Victor Kareh M.D. v. Tracy Windrum, Individually, as Representative of the Estate of Lancer Windrum, and on Behalf of Her Minor Children, B. W., J. W. and H. W. ( 2016 )

Opinion issued April 19, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00179-CV
———————————
VICTOR KAREH, M.D., Appellant
V.
TRACY WINDRUM, INDIVIDUALLY, AS REPRESENTATIVE OF THE
ESTATE OF LANCER WINDRUM, AND ON BEHALF OF HER MINOR
CHILDREN, B.W., J.W., AND H.W., Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2012-07156
OPINION
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.
2
Background
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
3
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.”1
Lance then consulted Dr. Harpaul Gill, a neurologist at NCMC.2 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
1
“Transependymal flow” is the flow of cerebrospinal fluid outside of the
ventricular system.
2
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.
4
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.3
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.
3
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.
5
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
6
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
7
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
8
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
9
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.”4 When asked how Lance died, Dr. Parrish
testified,
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
4
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.”
10
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
11
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
12
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
13
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
14
“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.”5
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.”6 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
5
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.
6
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.
15
headache had improved and he was feeling better. Dr. Gill agreed that intracranial
pressure fluctuates and that increased pressure could be intermittent.
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
16
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.7 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
7
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.
17
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:
[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
18
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
19
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 hydrocephalus due 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
20
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
21
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
22
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
23
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.
24
1998, amended 2015).8 “‘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.”).
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
8
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.
25
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 (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
26
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
27
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
28
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
29
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. Parrish did not provide any support for his opinion that the standard of
care required the immediate placement of a shunt “every time” when a patient
presents with a few “classic symptoms” of increased intracranial pressure and
exhibits enlarged ventricles and a narrowed aqueduct in an MRI scan beyond his
own testimony. He did not provide any support for his opinion that the standard of
care in this case required immediate placement of a shunt on February 4, 2010, as
opposed to following a more conservative course of treatment that tracked the
progression of the frequency and severity of the neurological symptoms Lance had
displayed.
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
30
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 even when monitoring of intracranial pressure
reveals no sustained increase in pressure and when 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 to establish that the standard of care always requires placement
of a shunt under the circumstances presented to Dr. Kareh on February 4, 2010.
31
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.
Moreover, 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, — S.W.3d —, No. 05-12-01394-CV, 2015 WL 3485422, at
*7 (Tex. App.—Dallas May 28, 2015, pet. filed) (“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
32
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. Windrum presented no evidence to refute this testimony, aside from Dr.
Parrish’s unsupported opinions that shunt placement is required “every time” a
patient presents with some of the “classic symptoms” of increased intracranial
pressure and an MRI scan reveals enlarged ventricles. See Mendez, 204 S.W.3d at
804 (stating that, in conducting no-evidence review involving expert testimony,
33
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 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 and
unsupported 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).
34
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
35
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
36
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.
We sustain Dr. Kareh’s first and second issues.9
9
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.
37
Conclusion
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.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
38