In rare support of a medical malpractice plaintiff’s jury verdict, the Texas Supreme Court on Friday concluded that the First Court of Appeals erred when it tossed a $4.2 million award by a Houston jury for the negligent death of a 46-year-old father of three.
In an 8-0 decision, the court ruled that a plaintiff’s expert had properly supported his determination that a medical decision to delay a routine neurosurgical procedure had resulted in the death of Lancer Windrum from obstructive hydrocephalus, a form of pressure on his brain.
In February 2010, Windrum was rushed to North Cypress Medical Center after suffering disorientation and confusion while with his children at a local Buc-ee’s. After a CAT scan and an MRI, emergency room doctors had referred him to a neurologist, Dr. Harpaul Gill.
Windrum complained to Gill that he had previously suffered three similar episodes, but that they had resolved themselves quickly. Dr. Gill discovered that ventricles in Windrum’s brain had dilated – likely caused by a childhood bout with encephalitis – allowing build-ups of cerebrospinal fluid pressure that, in turn, caused the hydrocephalic episodes. Gill recommended the installation of a shunt, and referred Windrum to a neurosurgeon, Dr. Victor Kareh, who it was presumed would conduct the surgery the following day.
The surgery never happened. Instead, Dr. Kareh began monitoring Windrum’s cranial pressure and concluded that the shunt was unnecessary, even after Windrum suffered another seizure a few days later. Although the doctors continued to monitor Windrum’s brain pressure, Windrum died in his sleep three months later. An autopsy concluded that his death was the result of the obstructive hydrocephalus that had already been diagnosed.
The Houston-based firm Hicks Thomas, representing Windrum’s wife, filed a negligence suit against the two doctors. A Harris County jury in 2013 awarded a total of $4.2 million to the family, splitting liability between the two doctors – Gill at 20 percent, Kareh at 80 percent. The jury award was reduced by the trial judge to $1.87 million.
Since the implementation of statutory caps on non-economic damages, medical malpractice verdicts of more than $1 million have fared poorly in Texas, both in trial courts and on appeal. Despite the significant jury award, the Windrum case appeared to be headed for trouble at the appellate level.
Dr. Kareh appealed to the Houston-based First Court of Appeals, arguing that the plaintiff’s expert, neurosurgeon Dr. Robert Parrish, had failed to provide evidence to support his conclusion that the Kareh had acted negligently by failing to install the shunt. He also argued that Windrum’s death, coming three months after his hospitalization, was too far removed for the deferred surgery to have been its proximate cause. The Court of Appeals agreed on both points and reversed the trial court’s judgment.
But in last week’s opinion, the Texas Supreme Court rejected the lower court’s reasoning on all counts, not only for failing to acknowledge evidence presented at trial, but for failing to discuss their specific reasons for doing so.
In his 34-page opinion, Green wrote that the plaintiff’s expert had not only reviewed all the medical records and testimony of the doctors involved, but had provided ample evidence from his own experience to support his opinion.
“Dr. Parrish did not simply state the standard of care and that it was not met,” Green concluded, “He provided specific reasons why he concluded that [Windrum] suffered from increased intracranial pressure and hydrocephalus, how he likely developed his condition, that his condition was progressing, and Dr. Parrish explained that a neurosurgeon was necessary and what the neurosurgeon should have done to prolong [Windrum]’s life.”
The case was remanded to the court of appeals for reconsideration.
The Hicks Thomas firm represented the Windrums through the appellate process with a team that included Stephen Barrick, Wade Whilden and Stephen Loftin. At oral arguments before the Supreme Court, the Windham case was presented by Warren Harris of Bracewell’s Houston office.
Kareh was represented at oral arguments by Sean Higgins of Lewis Brisbois in Houston.