ventricle to create another method by which cerebrospinal fluid can flow out of the third ventricle.
Windrum also called Dr. Randolph Evans, a neurologist who had been retained by Dr. Gill, to testify. Dr. Evans testified that Lance was "perhaps symptomatic" when he presented to NCMC in February 2010 and that he was "not entirely sure that these symptoms [that he had upon presentment] were due to aqueductal stenosis," although he later testified, based on a reasonable degree of medical probability, that Lance's symptoms were caused by aqueductal stenosis. He stated that the symptoms with which Lance presented to NCMC "can be consistent with a number of different neurological problems, including increased intracranial pressure."
Dr. Evans also agreed that the two major alternatives for treating aqueductal stenosis are shunt surgery and a third ventriculostomy, but he stated, "[T]he [medical] literature suggests that surgical treatment should be offered to patients where the symptoms are felt to be due to aqueductal stenosis." He testified that placing a shunt "has a high risk of complications," although he also agreed that shunt surgery is successful in a high percentage of cases and that the mortality rate for this treatment is "close to zero." He testified that "for many patients, [shunt surgery] will be a good treatment, but there are risks and benefits of these surgical treatments, like any others," and the neurosurgeon must determine whether "the risk of treatment outweigh[s] the risk of not having treatment." Dr. Evans agreed that unless the patient has specific impairments such as advanced age or a heart condition, surgical intervention is appropriate. Dr. Evans also noted that the medical records reflected that Dr. Kareh offered to place a shunt in Lance's brain, but Lance had "declined."
Dr. Warren Neely, a neurosurgeon, testified on behalf of Dr. Kareh. Dr. Neely testified that, in his opinion, although Lance had aqueductal stenosis, it was not obstructive and Lance did not die from aqueductal stenosis. Dr. Neely opined that none of the radiological scans demonstrated evidence of increased intracranial pressure, that the ventricular monitoring demonstrated intracranial pressure within a normal range, and that the autopsy revealed "normal findings of the brain" and did not show any indication of elevated intracranial pressure at the time of death. Dr. Neely testified that the major symptoms consistent with obstructive hydrocephalus are extreme drowsiness, severe headaches, nausea, vomiting, eye movement problems, swelling of the optic nerve, and papilledema. He stated that the symptoms that Lance presented with were all "nonspecific symptoms" that could be indicative of several conditions and do not necessarily indicate increased intracranial pressure.Dr. Neely testified that the standard of care did not require Dr. Kareh to install a shunt in Lance's brain. He stated:
Dr. Neely defined "obstructive hydrocephalus" as "a blockage somewhere in the flow of spinal fluid from where it's being made to actually where it's being reabsorbed," and he testified that obstructive hydrocephalus and aqueductal stenosis are not necessarily the same thing, although "compensated" or "partial obstructive hydrocephalus" "could mean the same thing as compensated aqueductal stenosis." Dr. Kareh similarly defined obstructive hydrocephalus as "a blockage of the normal pathway [of cerebrospinal fluid.]" He also acknowledged that obstructive hydrocephalus can be total or partial. Dr. Kareh defined aqueductal stenosis as "[a] dysfunction through the aqueduct" that affects the proper circulation of cerebrospinal fluid.
[T]his is an initial assessment. You're seeing someone that has very nonspecific symptoms. You have a CAT scan and an MRI scan that do not show increased intracranial pressure. Yes, there are certainly abnormalities in his ventricular system. We see that all the time. This is a very common finding in patients that we see.
Again, in this situation, I would not install a shunt based on the history or the findings on the MRI scan or CAT scan.
Dr. Neely further testified that the medical records reflected that Dr. Kareh explained to Lance that he might have increased intracranial pressure, that the pressure needed to be monitored, that, if it was elevated, they would consider placing a shunt, and that they discussed the risks of the procedures involved. Based on his review of the ventricular monitoring procedure, Dr. Neely agreed with Dr. Kareh that Lance was not suffering from increased intracranial pressure at the time he saw Dr. Kareh, although there were several instances in which Lance's intracranial pressure spiked to above-normal levels.
Dr. Neely testified that, based on the intracranial pressure readings, he "absolutely" would not have recommended the installation of a shunt and that the standard of care did not require a shunt based on those readings. He stated that he would not install a shunt in a patient who had normal levels of intracranial pressure because draining cerebrospinal fluid from a patient with normal pressure levels could cause chronic headaches, dizziness, fainting spells, and complications in which the surface of the brain moves away from the skull and the resulting space fills up with either fluid or blood, which could lead to a tear in a vein and a subdural hematoma. He also testified that installation of a shunt itself can have complications, such as risks from anesthesia, the possibility of infection, failure of the shunt, and rupture of a blood vessel in the brain or chest or abdominal cavities. Dr. Neely testified that, based on the possibility of complications from installing a shunt and the fact that Lance did not have increased intracranial pressure, it was "very appropriate" for Lance to be discharged from NCMC without placement of a shunt.
Dr. Kent Heck testified as Dr. Kareh's neuropathology expert. Dr. Heck agreed that Lance's aqueduct was narrowed and that this finding was consistent with Lance's history of hydrocephalus with aqueductal stenosis. He testified that if a patient died from hydrocephalus and aqueductal stenosis, he would expect to find during the autopsy evidence of brain swelling and herniation, which he did not see in the pathology slides from Lance's autopsy. Dr. Heck testified that he saw no evidence of increased intracranial pressure at the time of Lance's death and that he saw no evidence of Lance's dying from complications from hydrocephalus due to aqueductal stenosis.
Dr. Heck testified that other pathology slides revealed that Lance had an enlarged heart and dilation of the chambers of the heart, indicative of congestive heart failure. He testified that if he had had the responsibility of filling out the death certificate in this case he would have listed "undetermined" as the cause of death. He stated that, in this case, "the two primary suspects" for Lance's cause of death were the heart and the brain but that "neither [had] enough conclusive evidence to determine which [was] the true cause of death." He agreed with Dr. Kareh's counsel that "there is absolutely no evidence of any kind of a complication from hydrocephalusdue to aqueductal stenosis as a cause of death in Mr. Windrum."
The jury found both Dr. Kareh and Dr. Gill to be negligent, and it assigned eighty percent responsibility to Dr. Kareh and twenty percent responsibility to Dr. Gill. The jury awarded to Tracy Windrum, in her individual capacity, $211,280 for past pecuniary loss, $1,177,176.96 for future pecuniary loss, $30,000 for past loss of companionship and society, $200,000 for past mental anguish, and $250,000 for future mental anguish. The jury awarded B.W. $39,615 for past pecuniary loss, $220,720.68 for future pecuniary loss, $30,000 for past loss of companionship and society, $50,000 for future loss of companionship and society, $200,000 for past mental anguish, and $500,000 for future mental anguish. The jury awarded J.W. $39,615 for past pecuniary loss, $220,720.68 for future pecuniary loss, $30,000 for past loss of companionship and society, $50,000 for future loss of companionship and society, $100,000 for past mental anguish, and $275,000 for future mental anguish. The jury awarded H.W. $39,615 for past pecuniary loss, $220,720.68 for future pecuniary loss, $30,000 for past loss of companionship and society, $50,000 for future loss of companionship and society, $75,000 for past mental anguish, and $200,000 for future mental anguish.
In its final judgment, the trial court applied the statutory cap on damages in wrongful death cases and awarded a total of $1,875,887.62 to Tracy Windrum. The trial court apportioned the award as follows: $1,123,301.89 for Tracy Windrum in her individual capacity, $277,840.33 for the benefit of B.W., $241,869.10 for the benefit of J.W., and $232,876.30 for the benefit of H.W. The trial court denied Dr. Kareh's motion for judgment notwithstanding the verdict and motion for new trial, and this appeal followed.
Sufficiency of the Evidence of Medical Negligence
In his first issue, Dr. Kareh contends that Windrum failed to present legally and factually sufficient evidence that his actions or omissions caused Lance's death. In his second issue, Dr. Kareh contends that Windrum failed to present legally and factually sufficient evidence that he breached the standard of care, and thereby committed negligence, by failing to install a shunt in Lance's brain.
A. Standard of Review
When conducting a legal sufficiency review, we credit favorable evidence if a reasonable fact-finder could do so and disregard contrary evidence unless a reasonable fact-finder could not. See City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005) : Brown v. Brown , 236 S.W.3d 343, 348 (Tex. App.–Houston [1st Dist.] 2007, no pet.). We consider the evidence in the light most favorable to the finding under review and we indulge every reasonable inference that would support the finding. City of Keller , 168 S.W.3d at 822. We sustain a no-evidence contention only if: (1) the record reveals a complete absence of evidence of a vital fact: (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact: (3) the evidence offered to prove a vital fact is no more than a mere scintilla: or (4) the evidence conclusively establishes the opposite of the vital fact. Id. at 810 : Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997).
