Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
JASON R. PHILLIPS, M.D., Appellant,
MARIA MONTEMAYOR, INDIVIDUALLY, A/N/F OF A.J.M., A MINOR CHILD, AND ALFREDO MONTEMAYOR, SPOUSE, Appellees. APC HOME HEALTH SERVICE, INC., Appellant,
MARIA MONTEMAYOR, INDIVIDUALLY, A/N/F OF A.J.M., A MINOR CHILD, AND ALFREDO MONTEMAYOR, SPOUSE, Appellees.
appeal from the 445th District Court of Cameron County,
Justices Benavides, Hinojosa, and Perkes
GREGORY T. PERKES JUSTICE.
dispute concerns a healthcare liability suit brought by
appellees, Maria Montemayor individually, a/n/f of A.J.M. a
minor child, and Alfredo Montemayor her spouse, against
appellants, Dr. Jason R. Phillips and APC Home Health
Service, Inc. (APC), following Montemayor's diagnosis of
Wernicke's Encephalopathy (WE), a thiamine deficiency. By
what we construe as one issue, appellants argue that the
trial court abused its discretion in denying their respective
motions to dismiss under the Texas Medical Liability Act (the
Act). See Tex. Civ. Prac. & Rem.
Code § 74.351(b). We affirm.
Montemayor's Medical History
to the record, Montemayor underwent a laparoscopic sleeve
gastrectomy on July 29, 2015; at the time of surgery, she
weighed 228 lbs. The surgery was performed by Dr. Ashraf
Hilmy at Valley Baptist Medical Center in Harlingen, Texas.
Montemayor developed an intra-abdominal abscess, and she was
hospitalized postoperatively. During her hospitalization,
Montemayor's husband reported cognitive changes.
Montemayor was discharged on August 18 and placed on a clear
liquid diet with a protein supplement. On August 25, at a
follow-up visitation with Dr. Hilmy, Montemayor reported
struggling with nausea and having difficulty swallowing.
Montemayor was instructed to drink protein shakes and
referred for a "swallow study," which found a leak
near her stomach. On August 27, Dr. Hilmy referred Montemayor
to Dr. Phillips, a gastroenterologist, to control the gastric
September 17, Montemayor was examined by her primary care
physician, Dr. Diana Lozano. Dr. Lozano documented nausea in
Montemayor's patient file, although her notes also
indicated Montemayor was able to eat and drink. Less than a
week later, however, Dr. Lozano treated Montemayor for sore
throat, fever, nausea, vomiting, and weakness. Dr. Lozano
documented that Montemayor was suffering from dehydration,
failure to thrive, and gastroparesis. Montemayor was treated
with intravenous fluids (IV fluids) to address her
dehydration. Montemayor met with Dr. Hilmy on September 29,
and she complained of continued nausea and vomiting again to
October 2, Montemayor was prescribed anti-nausea medication
by Dr. Lozano. Three days later at a follow-up appointment,
Montemayor was still reporting vomiting despite medication;
she weighed 182 lbs-almost 50 lbs less than the month prior.
In response to Montemayor's persistent nausea, Dr. Lozano
recommended Montemayor supplement her diet with protein
shakes and take her anti-nausea medication as needed.
Montemayor saw Dr. Hilmy on October 6 and 8, and a CT-scan
was performed to evaluate the extent of her gastric leak. Dr.
Hilmy referred Montemayor back to Dr. Phillips on October 13,
and on October 20, Dr. Phillips performed surgery to fix the
leak. At a follow-up with Dr. Phillips on October 26, he
documented that Montemayor "continues to vomit
everything-small liquid meals, regular meals. Failed oral
[medications]." Dr. Phillips also indicated in his notes
[S]poke with Dr. Hilmy and Lozano. [ . . . ] Send to Dr.
Lozano for fluids, to Dr. Hilmy for drain removal [ . . . ]
hopefully with regular oral intake her [nausea and vomiting]
will resolve. [ . . . ] We also discussed a possible J tube
as an option fir [sic] nutrition to rest her upper GI tract
and break the recurrent [nausea and vomiting].
same day Montemayor saw Dr. Phillips, Dr. Lozano also treated
Montemayor for dehydration with IV fluids. Patient notes
indicate Montemayor reported being unable to keep food down
for weeks, and she had dropped down to 168 lbs. Montemayor
was diagnosed with "failure to thrive, cachexia,
severe protein calorie malnutrition, nausea, and
vomiting." Dr. Lozano states in her notes that Dr.
Phillips recommended a feeding device (J-tube) but Dr. Hilmy
was opposed. Montemayor was instead, once more, encouraged by
Dr. Lozano to take her anti-nausea medication as needed and
"protein shakes as tolerated." Montemayor saw Dr.
Hilmy on October 27 per Dr. Phillips's return referral,
and she informed him of her continued nausea and vomiting.
Dr. Hilmy advised Montemayor to "try some savory food
rather than liquids such as Gatorade" to stimulate her
appetite. Montemayor then saw Dr. Lozano again for IV fluids.
On October 29, Montemayor was seen by Dr. Lozano for the
fifth time in October, complaining of vomiting. Dr. Lozano
noted Montemayor was suffering from "severe caloric
protein malnutrition, failure to thrive, chachexia," and
this time, Dr. Lozano prescribed IV fluids to be administered
by APC every other day. On October 31, Montemayor was
admitted into APC's care. During admission, APC staff
documented that Montemayor was weak, had fallen, and was
unable to eat or drink due to her nausea; the nurse observed
a reported "increase in blurred vision."
November 2, APC communicated Montemayor's condition to
Dr. Lozano's office. Throughout the week, Montemayor
continued to complain of blurred vision until November 6,
when it was noted that her sight had cleared up considerably
and she had begun "tolerating some light foods with some
fluids by mouth" without nausea or vomiting. On November
9, Montemayor's husband called Dr. Hilmy's office to
inform them of his wife's cognitive deterioration, and he
was instructed to take Montemayor to Valley Baptist Medical
Center. Montemayor was admitted to the hospital with
neurological symptoms, including cognitive abnormality. She
was seen by a neurologist and diagnosed with WE.
the course of four months, Montemayor struggled with
excessive nausea and vomiting. Montemayor alleges that she
developed permanent neurological impairment as a result and
brought a healthcare liability suit against APC and each
physician she saw in the four-month period prior to her
diagnosis. In support of her claims and pursuant to the Act,
Montemayor submitted multiple expert reports by four
physicians and one nurse. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351. The reports collectively
maintain that had Montemayor been given thiamine supplements
at any point prior to her deterioration in November, it is
medically likely that she would not suffer from the severe
cognitive impairment that she does now.
Todd Eisner, a physician licensed to practice in Florida and
New York since 1989 and specializing in gastroenterology,
submitted a report discussing Dr. Phillips's alleged
culpability. His report contained separate sections
addressing the applicable standard of care, breach of the
standard, and causation. In the standard of care section, Dr.
Eisner opined, in part, that the standard of care is:
[F]or a reasonable gastroenterologist, when managing a
patient who is status post gastric sleeve, specifically
someone such as Ms. Montemayor, who had a post-operative
anastomotic leak, and is unable to maintain meaningful oral
intake, to monitor laboratory data including thiamine and