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Kareh v. Windrum

Court of Appeals of Texas, First District

March 16, 2017

VICTOR KAREH, M.D., Appellant

         On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2012-07156

          Panel consists of Justices Keyes, Bland, and Massengale.


          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."[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 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. 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."[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 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 ...

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