The Supreme Court of Texas (“Texas Supreme Court”) held in its opinion filed on January 25, 2019 that the plaintiff’s medical expert’s opinion offered during a Texas medical malpractice jury trial was not “conclusory” and therefore upheld the jury’s verdict in favor of the plaintiff.
The Texas Supreme Court stated that conclusory testimony cannot support a judgment in a Texas medical malpractice case. A conclusory statement asserts a conclusion with no basis or explanation: “[a]n expert’s testimony is conclusory if the witness simply states a conclusion without an explanation or factual substantiation.” Bare or baseless opinions cannot support a judgment, even if there was no objection over their admission into evidence. Mere evidence of the injury coupled with an expert’s opinion that the injury might have occurred from the doctor’s negligence has no tendency to show that the doctor’s negligence caused the injury. And the mere ipse dixit of the expert—that is, asking the jury to take the expert’s word for it—will not suffice. When the evidence presented to the jury is conclusory, it is considered no evidence.
The Texas Supreme Court stated: “an expert’s statement or opinion is conclusory when: (1) he asks the jury to take his word that his opinion is correct but offers no basis for his opinion or the bases offered do not actually support the opinion; or (2) he offers only his word that the bases offered to support his opinion actually exist or support his opinion.” The Texas Supreme Court stated that experience alone may provide a sufficient basis for an expert opinion, but experience may not be sufficient in every case. Further, medical literature is not necessary to support an expert’s opinion, although it tends to strengthen the bases for the opinion and therefore is preferred.
In the case it was deciding, the Texas Supreme Court stated: “Dr. Parrish [plaintiff’s expert] testified that in developing his opinion he reviewed: (1) Lance’s [the decedent’s] medical records, including his autopsy; (2) chapters in textbooks; (3) a “number of literature searches,” some of which were conducted by other physicians involved in this case; and (4) the deposition testimony of other doctors involved in this case … Dr. Parrish ultimately concluded that the “MRI plus classic symptoms” exhibited by Lance “equals a shunt.” Therefore, in Dr. Parrish’s expert opinion, Dr. Kareh [the medical malpractice defendant] breached the standard of care when he failed to insert a shunt. He based this conclusion on his own experience treating patients with hydrocephalus and intracranial pressure, the experience of other doctors in the field, Lance’s own medical records and test results, Lance’s autopsy report, and the testimony of Dr. Dragovic, the forensic pathologist. Dr. Parrish explained how and why all of these bases led him to conclude that Lance required a shunt. However, Dr. Parrish cited medical literature in support of only some of his opinions. He failed to cite any literature in support of his ultimate conclusion that the standard of care for Lance’s condition required insertion of a shunt. However, in addition to providing his resume and describing his experience, Dr. Parrish provided enough reasons for his opinion. While Dr. Parrish undoubtedly could have provided more solid support for his conclusion, he provided a basis for his opinion which was more than mere ipse dixit … Thus, Dr. Parrish’s testimony was based on actual data, including the autopsy report, Lance’s brain scans, the reports of other doctors who treated Lance, and on his own experience with those symptoms; and the jury could reasonably rely on the conclusions and decide which experts to give greater weight.”
Source Windrum v. Kareh, No. 17-0328.
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