In a factual sufficiency review, we consider and weigh all of the evidence. See Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986) (per curiam): Arias v. Brookstone, L.P. , 265 S.W.3d 459, 468 (Tex. App.–Houston [1st Dist.] 2007, pet. denied). When the appellant challenges a jury finding on an issue on which it did not have the burden of proof at trial, we set aside the verdict only if the evidence supporting the jury finding is so weak as to make the verdict clearly wrong and manifestly unjust. See Cain , 709 S.W.2d at 176 : Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C. , 336 S.W.3d 764, 782 (Tex. App.–Houston [1st Dist.] 2011, no pet.). The jury is the sole judge of the witnesses' credibility and it may choose to believe one witness over another. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003). We may not substitute our judgment for that of the jury. Id. "Because it is the jury's province to resolve conflicting evidence, we must assume that jurors resolved all conflicts in accordance with their verdict." Figueroa v. Davis , 318 S.W.3d 53, 60 (Tex. App.–Houston [1st Dist.] 2010, no pet.).
B. Evidence of Negligence
"To meet the legal sufficiency standard in medical malpractice cases ‘plaintiffs are required to adduce evidence of a "reasonable medical probability" or "reasonable probability" that their injuries were caused by the negligence of one or more defendants, meaning simply that it is "more likely than not" that the ultimate harm or condition resulted from such negligence.’ " Jelinek v. Casas , 328 S.W.3d 526, 532–33 (Tex. 2010) (quoting Kramer v. Lewisville Mem'l Hosp. , 858 S.W.2d 397, 399–400 (Tex. 1993) ). The elements of a health care liability claim sounding in negligence are (1) a legal duty, (2) a breach of duty, and (3) damages proximately caused by the breach. Creech v. Columbia Med. Ctr. of Las Colinas Subsidiary, L.P. , 411 S.W.3d 1, 5–6 (Tex. App.–Dallas 2013, no pet.). The standard of care for a health care provider is what an ordinarily prudent health care provider would do under the same or similar circumstances. Creech , 411 S.W.3d at 6. In a medical malpractice case, the plaintiff ordinarily must produce expert testimony to establish the applicable standard of care and causation if those matters are not within the experience of a layperson. Id. Thus, to establish negligence in this case, Windrum had to demonstrate, by a preponderance of the evidence, (1) that Dr. Kareh had a duty to place a shunt in Lance's brain when he saw him on February 4, 2010, (2) that Dr. Kareh's failure to place the shunt in Lance's brain at that time fell below the standard of care of a reasonably prudent neurosurgeon, and (3) that, but for Dr. Kareh's failure to place the shunt in Lance's brain at that time, Lance would not have suffered sudden death on May 2, 2010.
Texas Rule of Evidence 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." TEX. R. EVID. 702, 61 TEX. B.J. 374, 392 (Tex. & Tex. Crim. App. 1998, amended 2015). " ‘It is the basis of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that can settle an issue as a matter of law: a claim will not stand or fall on the mere ipse dixit of a credentialed witness.’ " Coastal Transp. Co. v. Crown Cent. Petroleum Corp. , 136 S.W.3d 227, 232 (Tex. 2004) (quoting Burrow v. Arce , 997 S.W.2d 229, 235 (Tex. 1999) ): Gammill v. Jack Williams Chevrolet, Inc. , 972 S.W.2d 713, 726 (Tex. 1998)("[T]here must be some basis for the opinion offered to show its reliability. Experience alone may provide a sufficient basis for an expert's testimony in some cases, but it cannot do so in every case.").
Effective April 1, 2015, the Texas Supreme Court adopted amendments to the Texas Rules of Evidence. See 78 Tex. B.J. 42, 42 (Tex. 2015). The revisions to Rule 702 was stylistic and does not affect the substance of the rules. All further citations to the Rules of Evidence refer to the rules as they existed at the time of the parties' trial.
Opinion testimony that is conclusory or speculative is not relevant evidence because it does not tend to make the existence of a material fact "more probable or less probable." Coastal Transp. Co. , 136 S.W.3d at 232 (quoting TEX. R. EVID. 401) : see also Havner , 953 S.W.2d at 712 ("When the expert ‘br[ings] to court little more than his credentials and a subjective opinion,’ this is not evidence that would support a judgment.") (quoting Viterbo v. Dow Chem. Co. , 826 F.2d 420, 421 (5th Cir. 1987) ): Cooper Tire & Rubber Co. v. Mendez , 204 S.W.3d 797, 801 (Tex. 2006) ("If the expert brings only his credentials and a subjective opinion, his testimony is fundamentally unsupported and therefore of no assistance to the jury."). "It is incumbent on an expert to connect the data relied on and his or her opinion and to show how that data is valid support for the opinion reached." Whirlpool Corp. v. Camacho , 298 S.W.3d 631, 642 (Tex. 2009).
The trial court, as the "gatekeeper" of expert testimony, has the threshold responsibility of "ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Gammill , 972 S.W.2d at 728 (quoting Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 597, 113 S.Ct. 2786, 2799, 125 L.Ed.2d 469 (1993) ). Expert testimony is conclusory if there is no factual basis for it or if the basis offered does not, on its face, support the opinion. CCC Grp., Inc. v. S. Cent. Cement, Ltd. , 450 S.W.3d 191, 202 (Tex. App.–Houston [1st Dist.] 2014, no pet.) (citing City of San Antonio v. Pollock , 284 S.W.3d 809, 817 (Tex. 2009) ). Where experts rely on experience or training to reach their opinions, rather than on a particular methodology, a reviewing court considers whether there is too great an analytical gap between the data and the opinion proffered for the opinion to be reliable. Moreno v. Ingram , 454 S.W.3d 186, 193 (Tex. App.–Dallas 2014, no pet.) (citing Gammill , 972 S.W.2d at 726 ). In conducting a no-evidence review involving expert testimony, we "cannot consider only an expert's bare opinion, but must also consider contrary evidence showing it has no scientific basis." Mendez , 204 S.W.3d at 804 (quoting City of Keller , 168 S.W.3d at 813 ). "[I]f an expert's opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded." Id. (quoting City of Keller , 168 S.W.3d at 813 ). "It is not enough for an expert simply to opine that the defendant's negligence caused the plaintiff's injury. The expert must also, to a reasonable degree of medical probability, explain how and why the negligence caused the injury." Jelinek , 328 S.W.3d at 536.
We conclude that, here, Windrum failed to carry her burden of proving by a preponderance of the evidence the elements of medical negligence required to hold Dr. Kareh liable in this case.
1. Duty to Place a Shunt on February 4, 2010, and Breach of that Duty
To prove that Dr. Kareh's care of Lance fell below the standard of care of an ordinarily prudent neurosurgeon seeing a patient with symptoms of hydrocephalus for the first time, Windrum had to establish by a preponderance of the evidence that Dr. Kareh had a duty to place a shunt in Lance's brain immediately following that visit on February 4, 2010, or, at the latest, at the time Dr. Kareh last treated Lance on February 22, 2010.
Windrum relied on the expert testimony of Dr. Parrish to establish the essential elements of the standard of care applicable to neurosurgeons, Dr. Kareh's breach of the standard of care, and causation. Dr. Parrish testified that, in his opinion, Dr. Kareh "should have put a shunt in when he saw Mr. Windrum in the hospital" in February because Lance "had these classic symptoms of increased intracranial pressure with staggering, slurred speech, and altered mental status that were periodic." He testified that the presence of a classic symptom like papilledema—which was absent in this case—is "very significant" but not a necessary for a finding of increased intracranial pressure and that its absence is "not so significant." Dr. Parrish stated that the February MRI indicated "that there is at some time increased intracranial pressure, increased intraventricular pressure." He opined that "[t]hose ventricles got big somehow, and they were blown up by the increased pressure."
Dr. Parrish also testified that Lance's symptoms, plus the February 2010 MRI, which revealed aqueductal stenosis, "equals a shunt" "[e]very time." He testified that the standard of care required Dr. Kareh to offer a shunt to Lance. He acknowledged that the balance problems, slurred speech, and confusion were "generic symptoms," but, combined with the February 2010 MRI, those symptoms "are the light bulb that needs to go off and say this requires a shunt." Dr. Parrish also acknowledged that there are "real risks" to performing surgery to install a shunt, but he state that the risks were "very rare" and "fairly low."
Dr. Parrish concluded that, to comply with the standard of care, a reasonable, prudent neurosurgeon would have:
[M]ade the right diagnosis, obstructive hydrocephalus. Symptomatic obstructive hydrocephalus. Number two, he would have recommended a shunt or some definitive procedure to treat the hydrocephalus. And, three, he would have properly informed the patient and the patient's family what would happen if he got a shunt, the reasonable things that would happen if he got a shunt. But even more importantly or as important I guess I would say, the benefit of getting the shunt and the risk of not getting a shunt.
Dr. Parrish presented no medical literature to support his opinion that the standard of care required the placement of a shunt "every time" when Dr. Kareh saw Lance in early February 2010. And his testimony that Dr. Kareh should have "recommended a shunt or some definitive procedure to treat the hydrocephalus" and that Lance and his family should have been informed of the risks and benefits of a shunt is some evidence that a patient presenting with Lance's symptoms does not "equal[ ] a shunt" "every time."
