August 22, 2019

The Court of Appeals Thirteenth District of Texas Corpus Christi-Edinburg (“Texas Appellate Court”) held in its Memorandum Opinion filed on July 17, 2019 that the trial court did not abuse its discretion in a Texas medical malpractice case in its failure to grant the defendant’s motion to dismiss, stating that the plaintiff’s expert’s report “is a good faith effort for an explanation of causation.”

The Underlying Facts

The plaintiff underwent a laparoscopic sleeve gastrectomy on July 29, 2015. At the time of her surgery, the plaintiff weighed 228 pounds. Within the four-month period immediately following the surgery, the plaintiff lost 50 pounds during a one-month period. The plaintiff was seen by various doctors during the four months after the surgery, complaining of sore throat, fever, nausea, vomiting, and weakness, for which she was instructed to supplement her diet with protein shakes and take her anti-nausea medication as needed. A “swallow study” found a leak near the plaintiff’s stomach. In late September, the plaintiff’s primary care physician documented that the plaintiff was suffering from dehydration, failure to thrive, and gastroparesis. On October 20, surgery was performed to fix the leak. Despite the surgery, the plaintiff continued to experience nausea and vomiting.

The plaintiff was treated for dehydration with IV fluids, and reported being unable to keep food down for weeks; her weight decreased to 168 pounds. The plaintiff was diagnosed with “failure to thrive, cachexia, severe protein calorie malnutrition, nausea, and vomiting.” The plaintiff was encouraged to take her anti-nausea medication as needed and protein shakes as tolerated. The plaintiff continued to experience nausea and vomiting.

On October 31, the plaintiff was admitted into the care of the defendant home health services company. The defendant documented that the plaintiff was weak, had fallen, and was unable to eat or drink due to her nausea, and the nurse observed a reported “increase in blurred vision.” On November 9, the plaintiff’s husband notified a doctor of his wife’s cognitive deterioration. The plaintiff’s husband was instructed to take his wife to the hospital, where she was diagnosed with neurological symptoms, including cognitive abnormality. The plaintiff was seen by a neurologist who diagnosed her with Wernicke’s Encephalopathy (WE), a thiamine deficiency.

The plaintiff alleged in her Texas medical malpractice lawsuit against the defendant home health services company and each of the doctors who saw her during the four-month period following her surgery, that her excessive nausea and vomiting during that four-month period caused her to develop permanent neurological impairment. In support of her claims and pursuant to the Texas Medical Liability Act (the Act) (TEX. CIV. PRAC. & REM. CODE § 74.351(b)), the plaintiff submitted multiple expert reports by four physicians and one nurse that collectively maintain that had the plaintiff 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.

Following a review of the collective reports, the trial court concluded that the plaintiff provided a good faith effort to comply with the statutory requirements and denied the appellants’ motions for dismissal. The defendants appealed.

Texas Appellate Court Opinion

The Texas Appellate Court stated that with respect to alleged inconsistencies among the plaintiff’s reports, the trial court resolved them when the court decided the reports demonstrated a good faith effort as required by the Act: “the reports taken together set out the standard of care.” The Texas Appellate Court held: “Because [the plaintiff’s] experts’ reports provided expert opinions regarding the applicable standard of care, a statement identifying the manner in which the care rendered by [the defendant doctor] failed to meet the standard, and an explanation of the causal relationship between that failure and the injury claimed, the trial court did not abuse its discretion in denying [the defendant doctor’s] motion to dismiss.”

The defendant home health care services company argued on appeal that the plaintiff’s reports failed to explain how and why any alleged delay in diagnosis might have been avoided if the plaintiff’s physicians were notified again of the same symptoms of which they were already aware, but which did not result in a diagnosis or treatment of thiamine deficiency prior to November 9. The Texas Appellate Court stated that the plaintiff’s expert’s report acknowledges that, although the plaintiff was likely already suffering from “some degree” of WE by the time she went into the defendant home health care services company’s care, it was under its care that the plaintiff first exhibited persistent cognitive symptoms. The expert opined that had the defendant home health services company kept the plaintiff’s physicians abreast daily of her persistent symptoms, as the standard of care dictates the defendant should have, the progression of WE could have been halted, sparing the plaintiff long-term damage and disability because “days make a difference in treating this condition.” The Texas Appellate Court held that the expert’s report “is a good faith effort for an explanation of causation.”

Source Phillips v. Montemayor, Number 13-18-00608-CV.

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