HOUSTON – The 1st District Court of Appeals has rejected a trial court's medical malpractice ruling and tossed out a $1,875,887.62 award.

On March 16, the court overturned a medical malpractice ruling on behalf of Tracy Windrum, individually, as representative of the estate of Lancer Windrum, her husband, against Dr. Victor Kareh.

The case stems from a series of medical incidents in which Lancer Windrum experienced slurred speech, became confused and disoriented, and had tremors in his left hand and leg. A CT scan report noted that the ventricles in Lancer Windrum’s brain had become dilated in a way that indicated hydrocephalus. He was then referred to the plaintiff, a neurosurgeon, to treat him for cerebral swelling.

Kareh installed a ventricular drain in Lance Windrum's brain to help relieve the pressure and monitored him over the course of a 24-hour period, but chose not to install a shunt. During the monitoring period, Lancer Windrum’s intracranial pressure spiked on several occasions to a higher level than what is considered by physicians to be normal.

However, Lancer Windrum’s intracranial pressure quickly returned to a normal level on each occasion, and he did not demonstrate any evidence of sustained increased intracranial pressure. Roughly, three months later Lancer Windrum died of his symptoms in May 2010.

In response Tracy Windrum brought a wrongful death suit against Kareh alleging that the applicable standard of care when Lancer Windrum was seen by Kareh required him to install a shunt, or a permanent drain, in his brain to prevent a fatal build-up of cerebrospinal fluid and intracranial pressure. She retained an expert witness who testified that Kareh ignored her husband's symptoms that indicated his medical issues were getting worse not better and a jury found him to be guilty of negligence.

In response, Kareh filed an appeal.

The appeals court ruled that three key issues are necessary to determine negligence in this case. First, that Kareh had a duty to place a shunt in Lancer Windrum’s brain, second that Kareh’s failure to place the shunt at that time fell below the standard of care of a reasonably prudent neurosurgeon, and third that if not for Kareh’s failure to use the shunt at that time, Lancer Windrum would not have died.

In addition in its writing, the court stated that opinion testimony that is conclusory or speculative is not relevant evidence, as cited in Coastal Transp. Co., and that it is incumbent on an expert to connect the data relied on and his or her opinion and to show how that it is able to support the opinion reached, as cited in Whirlpool Corp. v. Camacho.

The court declared that Tracy Windrum failed to provide the necessary preponderance evidence the elements of medical negligence required to hold Kareh liable. The court went on to say that it concluded that, even if Kareh’s actions did fall below the standard of care, Tracy Windrum failed to demonstrate that his actions caused Lancer Windrum's death.

In its final ruling the appeals court overturned the initial trial court decision and the $1,875,887.62 award granted to Tracy Windrum, although two justices did dissent from the final ruling.

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Court of Appeals for the 1st District of Texas
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