Other testimony by Dr. Parrish also undermined his claim that it was professional negligence, or malpractice, for Dr. Kareh not to install a shunt in Lance's brain on February 4, 2010. On cross-examination, Dr. Parrish agreed that there was no "microscopic evidence" of increased intracranial pressure at the time of Lance's autopsy in May 2010. He also agreed that Lance had increased intracranial pressure"at some point" in his life and that it was possible that his ventricles had enlarged and then remained the same size ever since he had had encephalitis as a child. Dr. Parrish acknowledged that, while Lance had some "classic symptoms" of increased intracranial pressure when he was seen by Dr. Kareh, such as slurred speech, confusion, and balance problems, he did not have other classic symptoms, such as widened pulse pressure, low heart rate, papilledema, nausea, or vomiting. He further agreed that the symptoms with which Lance presented to NCMC were consistent with other conditions and that Lance "got better really fast" while in the hospital. Dr. Parrish opined that Lance's symptoms could have been relieved because he "had enough [intraventricular] pressure that he opened up the aqueduct, and he started draining [cerebrospinal fluid] again" without a shunt.
Dr. Kareh saw Lance one other time after his initial presentment to NCMC—on February 22, 2010—and Lance reported at that appointment that he had had one headache episode and one episode of slurred speech. Dr. Kareh did not see Lance after that. Rather, Lance returned to Dr. Gill, and another MRI was ordered. The April 2010 MRI revealed changes both in the size of Lance's ventricles and in the angle of the aqueduct relative to the February 2010 MRI. It is undisputed that no one informed Dr. Kareh of the headaches that Lance experienced in April 2010 or of the April MRI scan. Windrum's experts concurred that Lance's sudden death was due to a complete obstruction of the aqueduct. All of the experts agreed, however, that, when Dr. Kareh saw Lance in February, the aqueduct, although narrowed, was open and cerebrospinal fluid was passing through the aqueduct. Although the April MRI revealed a worsening problem, no evidence showed that Dr. Kareh was advised of the results of that MRI.
Dr. Parrish did not point to any medical literature, such as peer-reviewed studies or authoritative treatises or texts, which stated that the immediate placement of a shunt is required when monitoring of intracranial pressure reveals no sustained increase in pressure and the patient's symptoms have subsided. And, although Dr. Kareh presented evidence that shunt placement is not appropriate when intracranial pressure levels are within normal range and pressure monitoring does not reflect a sustained increase in pressure, Windrum presented no evidence other than Dr. Parrish's testimony that shunt placement is necessary "every time." Thus, there was no evidence other than Dr. Parrish's unsupported opinion testimony, which did not consider the April 2010 MRI changes, to establish that the standard of care always requires placement of a shunt under the circumstances presented to Dr. Kareh on February 4, 2010. See Coastal Transp. Co. , 136 S.W.3d at 232 (providing that opinion testimony that is conclusory or speculative is not relevant evidence and cannot support judgment): Burrow , 997 S.W.2d at 235. Although Dr. Parrish has experience placing shunts in patients, he identified nothing in that experience to support the conclusion that every failure to place a shunt in those circumstances constitutes a breach of the standard of care by omission.
Although Dr. Parrish testified that shunt-placement surgery has its risks, as is true of all surgeries, and that he considered the risks in this case to be "fairly low," neither Dr. Parrish nor any of Windrum's other witnesses addressed the risks that Dr. Neely testified to concerning placement of a shunt in a patient who at the time of placement does not have increased intracranial pressure. See Ponte v. Bustamante , 490 S.W.3d 70, 80 (Tex. App.–Dallas 2015, pet. granted) ("When the evidence shows that a particular treatment helps some patients and not others, the expert must explain the facts justifying a conclusion that a particular patient probably would have been helped by the treatment."). Such evidence is particularly critical when the alleged negligence is the failure to perform an operation as opposed to negligence in actually performing it.
Windrum argues that all of the testifying physicians agreed that the standard of care required either a shunt or a "third ventriculostomy," and she points to the testimony of Dr. Gill, the treating neurologist in this case, and Dr. Evans, a neurologist who had been retained by Dr. Gill. Dr. Gill agreed with Windrum's counsel that "the applicable standard of care is that the treatment for obstructive hydrocephalus is either a shunt or a third ventriculostomy." He also testified, however, that he agreed with Dr. Kareh's suggestion that a shunt was not necessary in this case: that, if he had not agreed, he would have "done something," such as refer Lance to another neurosurgeon: and that he agreed with the decision to discharge Lance without surgical intervention because Lance did not demonstrate a sustained increase in intracranial pressure, his headaches had improved, and he "was feeling better." Dr. Evans agreed that for most patients, unless they have a "specific physical impairment like age or a heart condition," "surgical intervention is going to be the appropriate thing to do," although he acknowledged there are risks associated with shunt surgery.
Neither Dr. Gill nor Dr. Evans testified concerning the specific risks of placing a shunt when the patient does not have increased intracranial pressure. Dr. Kareh also presented evidence that shunt placement was not appropriate in this case due to the monitoring results, which indicated that Lance was not suffering from increased intracranial pressure at the time Dr. Kareh was consulting on his case. See Mendez , 204 S.W.3d at 804 (stating that, in conducting no-evidence review involving expert testimony, courts "cannot consider only an expert's bare opinion, but must also consider contrary evidence showing it has no scientific basis"). Dr. Parrish's opinion fails to account for these risks or for Lance's worsening symptoms and test results two months later, which the jury heard evidence about but which Dr. Kareh did not have in February when he treated Lance.
In sum, Windrum presented no evidence concerning the standard of care and Dr. Kareh's breach of the standard of care beyond Dr. Parrish's conclusory testimony. See Coastal Transp. Co. , 136 S.W.3d at 232 ("It is the basis of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that can settle an issue as a matter of law: a claim will not stand or fall on the mere ipse dixit of a credentialed witness."): see also Mendez , 204 S.W.3d at 801 ("If the expert brings only his credentials and a subjective opinion, his testimony is fundamentally unsupported and therefore of no assistance to the jury."). We therefore conclude that Windrum failed to present legally or factually sufficient evidence of an essential element of her cause of action. See Creech , 411 S.W.3d at 5–6 (stating that essential element of medical malpractice cause of action is breach of legal duty and that standard of care in medical malpractice suit is what ordinarily prudent health care provider would do under same or similar circumstances).
2. Proximate Cause of Lance's Death
We further conclude that, even if Dr. Kareh's actions did fall below the standard of care, Windrum failed to establish that Dr. Kareh's actions proximately caused Lance's death. Thus, Windrum failed to prove the essential causation element of negligence.
"Proximate cause" includes both cause in fact, meaning that "the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred," and foreseeability. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143 S.W.3d 794, 798–99 (Tex. 2004) : Tejada v. Gernale , 363 S.W.3d 699, 709 (Tex. App.–Houston [1st Dist.] 2011, no pet.) (noting that evidence showing only that defendant's negligence furnished condition that made injuries possible is insufficient to show proximate cause and that proximate cause cannot be established by "mere conjecture, guess, or speculation"). Cause in fact is not established where a defendant's actions do no more than furnish a condition which makes the injuries possible. Givens v. M&S Imaging Partners, L.P. , 200 S.W.3d 735, 738 (Tex. App.–Texarkana 2006, no pet.). In such a case, the defendant's conduct is too attenuated from the resulting injuries to be a substantial factor in bringing about the harm. Id. : see also Providence Health Ctr. v. Dowell , 262 S.W.3d 324, 328–29 (Tex. 2008) (holding that discharge of patient from emergency room, when patient had presented to emergency room with self-inflicted cut on wrist and then committed suicide thirty-three hours after discharge, "was simply too remote from his death in terms of time and circumstances" and, thus, plaintiffs presented insufficient evidence of proximate cause). "Foreseeability means the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act created for others," but it does not "require a person to anticipate the precise manner in which injury will occur once the person creates a dangerous situation through his negligence." Taylor v. Carley , 158 S.W.3d 1, 9 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).
Dr. Parrish agreed with defense counsel that the April MRI revealed that Lance's symptoms were progressing and that Lance could have survived "if he'd had a shunt done the day before he died," indicating that any failure by Dr. Kareh to place a shunt when he saw Lance in February 2010 was not an immediate cause of death. All of the doctors who testified in this case, including Dr. Kareh's experts, agreed that placement of a shunt can be an appropriate treatment for a patient presenting with obstructive hydrocephalus caused by aqueductal stenosis when there is a build-up of cerebrospinal fluid in the brain. There was no such evidence of cerebrospinal fluid buildup in February 2010. Instead, Lance's intracranial pressure was normal, with occasional spikes in the pressure above a normal range and no sustained increase in pressure. All of the neurological symptoms with which Lance had presented to NCMC were resolved by the time the period of intracranial pressure monitoring ended. When Lance saw Dr. Kareh for a follow-up appointment almost three weeks later, he had had only one additional headache episode and one additional episode of slurred speech. Lance did not see Dr. Kareh again, and there is no evidence Dr. Kareh was ever informed of the changes to Lance's aqueduct visible on the April MRI or of the additional headache episodes that he experienced in April. We conclude that, as a matter of law, Dr. Kareh's decision not to recommend placement of a shunt on February 4, 2010, was too remote from Lance's death on May 2, 2010, to be a proximate cause of Lance's death. See Dowell , 262 S.W.3d at 328–29 : Givens , 200 S.W.3d at 742.
