Appellate courts often arrive at conflicting conclusions about the sufficiency of expert testimony to identify a standard of care and its breach in a medical malpractice lawsuit. The recent case of Windrum v. Kareh in Texas illustrates the danger of taking the evaluation of expert testimony away from juries, which have primary responsibility for deciding whether expert evidence establishes a physician’s breach of a standard of care.
Facts of the Case
Lance Windrum was in a parking lot when he suddenly became disoriented and confused. His speech was slurred and he was having problems with his balance. An ambulance took him to a medical center, where he had a CAT scan and an MRI. Windrum reported that he had suffered from two similar but milder episodes in recent weeks. He also reported that he suffered from encephalitis when he was six years old.
The MRI suggested that Windrum had aqueductal stenosis, a narrowing of the aqueduct that carries cerebrospinal fluid through the brain. Aqueductal stenosis can cause hydrocephalus, a condition in which excess cerebrospinal fluid builds up within cavities inside the brain, potentially increasing pressure within the skull.
There are various kinds of hydrocephalus. A neurologist, Dr. Harpaul Gill, diagnosed Windrum’s condition as compensated obstructive hydrocephalus. That condition is characterized by partial or full blockage of the aqueduct, causing the brain to compensate for the increased pressure. The condition is usually treated by inserting a shunt to relieve the pressure.
Dr. Gill recommended surgery to insert a shunt. He referred Windrum to Dr. Victor Kareh, a neurosurgeon. The next day, Dr. Kareh met with Windrum, who was no longer experiencing any symptoms. Dr. Kareh did not review Windrum’s medical history, but decided to insert a ventricular drain rather than a shunt and to monitor Windrum’s intracranial pressure for the next 24 hours.
Windrum was released from the hospital after 24 hours of monitoring because the pressure did not redevelop during that time. About two months later, he had additional symptoms. A new MRI revealed that his aqueductal stenosis had worsened. Dr. Gill did not inform Dr. Kareh of that result.
About a week after the MRI, Windrum died in his sleep. An autopsy attributed his death to complications of hydrocephalus due to acqueductal stenosis.
Lawsuit and Appeal
Windrum’s wife, on her own behalf and on behalf of her children, sued Dr. Gill and Dr. Kareh for Windrum’s wrongful death. A jury found that both doctors were negligent. The jury assigned 20% of the fault to Dr. Gill and 80% to Dr. Kareh. The jury awarded Windrum’s wife and children more than one million dollars in damages.
Dr. Kareh appealed, arguing that the expert evidence was insufficient to establish that he breached the applicable standard of care by failing to install a shunt in Windrum’s brain. The Texas Court of Appeals agreed, reversing the judgment against Dr. Kareh. Over four dissenting votes, the court refused to grant en banc review of its decision. The Texas Supreme Court granted review of the lower court’s decision to determine whether the experts’ opinions regarding breach of the standard of care were, as the court of appeals concluded, “conclusory.”
Challenge to Expert Testimony
As is true in other states, a medical malpractice plaintiff in Texas must prove that a negligent medical professional caused harm by breaching the standard of care that the professional should have followed while treating the plaintiff. The standard of care is what an ordinarily prudent doctor would have done under the same circumstances.
Expert testimony is nearly always required to prove the standard of care. Texas court decisions require specific expert evidence of what the defendant should have done differently. Conclusory opinions that the defendant did something wrong do not establish a breach of the standard of care.
An expert’s opinion is conclusory if it has no basis or explanation. The medical expert’s role is to justify an opinion that the standard of care was breached by reference to specific facts accompanied by an explanation of why the defendant’s breach caused the patient’s injury. There must also be evidence of the specific facts upon which the expert relies.
Dr. Robert Parrish, a neurosurgeon, testified as an expert on behalf of Windrum’s family. Dr. Parrish reviewed Windrum’s medical records, the autopsy report, and the deposition testimony of Windrum’s treating physicians. Dr. Parrish also reviewed information in medical textbooks and literature. He testified that he based his conclusions on that information as well as on his experience treating patients with hydrocephalus and other conditions causing pressure inside the skull.
Dr. Parrish concluded that Windrum’s MRI revealed “classic symptoms” that called for the insertion of a shunt. He therefore opined that inserting a shunt was the appropriate standard of care and that Dr. Kareh’s failure to do so was a breach of that standard.
The court of appeals faulted Dr. Parrish because he cited no specific medical literature stating that inserting a shunt is the appropriate standard of care for treating the specific symptoms that Windrum exhibited. The court decided that Dr. Parrish’s opinion was conclusory because it was merely his opinion rather than an opinion that could be found in medical literature
The Expert’s Role in Explaining a Standard of Care
The Texas Supreme Court rejected the court of appeals’ narrow view of the facts upon which a medical expert must rely in defining a standard of care. Medical experts are entitled to rely on their training and experience when they form an opinion. Dr. Parrish testified that he instructs medical students in neurosurgery and that the recognition and treatment of hydrocephalus, including the use of a shunt, is part of his hospital’s teaching program.
Dr. Parrish explained the structure of the brain, the way in which aqueductal stenosis causes obstructive hydrocephalus, and the potential consequences of not treating the condition with a shunt. Dr. Parrish explained why he disagreed with defense expert opinions that there was no evidence of pressure on Windrum’s brain, including testimony that there was no evidence of pressure on Windrum’s optic nerve.
While Dr. Parrish could point to no medical literature supporting his view that the absence of pressure on the optic nerve could easily be explained by scar tissue preventing the pressure from reaching the back of the eye, he testified that it is widely known in the medical field that the absence of evidence of pressure on the optic nerve cannot be taken as proof that no intracranial pressure exists. Dr. Parrish’s experience qualified him to opine about facts that are widely known in the profession, even if those facts do not appear in textbooks.
Substantial portions of Dr. Parrish’s opinions, if not his ultimate conclusion as to the standard of care, were expressly supported by medical literature. He also explained why alternative causes of death (including a “brain-eating virus”) suggested by defense experts were unlikely. His explanation referred to specific symptoms that would accompany those conditions that Windrum did not have.
Dr. Parrish ultimately relied on evidence that Windrum had slurred speech, was staggering, and had MRI results that revealed aqueductal stenosis. The totality of the symptoms and test results, in Dr. Parrish’s view, would have convinced a prudent neurosurgeon that Windrum was suffering from obstructive hydrocephalus that needed to be relieved with a shunt.
Supreme Court Reinstates Verdict
The court of appeals made the mistake of concluding that an opinion as to a standard of care is only valid if the standard has been described by researchers or medical textbook authors. The reality is that the various combinations of symptoms that doctors treat are so vast that each potential standard of care will not always be discussed in medical literature.
Dr. Parrish articulated his reasoning and the facts upon which he based his opinion. He did not make the unsupported statement that “I know what the standard of care is and Dr. Kareh breached it.” Nor did he testify that “this injury would not have happened if Dr. Kareh had not been negligent” with nothing more.
Since Dr. Parrish’s opinion was not conclusory, it was up to the jury to evaluate it. When medical experts disagree about a standard of care, it is the function of the jury, not the judge, to resolve that disagreement. Since the jury was entitled to believe Dr. Parrish and to reject the opinions of the defense experts, the court of appeals erred in reversing the judgment. The Supreme Court accordingly reinstated the jury’s award of damages.