An appeals court ruled correctly when it reversed a nearly $2 million judgment against a Cypress neurosurgeon, the Texas Medical Association is telling the Texas Supreme Court in a friend-of-the-court brief.
Tracy Windrum sued Cypress neurosurgeon Victor Kareh, MD, after her husband, Lancer Windrum, died in May 2010 of complications of hydrocephalus from aqueductal stenosis, a block in the aqueduct of his brain through which cerebrospinal fluid flowed, according to court documents.
Another neurosurgeon who testified as a standard-of-care expert for Ms. Windrum said he believed Dr. Kareh had misdiagnosed Mr. Windrum in February 2010 with a non-emergency condition called normal pressure hydrocephalus, according to court documents. Ms. Windrum claimed in court papers that her husband’s fatal spike in intracranial pressure would not have happened if Dr. Kareh had installed a shunt or performed a ventriculostomy.
A Harris County jury found Dr. Kareh was negligent. After applying statutory caps and settlement credits, the court awarded Ms. Windrum and her children $1.875 million. But an appeals court found in favor of Dr. Kareh and reversed the judgment.
The appeals court decided that Ms. Windrum’s expert witness “presented no evidence concerning the standard of care and Dr. Kareh’s breach of the standard of care,” according to court documents, so his testimony was “conclusory and, therefore, legally and factually insufficient to support the jury’s verdict.”
It also found that Dr. Kareh’s decision not to recommend placement of a shunt in February 2010 was “too remote from Lance’s death on May 2, 2010, to be proximate cause of Lance’s death.”
TMA’s brief in the Supreme Court case explains that “an expert in a medical malpractice suit must do more than simply state the standard of care and assert that it was not met. He or she must provide ‘specific information about what the defendant should have done differently,’” or else the expert’s opinion is conclusory.
While the standard-of-care expert’s credentials as a neurosurgeon are unquestioned, TMA wrote, his testimony was based entirely on what he “believed he might have done in hindsight rather than what a reasonably prudent physician under like circumstances would have done.” He did not “substantiate his opinion by relating his own clinical experience to this case or his observational experience over 30-plus years as a surgeon,” or cite literature such as practice guidelines, TMA said.
Ms. Windrum argues in court documents that the appeals court’s decision would mean “malpractice liability for negligent failure to properly diagnose and treat a medical condition may be effectively abolished in Texas.”
TMA noted that after Dr. Kareh saw Mr. Windrum on Feb. 4, 2010, and for a follow-up almost three weeks later, he did not see him again. Dr. Kareh “was not informed of any further episodes or symptoms experienced by Mr. Windrum and he was not provided any follow-up documentation or Mr. Windrum’s April MRI,” TMA noted.
“The Court of Appeals concluded that Mr. Windrum’s passing in May 2010 was not the natural and foreseeable result of Dr. Kareh’s decision to not operate a few months earlier,” TMA said in its brief. “The Court of Appeals, reviewing the record as a whole, made a permissible determination that foreseeability was lacking as a matter of law.”
The high court heard oral arguments in the case Oct. 10.