We hold that because essential elements of Windrum's medical malpractice cause of action are not supported by legally sufficient evidence, the trial court erred in entering judgment in favor of Windrum on that claim.
Because we hold that no evidence supports essential elements of Windrum's cause of action, we need not address Dr. Kareh's remaining issues on appeal.
We reverse the judgment of the trial court and render judgment that the trial court enter a take-nothing judgment against Windrum on Windrum's medical malpractice claim.
Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Huddle, and Lloyd participated in the vote to determine en banc consideration.
A majority of the Court voted to deny en banc consideration. See Tex. R. App. P. 49.7
Justice Jennings, joined by Justices Higley and Lloyd, dissenting from the denial of en banc consideration.
Justice Brown, dissenting from the denial of en banc consideration.
DISSENTING FROM DENIAL OF EN BANC RECONSIDERATION
Harvey Brown Justice
I respectfully dissent from the Court's order denying en banc reconsideration. En banc review would provide an opportunity for the Court to clarify two parts of the panel's opinion that might otherwise be misinterpreted in a way that conflicts with Texas law. This opinion is intended to provide context for these parts of the panel's opinion to reduce the risk of misinterpretation.
The first possible misinterpretation is that the panel is suggesting that an expert's negligence opinion cannot be based on experience. It can. It is just that when an expert relies on experience as the basis for an opinion, the expert must explain the experience so the jurors can meaningfully review it. The second is that the panel is suggesting that an expert's negligence opinion is conclusory if the expert does not identify any supporting literature. That is not necessarily true. Whether an expert's opinion is conclusory does not turn on whether an expert can identify supporting literature: instead, it turns on whether an expert who relies on literature as the basis for an opinion has adequately explained the literature's applicability so jurors can meaningfully review the opinion.
The expert opinion at issue here was given by neurosurgeon Dr. Robert Parrish on behalf of Tracy Windrum. Dr. Parrish testified that Dr. Kareh was negligent. Dr. Kareh objected to Dr. Parrish's causation opinion before trial but did not object to his negligence opinion. The Texas Supreme Court has held that a party may challenge an expert's opinion for the first time post-verdict as long as the challenge is that the opinion was conclusory and therefore was no evidence. Coastal Transp. Co. v. Crown Cent. Petroleum Corp ., 136 S.W.3d 227, 232–33 (Tex. 2004) (holding that conclusory expert opinion "does not constitute evidence of probative force," meaning that it is "non-probative on its face" and "no evidence").
Professors Goode and Wellborn argue that the Texas Supreme Court should revisit its opinions allowing challenges to expert testimony as conclusory to be raised for the first time post-verdict. See 2 Steven Goode & Olin Guy Wellborn III, Texas Practice Series, Guide To the Texas Rules of Evidence § 702.1, at 31–33 (4th ed. 2016): see also Harvey Brown & Melissa Davis, Eight Gates for Expert Witnesses: Fifteen Years Later, 52 Hous. L. Rev. 1, 50–68, 82–93 (2014). In this case, for example, if faced with an objection that Dr. Parrish's opinion on the standard of care was conclusory, Windrum would have had an opportunity to develop a fuller record on his experience.
Dr. Maria Cristin Payan testified that "hydrocephalus" is an excess production of cerebrospinal fluid, a lack of reabsorption of cerebrospinal fluid, or a dysfunction in the passage of cerebrospinal fluid.
Dr. Kareh makes this new challenge to Dr. Parrish's negligence opinion, and the panel agrees, holding that Dr. Parrish's negligence opinion was conclusory and no evidence. In his dissent from denial of en banc reconsideration, Justice Jennings disagrees. The disagreement between the panel and Justice Jennings is not surprising because the line between an opinion that is conclusory and one that is not is sometimes difficult to draw. Arkoma Basin Expl. Co. v. FMF Assocs. 1990–A, Ltd. , 249 S.W.3d 380, 388 (Tex. 2008).
When is expert testimony conclusory?
The Texas Supreme Court has identified several circumstances in which expert testimony is conclusory. One circumstance is when an expert asks the jury to take his word for it that his opinion is correct. Harvey Brown & Melissa Davis, Eight Gates for Expert Witnesses: Fifteen Years Later , 52 HOUS. L. REV. 1, 51 (2014) ("A principal basis the Texas Supreme Court has used to identify ‘conclusory’ expert testimony is whether the expert has identified the basis for his opinion or whether the jury essentially must take the expert's word for it."): see Arkoma , 249 S.W.3d at 389 (noting that conclusory expert testimony asks "jurors to ‘take my word for it’ "). An expert asks the jury to take his word for it when the expert offers only his "bald assertion" or "bald assurance" that his opinion is correct. Gen. Motors Corp. v. Sanchez , 997 S.W.2d 584, 591 (Tex. 1999).
The Court's opinions reveal five different circumstances. Fifteen Years Later, 52 Hous. L. Rev. at 67–68.
Dr. Randolph Evans testified that "aqueductal stenosis" is one form of obstructive hydrocephalus.
A second circumstance in which an expert opinion can be conclusory is when the expert's explanation or offered basis is facially defective in some manner. Fifteen Years Later , 52 HOUS. L. REV. at 53. As the Texas Supreme Court explained in City of San Antonio v. Pollock , expert testimony is conclusory not only when the expert offers "no basis for the opinion" but also when "the basis offered provides no support" for the opinion. 284 S.W.3d 809, 818 (Tex. 2009). This occurs, for example, when the data simply does not support the conclusion, such as when the offered support contradicts the expert's opinion, does not say what the expert says it does, or does not apply to the issue before the jury.
A third circumstance is when the expert offers only his word that the claimed basis—such as facts, data, or literature—supports the opinion without connecting the basis to the opinion. An expert "must ‘connect the data relied on and his or her opinion’ and ‘show how that data is valid support for the opinion reached.’ " Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch , 443 S.W.3d 820, 835 (Tex. 2014) (citations omitted) (quoting Whirlpool Corp. v. Camacho , 298 S.W.3d 631, 642 (Tex. 2009) ).
Under well-established precedent from the Texas Supreme Court, if the expert does not explain the link between the data and the conclusion, a "fatal analytical gap" exists and the opinion is conclusory. Elizondo v. Krist , 415 S.W.3d 259, 265 (Tex. 2013) (holding that expert's opinion was conclusory despite reliance on experience because of lack of adequate explanation for how experience led to opinion). The explanation must provide jurors "sufficient information to make a meaningful evaluation" of the expert's opinion. El Apple I, Ltd. v. Olivas , 370 S.W.3d 757, 762 (Tex. 2012) (requiring attorney's fee expert to provide "sufficient information to make a meaningful evaluation of the application for attorney's fees"). Absent a meaningful explanation, jurors are left with simply taking the expert's word for it that the claimed basis supports the opinion.
See also Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010) (stating that medical expert must "explain how and why the negligence caused the injury" and "explain why" his causation opinion was superior to opinion of other experts and failure "to give any reason beyond an unsupported opinion" renders the opinion incompetent): Wal–Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 840 (Tex. 2010) (holding that, because plaintiffs' expert failed to "explain or adequately disprove alternate theories of causation," his theory was conclusory): Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 902, 906, 911 (Tex. 2004) (noting that expert did not attempt to "explain how" certain events occurred in accident or to "explain how any of the research or tests he relied on support his conclusion" and holding that his opinions were conclusory): Kerr–McGee Corp. v. Helton, 133 S.W.3d 245, 258 (Tex. 2004) (holding that expert opinion was "incompetent" and "no evidence" when expert "failed to sufficiently explain" how data supported opinions), abrogated on other grounds by Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008) : Burrow v. Arce, 997 S.W.2d 229, 236 (Tex. 1999) (holding that expert's affidavit was conclusory because, even though he identified three factors considered in reaching conclusion, he did not "explain why" those factors supported his opinion): cf. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998) (stating that the "gap" in expert's opinion was "failure to show how" underlying data "supported his conclusions").
It is the expert's explanation of "how and why" that forms the "sound evidentiary basis" for an opinion. Jelinek v. Casas , 328 S.W.3d 526, 536 (Tex. 2010). When "the expert's explanation is at such a general level that it offers no meaningful information to the jury to enable it to review the reliability of the opinion," it is conclusory. Fifteen Years Later , 52 HOUS. L. REV. at 67.
The rule precluding conclusory expert testimony "is not a mere procedural hurdle." Shenoy v. Jean , No. 01-10-01116-CV, 2011 WL 6938538, at *6 (Tex. App.–Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem. op.). Without meaningful explanation, the jurors are left with only the expert's credentials to evaluate the reliability of the expert's opinion. See In re Christus Spohn Hosp. Kleberg , 222 S.W.3d 434, 440 (Tex. 2007) (explaining that jurors need access to data underlying expert's testimony "to accurately assess the testimony's worth"). Juries are "often confronted with conflicting expert testimony." Shenoy , 2011 WL 6938538, at *6. "It is the expert's explanation of ‘how’ and ‘why’ causation exists that allows the factfinder to weigh the credibility of the expert's opinion and, when expert opinions conflict, to decide which testimony to disregard." Id.
