Phillips v. Montemayor

          On appeal from the 445th District Court of Cameron County, Texas.

          Before Justices Benavides, Hinojosa, and Perkes

          MEMORANDUM OPINION

          GREGORY T. PERKES JUSTICE.

         This 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).^[1] See Tex. Civ. Prac. & Rem. Code § 74.351(b). We affirm.

         I. Background

         A. Montemayor's Medical History

         According 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 leak.

         On 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 him.

         On 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 that he:

[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].

         The 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, ^[2] 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."

         On 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.

         Over 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^[3] 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.

         B. Expert Reports

         Dr. 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 ...