The no-conclusory-expert-opinions rule ensures that "the evidentiary value of expert testimony" is not based solely on credentials—that the testimony's value "is derived from its basis, not from the mere fact that the expert has said it." Hou. Unlimited , 443 S.W.3d at 829 : see generally Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 706, 712–13 (Tex. 1997) (noting that underlying data must be available so it can be independently evaluated). No expert, no matter how well-qualified, may offer an opinion without providing a basis that jurors may evaluate. Cooper Tire & Rubber Co. v. Mendez , 204 S.W.3d 797, 801 (Tex. 2006). "If the expert brings only his credentials and a subjective opinion, his testimony is fundamentally unsupported." Id. : see Burrow v. Arce , 997 S.W.2d 229, 235 (Tex. 1999) (noting that "it is the basis of the [expert] witness's opinion, and not the witness's qualifications," that determine reliability).
Experience may be an adequate basis for an expert's negligence opinion
The panel acknowledges in passing that experience can provide an adequate basis for an expert's opinion. See Gammill v. Jack Williams Chevrolet, Inc. , 972 S.W.2d 713, 726 (Tex. 1998) (stating that "[e]xperience alone may provide a sufficient basis for an expert's testimony in some cases"). This principle applies to all experts, including physicians in medical negligence cases. But because the panel's opinion never discusses the adequacy of Dr. Parrish's experience treating obstructive hydrocephalus as a basis for his negligence opinions, it could be misinterpreted as holding that experience alone cannot provide an adequate basis.
See, e.g., Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 406 (3d Cir. 2003) (holding cardiologist's opinion on standard of care for administration of drug was sufficiently reliable, despite lacking evidence that opinion was generally accepted or was set forth in peer-reviewed publication, because it was based on cardiologist's experience).
When a physician testifies about the "ordinary care" that physicians should provide under "the same or similar circumstances," that opinion is often based, at least in part, on the physician's own experience. But an expert may not claim experience as a mantra to insulate her opinion from challenge. See Volkswagen of Am., Inc. v. Ramirez , 159 S.W.3d 897, 905–06 (Tex. 2004) (holding that expert's incantation of "basic scientific and some engineering principles" and "reliance on the ‘laws of physics,’ without more, is an insufficient explanation").
These are the legal standards for determining medical negligence under Texas law and the Texas Pattern Jury Charge. See Texas Pattern Jury Charges: Malpractice, Premises & Products PJC 50.1 (2014).
The expert who relies on her experience as the basis for an opinion must provide at least some general description of her experience. In a medical negligence case, the physician must provide at least some general explanation regarding how often the physician has treated a patient with similar symptoms or conditions under similar circumstances. Or, if the expert has not personally done so but relies on the experiences of other physicians, the expert must explain her observations of other physicians' experiences or describe the source of her information—such as discussions with other physicians, lectures, treatments given during rounds, or discussions during various meetings. Without such an explanation, the jury cannot evaluate whether the expert has encountered circumstances that were "the same or similar" or what the "ordinary care" would be under the circumstances.
For example, an expert physician may know how other physicians have treated a condition at her hospital or clinic. Evidence of custom is admissible in a medical negligence case. Kissinger v. Turner, 727 S.W.2d 750, 755 (Tex. App.–Fort Worth 1987, writ ref'd n.r.e.) : see generally Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972) (noting that evidence of custom is pertinent in determining negligence).
If the expert testifies simply that, based on her experience, the treating physician met or did not meet the ordinary-care standard, that negligence opinion would be conclusory. "An expert cannot globally claim that his opinion is based on his ... experience." Fifteen Years Later , 52 HOUS. L. REV. at 154. Rather, the "expert must provide some estimate of his experience." Id. "This requirement typically is not satisfied by a ‘random experience’ or an ‘isolated case.’ " Id. at 155 (quoting Minn. Mining & Mfg. Co. v. Atterbury , 978 S.W.2d 183, 200–01 (Tex. App.–Texarkana 1998, pet. denied) ). On the other hand, "extensive ‘experience can suffice to validate a proposition even when the experience cannot be precisely quantified.’ " Id . at 155–56 (quoting Edward J. Imwinkelried, The Meaning of "Appropriate Validation" in Daubert v. Merrell Dow Pharmaceuticals, Inc., Interpreted in Light of the Broader Rationalist Tradition, Not the Narrow Scientific Tradition , 30 FLA. ST. U. L. REV. 735, 747 (2003) ). If the expert "is relying solely or primarily on experience," the expert "must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." FED. R. EVID. 702 advisory committee's note.
In medical-negligence cases, the determination of what a reasonably prudent physician would do "under a given set of circumstances involves a normative analysis." Fifteen Years Later , 52 HOUS. L. REV. at 246. Thus, "courts require experts to be sufficiently specific in explaining how they derived the applicable standard of care from their specialized knowledge, training, and experience so that juries can make the necessary normative judgments." Id. at 247.
As part of that normative judgment, a proponent of an expert negligence opinion that relies exclusively on the expert's experience as the basis for the opinion is asking the jury to take that experience—fact A—and then draw an inference from it as to the standard of care for a reasonably prudent physician—fact B—to conclude that the defendant physician did or did not meet that standard. "The physician's experience alone is insufficient to make a logical inferential determination that her practice is the same as the standard of care, that requires evidence of what other physicians do or do not do under the same or similar circumstances." Id. at 158.
The testimony of what a particular physician has done or would have done under the circumstances—fact A—is insufficient to establish the standard of care for other physicians. See Montet v. Narcotics Withdrawal Centers, Inc., No. 14-99-01401-CV, 2001 WL 1287384, at *6 (Tex. App.–Houston [14th Dist.] Oct. 25, 2001, no pet.) ("What a testifying expert personally would or would not have done or what he would like to have seen done under the same or similar circumstances is not sufficient to establish the requisite standard of care."): see also Hernandez v. Nueces Cty. Med. Soc. Cmty. Blood Bank, 779 S.W.2d 867, 870 (Tex. App.–Corpus Christi 1989, no writ). Something more is required—fact B.
For this reason, in most medical-negligence cases, the parties use physician experts who rely not only on their own experience but on other data to establish the standard of care. But just because experts frequently rely on medical literature to supply that "something more" does not necessarily mean that the law requires such literature. I turn to that issue next.
The absence of supportive literature does not necessarily make the opinion conclusory
The panel's opinion could be misinterpreted to suggest that an expert's negligence opinion is conclusory if it is not based on supportive literature. And in a medical malpractice case, the panel's opinion could be read to suggest that a physician's opinion on the appropriate care that another physician should have provided is conclusory if the expert fails to identify supportive medical literature. Such a reading would be incorrect. An expert is not required to identify supportive literature to avoid a holding that the expert's opinion is conclusory.
A qualified physician may provide non-conclusory opinion testimony on how a physician should treat a medical condition without reference to supportive literature, provided the expert has another adequate basis for the opinion. The same is true for other negligence claims. Supportive literature is not necessary: what is necessary is an adequate basis for the opinion.
Dr. Parrish testified that his "opinions" (plural) are "support[ed]" by medical literature. But he did not identify the particular opinion that is supported by the literature. Nor did he read to jurors the portions of the literature that support his negligence opinion (assuming Evidence Rule 803(18)'s predicates have been satisfied) or explain how the literature supports his negligence opinion. If an expert relies solely on literature as the basis for an opinion, offers only a general recitation to the literature, and does not explain how the data—the literature—supports the expert's opinion, the opinion is conclusory. In such a case, the jurors are being asked to take the expert's word for it that the literature supports the opinion, which is not permissible.
Without information about the content of the literature, the jury must determine the weight to give the expert's opinion based on the only evidence it has: the expert's qualifications and general credibility. That is not enough. Pollock , 284 S.W.3d at 818 (stating that, if "the basis offered" as a foundation for an expert opinion "provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence"): see Ramirez , 159 S.W.3d at 913 (Hecht, J., concurring) (observing that validity of expert's opinions "can be measured by one thing, and one thing only: his personal credibility.").
Because I see two areas of possible misinterpretation of the panel's opinion and a need to clarify the law to avoid such misinterpretations, I respectfully dissent from the denial of en banc reconsideration.
Justice Harvey Brown, dissenting from denial of en banc reconsideration.
OPINION DISSENTING FROM DENIAL OF EN BANC RECONSIDERATION
Terry Jennings Justice
The panel errs in holding that the evidence is legally insufficient to support the jury's finding that the negligence of appellant, Victor Kareh, M.D., caused the death of Lancer Windrum ("Lance"): reversing the judgment of the trial court in favor of Lance's wife, appellee, Tracy Windrum, individually, as representative of Lance's estate, and on behalf of their minor children, B.W., J.W., and H.W.: and rendering judgment in favor of Kareh.
In doing so, the panel erroneously concludes that Windrum presented "no evidence" of the standard of care or of a breach by Dr. Kareh toward his patient, Lance, beyond the "conclusory testimony" of Windrum's expert, Dr. Robert Parrish. The panel further erroneously concludes that, as a matter of law, Kareh's decision not to recommend the placement of a shunt to maintain the flow of cerebrospinal fluid through Lance's brain was "too remote" to have been the proximate cause of Lance's subsequent death because Lance could have survived if he had somehow "had a shunt done the day before he died."
Because the panel substitutes its judgment for that of the jury on credibility issues and disregards substantial evidence and well-settled legal-sufficiency principles, I respectfully dissent from this Court's denial of en banc reconsideration of this case. See TEX. R. APP. P. 41.2(c).
Legal–Sufficiency Standard and Principles
We are to sustain a legal-sufficiency or "no-evidence" challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In conducting a legal- sufficiency review, a court must consider evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. Id. at 822. The term "inference" means,
In the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved ....
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.–Houston [1st Dist.] 1993, writ dism'd w.o.j.) (quoting Inference , BLACK'S LAW DICTIONARY (5th ed. 1979)). For a jury to infer a fact, "it must be able to deduce that fact as a logical consequence from other proven facts." Id.
Both direct and circumstantial evidence may be used to establish any material fact. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). If there is more than a scintilla of evidence to support the challenged finding, we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). However, "when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Ford Motor Co., 135 S.W.3d at 601 (internal quotations omitted).
To raise a genuine issue of material fact, "the evidence must transcend mere suspicion." Id. Evidence that "is so slight as to make any inference a guess is in legal effect no evidence." Id. If the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. City of Keller, 168 S.W.3d at 822. However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the fact-finder must be allowed to do so. Id. A reviewing court cannot substitute its judgment for that of the fact-finder, so long as the evidence falls within this zone of reasonable disagreement. Id.
"It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection." Coastal Transp. Co. v. Crown Cent. Petroleum Corp ., 136 S.W.3d 227, 232 (Tex. 2004) (quoting Dall. Ry. & Terminal Co. v. Gossett , 156 Tex. 252, 294 S.W.2d 377, 380 (1956) ). Opinion testimony that is conclusory or speculative does not tend to make the existence of a material fact "more probable or less probable," and it is neither relevant nor competent. Id. (quoting TEX. R. EVID. 401 ). "[I]t is the basis of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that can settle an issue as a matter of law: a claim will not stand or fall on the mere ipse dixit of a credentialed witness." Burrow v. Arce , 997 S.W.2d 229, 235 (Tex. 1999) : see also Ipse dixit , BLACK'S LAW DICTIONARY (8th ed. 2004) ("ipse dixit [Latin ‘he himself said it’] Something asserted but not proved" (alteration in original)).
An expert's opinion is conclusory "if no basis for the opinion is offered, or the basis offered provides no support " for the opinion. City of San Antonio v. Pollock , 284 S.W.3d 809, 818 (Tex. 2009) (emphasis added): see also Arkoma Basin Expl. Co. v. FMF Assocs. 1990–A, Ltd ., 249 S.W.3d 380, 389 (Tex. 2008) (expert's opinion is conclusory if he "simply state[s] a conclusion without any explanation" or asks jurors to just "take [his] word for it") (citing Conclusory , BLACK'S LAW DICTIONARY (8th ed. 2004) (defining "conclusory" as "[e]xpressing a factual inference without stating the underlying facts on which the inference is based")). Opinion testimony that amounts to "mere conjecture, guess, or speculation" is not sufficient. IHS Cedars Treatment Ctr. v. Mason , 143 S.W.3d 794, 798–99 (Tex. 2004) : Price v. Divita , 224 S.W.3d 331, 337 (Tex. App.–Houston [1st Dist.] 2006, pet. denied). The expert "must explain the basis of his statements to link his conclusions to the facts." Earle v. Ratliff , 998 S.W.2d 882, 890 (Tex. 1999). He "must also, to a reasonable degree of medical probability, explain how and why the negligence caused the injury." Jelinek v. Casas , 328 S.W.3d 526, 536 (Tex. 2010).
In evaluating whether an expert's testimony is legally sufficient, we "cannot consider only [the] expert's bare opinion, but must also consider contrary evidence showing it has no scientific basis." City of Keller , 168 S.W.3d at 813 : see also Volkswagen of Am., Inc. v. Ramirez , 159 S.W.3d 897, 910–11 (Tex. 2004) (in evaluating whether expert's testimony is speculative or conclusory, we review entire record, not just expert's statements in isolation). "[I]f an expert's opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded." City of Keller , 168 S.W.3d at 813. However, merely because an expert's testimony "could have been a lot clearer" does not render it speculative or conclusory as a matter of law. Arkoma Basin Explor. Co., Inc. , 249 S.W.3d at 389.
The first major erroneous conclusion of the panel is that Windrum "presented no evidence concerning the standard of care and Dr. Kareh's breach of the standard of care beyond Dr. Parrish's conclusory testimony." The record shows that Parrish specifically testified that the applicable standard of care required that Kareh:
[Make] the right diagnosis[:] ... Symptomatic obstructive hydrocephalus. Number two, ... recommend[ ] a shunt or some definitive procedure to treat the hydrocephalus. And, three, ... properly inform[ ] the patient and the patient's family ... [of] the reasonable things that would happen if he got a shunt. But even more importantly or as important ... the benefit of getting the shunt and the risk of not getting a shunt.
And the record reveals that Parrish detailed the factual basis of his opinion and explained how and why the standard of care required Kareh to recommend the placement of a shunt. See Jelinek , 328 S.W.3d at 536 : Pollock , 284 S.W.3d at 818.
Dr. Parrish first presented to the jury a foundational description of the anatomy and physiology of the human brain. He explained that cerebrospinal fluid is produced in the "ventricles," or brain cavities. And located within the brain stem, at the base of the skull, is the "aqueduct." The body requires a "continuous flow of [cerebrospinal] fluid" from the ventricles, through the aqueduct, around the brain and spinal cord, into the vena system, and back to the heart. The brain actually floats in the cerebrospinal fluid, which is "crystal clear," "acts as a buffer," contains nutrients, and carries away all the waste products from the brain. Nuclei and nerves in the brain stem regulate the autonomic functions in the body, such as heart rate and breathing. Parrish explained that "[a]ll of these centers are connected," and "[i]f you mess them up just a little bit, ... things can go very wrong." For instance, Parrish noted that a portion of the aqueduct governs wakefulness, and "[i]f a tiny little perforator goes awry, the patient never wakes up." Further, "[c]ompression on the midbrain can ... cause someone to stop breathing." And a complete obstruction of the aqueduct and interruption of the flow of cerebrospinal fluid can cause death within fifteen minutes.
Dr. Parrish further testified that Lance's medical records show that when he arrived at the hospital on February 3, 2010, he was confused, had slurred speech, and had fallen. Hours later, Lance's symptoms began to subside. He was more alert, less confused, and his speech was clearer. Parrish noted that the significance of Lance's apparent return toward normal was that,
whatever happened happened, and it's now gone. In other words, it's not like he had a stroke and he's continuing to get worse and worse and worse or he's got an expanding brain tumor that's getting bigger and bigger and he's getting worse and worse. He's got something that happened. It happened for awhile, and then it sort of seems like it fixed itself.
Lance's medical history included that he had, three times in the preceding months, experienced similar "intermittent" episodes of staggering, slurred speech, headaches, and altered mental status, which Parrish identified as "classic symptoms of increased intracranial pressure." And Lance's symptoms were "progressive" in that the first two were episodes were fairly mild, then the third, which occurred on December 24, 2009, was "pretty bad."
A magnetic resonance image ("MRI") taken of Lance's brain on February 3, 2010 confirmed that he had "obstructive hydrocephalus"1 and "clinical evidence of intracranial pressure." Dr. Parrish specifically noted that the image, which was displayed to the jury, showed that Lance's aqueduct, which was "supposed to be fairly uniform size all the way through," was not. Rather, the "top part of the aqueduct [was] enlarged compared to the bottom part, which [was] extremely small," "very tight," and "almost nonexistent." Parrish identified Lance's condition as "aqueductal stenosis,"2 and he explained that because aqueductal stenosis obstructs the flow of spinal fluid, the ventricles compensate for the pressure caused by the obstruction by becoming "bigger and bigger." Parrish showed the jury how, on the image, it was "easy to see ... pressure like you're blowing up a balloon" and that Lance had a "huge" third ventricle, which evidenced increased cranial pressure.
Dr. Parrish further explained that, importantly, something was "missing" from Lance's MRI, namely, "transependymal edema," which is seen very commonly in "normal pressure or communicating hydrocephalus." It occurs when "there is a long-term pressure, a lower but a long-term pressure which drives fluid into the ventricular walls." Parrish noted that "[o]ne doesn't see that in acute hydrocephalus and acute pressure changes." Thus, "what we're seeing here is acute pressure makes them bigger, makes them bigger, then it relaxes the pressure. Makes them bigger, makes them bigger until it gets to where they can't get any bigger, and then you [have] got a real problem."
Moreover, although Lance, while in the hospital, seemed to "g[e]t better really fast," Dr. Parrish noted that he was demonstrating "typical compensated hydrocephalus." When the aqueduct is smaller than it is supposed to be, or stenotic, it is "partially obstructed." It is more difficult for cerebrospinal fluid to flow through the aqueduct, and it takes higher pressure to force the fluid through. Lance was experiencing periods of neurological symptoms, i.e., slurring his speech and staggering, that were consistent with "acute" "very high pressure spikes." Once the pressure built to such a point that the cerebrospinal fluid finally "pushe[d] through," the symptoms resolved. Parrish explained that a person "can compensate up to a point, and at some point the time bomb goes off." And Lance's progressive symptoms demonstrated that he was "at the end of his compensation."
Dr. Parrish clarified that, based on his own experience as a neurosurgeon treating patients with "brain stem compression from acute hydrocephalus," the pairing of the "classic symptoms" with MRI results such as Lance's "equals a shunt" "[e]very time." He had "no doubt" that the standard of care required the placement of a shunt. Although Lance's symptoms might be generic if taken in isolation, Parrish noted that his symptoms were "progressive," and, "in the face of that [MRI] scan showing severe aqueductal stenosis, they are the light bulb that needs to go off and say this requires a shunt." Although such surgery always poses risks, Lance was "more likely to die of aqueduct obstruction."
Dr. Parrish further testified that, based on the above, Dr. Kareh breached the standard of care by: (1) failing to properly diagnose Lance's condition as "[s]ymptomatic obstructive hydrocephalus" and instead misdiagnosing Lance as having "[n]o hydrocephalus," (2) discharging him without "recommending a shunt or some definitive procedure to treat the hydrocephalus," and (3) discharging him without "properly informing" Lance and his family of "the benefit of getting the shunt and the risk of not getting a shunt."
The panel, without citation to authority, first argues that Dr. Parrish's testimony constitutes "no evidence," in part, because he "presented no medical literature to support his opinion that the standard of care required the placement of a shunt ‘every time’ when Dr. Kareh saw Lance in early February 2010." Again, however, Parrish specifically testified based on his experience as a neurosurgeon treating patients with "brain stem compression from acute hydrocephalus." "Experience alone may provide a sufficient basis for an expert's testimony." Gammill v. Jack Williams Chevrolet, Inc ., 972 S.W.2d 713, 726 (Tex. 1998). Moreover, the record shows that Parrish did testify that he relied on the following peer-reviewed medical literature: "Dynamic Axial Brain Stem Distortion as a Mechanism Explaining the Cardiorespiratory Changes in Increased Cranial Pressure," by R.K. Thompson and S. Malina, published by the Journal of Neurosurgery: "Sudden Unexpected Death in Young Adults with Chronic Hydrocephalus," by C.H. Rickert, published by the International Journal of Legal Medicine: and "Sudden Unexplained Death in Adults Caused by Intracranial Pressure," by D.I. Graham and M. Black, published by the Journal of Clinical Pathology.
The panel also asserts that "[o]ther testimony by Dr. Parrish ... undermined his claim that it was professional negligence, or malpractice, for Dr. Kareh not to install a shunt in Lance's brain on February 4, 2010." The panel states that Parrish "agreed that Lance had increased intracranial pressure ‘at some point’ in his life and that it was possible that his ventricles had enlarged and then remained the same size ever since he had had encephalitis as a child." A careful reading of the testimony shows, however, that Parrish explained that even if Lance had enlarged or enlarging ventricles over a period of many years, what was significant was that he had be come symptomatic . The panel also points out that Parrish agreed that Lance did not have some of the symptoms of increased intracranial pressure, such as papilledema, or swelling behind the eyes. Parrish explained, however, that such absence was not significant because "it can mean there's scar tissue around the optic nerve, which could very well have been the case with [Lance], such that the pressure can't get back to the back of the eyes." And, "in a case like this where, ... clinically, the pressure is coming and going," it is "normal and then it's so high it's going to kill him, you will not expect to see papilledema all the time."
The panel further concludes that contrary testimony established that Dr. Parrish's testimony constituted "no evidence." See City of Keller , 168 S.W.3d at 813 (in evaluating expert's testimony, court "cannot consider only [the] expert's bare opinion, but must also consider contrary evidence showing it has no scientific basis"): Ramirez , 159 S.W.3d at 910. Specifically, "Dr. Kareh presented evidence that shunt placement was not appropriate in this case due to the monitoring results, which indicated that Lance was not suffering from increased intracranial pressure at the time Dr. Kareh was consulting on his case." Dr. Harpaul Gill, Lance's treating neurologist, "agreed with the decision to discharge Lance without surgical intervention because Lance did not demonstrate a sustained increase in intracranial pressure, his headaches had improved, and he ‘was feeling better.’ " And "[n]either Dr. Gill nor Dr. [Randolph] Evans testified concerning the specific risks of placing a shunt when the patient does not have increased intracranial pressure."
However, Dr. Kareh's testimony, which was inherently contradictory and often supported that of Dr. Parrish, neither established that Lance "was not suffering from increased intracranial pressure" nor rendered Parrish's testimony insufficient. Kareh testified that although he had concluded in his written reports at the hospital that Lance had "no hydrocephalus," he agreed that Lance had "hydrocephalus" and "aqueductal stenosis," and he had meant to write that Lance had "no increased intracranial pressure." Kareh stated that the result of the intracranial pressure monitoring test that he performed on Lance was "normal" and he saw "no increased pressure." However, during the test, Lance had at least six "spikes" of increased cranial pressure above, what Kareh considered to be, the normal limit of 14.28 millimeters of mercury. During one such spike, Lance experienced a pressure of 33 millimeters of pressure. Kareh spoke with a nurse about this, but he could not recall which nurse or what the nurse told him. Kareh also explained that he never accessed Lance's actual intracranial pressure test results, although they were available on the computers at the hospital and at his office and home. He was not aware of the other elevated readings. Rather, he had relied on a nurse's log, which required the nurse to convert the computerized results, given in millimeters of mercury, to handwritten computations in centimeters of water. And Kareh "didn't talk to anybody" before he "made the decision" to discharge Lance.
Dr. Kareh did not recommend the placement of a shunt because the increase in Lance's intracranial pressure was not "sustained." He explained that "[s]ustained increased intracranial pressure means that the pressure inside the head will be kept above the normal level for a considerable amount of time, 30 minutes, 15 minutes. ... And the higher the pressure, the less time that the brain will allow." And "[t]otal obstructive hydrocephalus is not compatible with life." In other words, a patient with "sustained" pressure would die within minutes.
Dr. Kareh noted that Lance "didn't have the signs of normal pressure hydrocephalus." He also agreed that a patient with compensated obstructive hydrocephalus can lose his ability to compensate. Kareh admitted that when he arrived at the hospital to examine Lance, he did not look at the medical notes regarding Lance's history and was unaware that this was the fourth event that Lance had experienced in less than six months. Kareh agreed that Lance's symptoms, i.e., slurred speech, confusion, being off-balance, tremors in his hand and leg, and headaches, all of which resolved over several hours or by the following day, were consistent with obstructive hydrocephalus and increased pressure. And Kareh further agreed that "[a]s long as there is increased intracranial pressure, ... a shunt is the solution." Dr. Warren Neely, Kareh's own expert, also testified that the applicable standard of care and the treatment for obstructive hydrocephalus is "either a shunt or a third ventriculostomy."
Dr. Gill, a board certified neurologist and expert in the diagnosis of hydrocephalus, also testified that the applicable standard of care for the treatment of obstructive hydrocephalus is either the placement of a shunt or a third ventriculostomy. It was "always clear" to him that Lance was suffering from obstructive hydrocephalus, and his opinion never changed. Gill was glad to have a neurosurgeon involved because the only issue left was "what to do about it." He opined, based on his experience, that it is not abnormal for a patient with obstructive hydrocephalus to have intermittent or transient periods of elevated intracranial pressure. One moment the patient may have elevated pressure and the next moment it may alleviate itself. During episodes of increased pressure, the patient can feel off-balance and confused, and have headaches and slurred speech. And the real concern is that a moment may come in which that pressure does not alleviate itself. Gill explained that because obstructive hydrocephalus can lead to an increase in cranial pressure that can cause severe brain damage or death within fifteen minutes, the applicable standard of care is to compensate for the obstruction by either installing a shunt or performing a third ventriculostomy. He noted that he had written in his February 4, 2010 consultation report regarding Lance that he had spoken with Dr. Kareh about a possible shunt placement to occur the very next morning.
Dr. Gill further explained that because intracranial pressure fluctuates, whether a patient exhibits elevated pressure on any given day depends on his particular status at that time. He agreed that "you can't rely upon the absence of pressure on an intracranial pressure monitoring test," such as that performed by Dr. Kareh, to determine the course of treatment. And Gill noted that he was "okay" with Lance's discharge because it was "okay with the neurosurgeon," Kareh, who, as the neurosurgeon, had the responsibility to make the decision.
Although Dr. Gill did note that on February 5, 2010, Lance seemed to be "feeling better" and his "headaches were improving," Dr. Parrish, as discussed above, explained in detail the intermittent nature of Lance's condition. And, as the panel notes, Gill "agreed that intracranial pressure fluctuates and that increased pressure could be intermittent." Notably, Gill further testified that he could not recall having ever been involved in the care or treatment of any patient with acute or obstructive hydrocephalus who was not treated with a shunt or a third ventriculostomy, or who was treated effectively without a shunt or third ventriculostomy.
Dr. Evans, a neurologist expert originally retained by Dr. Gill, agreed that "every physician" who treated Lance in the emergency room "agreed with the diagnosis that he had obstructive hydrocephalus." He testified that Lance had aqueductal stenosis, which is a particular type of obstructive hydrocephalus, and he agreed that the symptoms can be transient, a diagnosis could be made with an MRI, and an intracranial pressure monitoring test, such as that performed by Dr. Kareh, was not required. Evans agreed that there are two major alternatives for treating aqueductal stenosis: shunt surgery and third ventriculostomy. And he agreed that for most patients, unless they have a "specific physical impairment like age or a heart condition," "surgical intervention is going to be the appropriate thing to do." Evans noted that shunt surgery, although not without risks, is successful in over eighty percent of cases, and post-operative mortality is "close to zero." And, from his review of the medical records, it was apparent that Gill had not simply agreed to discharge Lance without a shunt or third ventriculostomy. Rather, Gill had, as is customary, simply deferred to the decision of the neurosurgeon, Kareh.
The second major erroneous conclusion of the panel is that "even if Dr. Kareh's actions did fall below the standard of care, Windrum failed to establish that Dr. Kareh's actions proximately caused Lance's death." However, Windrum presented ample evidence that Kareh's negligence did proximately cause Lance's death.
Dr. Parrish opined that Dr. Kareh's breach of the standard of care, i.e., his failure to "put a shunt in when he saw [Lance] in the hospital," caused Lance to "die[ ] of obstructive hydrocephalus." And, as discussed above, he provided a detailed explanation of the facts supporting his opinion. Parrish characterized Lance's condition as that of him having a "ticking time bomb" inside of his head. Once Lance's "aqueduct obstructed," there was "pressure in the ventricles," which "put pressure on the red nuclei and the periaqueductal region right around where all that important stuff is. And those fibers made him stop breathing and his heart stop beating. ... All those vital structures stopped." Parrish further explained that, based on his review, there were no other causes that provide a reasonable explanation for Lance's death.
The panel argues that Dr. Parrish's testimony constitutes "no evidence" of causation, in part, because he had "agreed that there was no ‘microscopic evidence’ of increased cranial pressure at the time of Lance's autopsy." However, the record reveals that he so agreed based only "on what [he] could find and see on the autopsy information that was provided to [him] by [Windrum] at the time of [his] deposition." In fact, Parrish explained that based on his subsequent review of the affidavit of Windrum's forensic pathologist and neuropathologist expert, Dr. Ljubisa Dragovic, the microscopic slides from the autopsy reveal a hemorrhage in the aqueduct that "absolutely slam dunk confirm [ed]" that "there was pressure on the top of the brain stem that caused Lance ... to die." He noted that the slides show a "deformation of the top of the brain stem, which confirms [his] belief" that Lance "died from compression axial loading on the top of the brain stem." And Parrish explained that compression axial loading on the top of the brain stem constitutes evidence of increased cranial pressure.
Further, Dr. Dragovic, from his review of Lance's history, the clinical imaging, and the materials from the Harris County Medical Examiner's Office, opined, based on a reasonable degree of medical probability, that Lance "died as a result of complications of obstructive hydrocephalus." He explained that the "critical finding" in the autopsy report was of "impaired flow of cerebral spinal fluid through the aqueduct." Dragovic noted that the "aqueduct was abnormal and was described as being ... pinpoint to not identifiable." And Lance's enlarged ventricles "reflect[ed] sudden increase of [intracranial] pressure as a result of increased blockage." Based on his review of the microscopic slides, Dragovic had "[n]o doubt whatsoever" that Lance died from an "acute complete obstruction of the aqueduct." He saw nothing in Lance's records that was inconsistent, and he explained in detail how he excluded a heart condition or event as the cause of Lance's death.
The panel also argues that Dr. Parrish's testimony constitutes "no evidence" of causation because he had "agreed with defense counsel that the April MRI revealed that Lance's symptoms were progressing and that Lance could have survived ‘if he'd had a shunt done the day before he died,’ indicating that any failure by Dr. Kareh to place a shunt when he saw Lance in February 2010 was not an immediate cause of death." (Emphasis added.) And it holds, "as a matter of law, Dr. Kareh's decision not to recommend placement of a shunt on February 4, 2010, was too remote from Lance's death on May 2, 2010, to constitute a proximate cause of Lance's death."
"Proximate cause does not necessarily mean the last cause, or the act immediately preceding an injury." Rodriguez v. Moerbe , 963 S.W.2d 808, 819 (Tex. App.–San Antonio 1998, pet. denied). Proximate cause requires proof of (1) foreseeability and (2) cause-in-fact. Morrell v. Finke , 184 S.W.3d 257, 271 (Tex. App.—Fort Worth 2005, pet. denied). "[T]he ultimate standard of proof on cause-in-fact is whether by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about an injury, without which the harm would not have occurred." Park Place Hosp. v. Estate of Milo , 909 S.W.2d 508, 511 (Tex. 1995) (emphasis added). And "[m]ore than one act may be the proximate cause of the same injury." Lee Lewis Constr., Inc. v. Harrison , 70 S.W.3d 778, 784 (Tex. 2001) ; see, e.g ., Harvey v. Stanley , 803 S.W.2d 721, 725–26 (Tex. App.–Fort Worth 1990, writ denied) (holding first doctor liable for failure to diagnose heart condition where patient died during subsequent stress test conducted under supervision of second doctor).
Dr. Kareh testified that he was the only neurosurgeon involved in Lance's case and the only doctor in charge of making a decision as to whether Lance needed a shunt. The evidence that Lance's symptoms continued and his clinical condition worsened after Kareh discharged him without a shunt supports Dr. Parrish's testimony that Lance's obstructive hydrocephalus was progressive, he was losing his ability to compensate, death from an obstructed aqueduct was foreseeable, and Kareh's decision to discharge him without a shunt constituted a substantial factor in bringing about his death. And there is no evidence in the record of any new or independent cause occurring between Lance's discharge from the hospital and his death.
Moreover, the rule is "well settled that the question of proximate causation is one of fact peculiarly within the province of the jury, and the jury finding on it will be set aside only in the most exceptional cases." Enloe v. Barfield , 422 S.W.2d 905, 908 (Tex. 1967) : Tex. Dep't of Transp. v. Olson , 980 S.W.2d 890, 893 (Tex. App.–Fort Worth 1998, no pet.). The panel does not identify any such exceptional circumstance presented in this case. Conclusion
In sum, Windrum presented ample evidence of the standard of care, breach, and proximate causation to support the jury's liability finding against Dr. Kareh. Dr. Parrish's testimony is not speculative or conclusory because he did not "simply state a conclusion without any explanation" or ask jurors to simply "take [his] word for it." See Arkoma Basin Explor. Co., Inc. , 249 S.W.3d at 390. Rather, his testimony is grounded in the facts recorded in Lance's medical records and lab results. And Parrish specifically provided the underlying factual bases for his opinions. See Pollock , 284 S.W.3d at 818 (expert's opinion conclusory "if no basis for the opinion is offered, or the basis offered provides no support " for opinion) (emphasis added)). Further, he explained how and why the negligence caused the injury. See Jelinek , 328 S.W.3d at 536. "In a battle of competing experts," as here, it is the "sole obligation of the jury to determine the credibility of the witnesses and to weigh their testimony." Morrell , 184 S.W.3d at 282 : see also City of Keller , 168 S.W.3d at 819. It is particularly within the province of the jury to "weigh opinion evidence and the judgment of experts." Morrell , 184 S.W.3d at 282. And it is the jury who "decides which expert witness to credit." Id ."Reviewing courts cannot impose their own opinions to the contrary." City of Keller , 168 S.W.3d at 819.
The panel, in overturning the jury's verdict and the trial court's judgment, weighs evidence, credits certain evidence that the jury was free to disregard, and disregards substantial evidence that supports the jury's findings. In doing so, the panel misapplies Texas's well-settled legal-sufficiency standard and principles and substitutes its opinion for that of the jury on credibility issues. Accordingly, the panel's errors should be corrected by this Court or by our high court. See TEX. R. APP. P. 41.2(c) ("[E]xtraordinary circumstances require en banc consideration."): TEX. GOV'T CODE ANN. § 22.001(a)(6) (Vernon 2004) ("The supreme court has appellate jurisdiction [when] ... an error of law has been committed by the court of appeals, and that error is of such importance to the jurisprudence of the state that ... it requires correction ....").