Two Texas laws shield hospitals that “hire” incompetent, bad doctors

 

We sued a neurosurgeon for making our client quadriplegic—the same doctor is now spending life in prison for his conduct in Dallas-area operating rooms

 
March 28, 2017

Throughout my career as a Houston medical malpractice lawyer, I have encountered a lot of surgeons whom I felt were reckless in their medical practices and dangerous to patients.

Over the years, several of my clients have described their former surgeons as uncompassionate and butchers. When they ask whether something can be done about their surgeons’ medical license, or even criminal charges, I share the sad news about how Texas law bends over backward to protect hospitals and their surgeons—even the terrible ones.

But recently, there was an extreme line of cases involving one surgeon. And, unfortunately, it takes something extreme to get a medical license or criminal action against a doctor under Texas law!

If you have been the victim of medical malpractice, call 281-580-8800 to reach the Texas medical malpractice attorneys at Painter Law Firm.

The shocking story of neurosurgeon Christopher Duntsch, M.D.

A few years ago, I represented Jerry Summers, a man in his 40s, in a medical malpractice case. Jerry was rendered quadriplegic during a back surgery by neurosurgeon Dr. Christopher Duntsch. It all happened on an operating room table at Baylor Regional Medical Center, in Plano, Texas.

While I was handling Jerry’s legal matter, the Texas Medical Board suspended Dr. Duntsch’s medical license. This, in and of itself, is surprising, considering the Texas Medical Board’s general reputation as being a joke of a board and moving as slow as molasses. Six months later, the board and Dr. Duntsch agreed to an order revoking his medical license in lieu of further disciplinary proceedings.

But Dr. Duntsch’s loss of his medical license was the least of his worries. It was not long until a Dallas County grand jury handed down indictments on five counts of aggravated assault with a deadly weapon and a single count of harming an elderly patient. All of these indictments involved care that Dr. Duntsch provided to his patients.

Prosecutors told the jury about more than 30 patients at Dallas-area four hospitals who were injured or died under Dr. Duntsch’s care in a year and a half period.

The jury heard about a patient at Baylor Regional Medical Center at Plano who bled to death during surgery. They heard about a patient at Dallas Medical Center who died of a stroke after an operation. And, of course, prosecutors highlighted the care that Dr. Duntsch botched regarding my client, Jerry Summers, which left him quadriplegic.

During the approximately 18-month period that he practiced in the Dallas area, Dr. Duntsch went from Baylor Regional Medical Center in Plano to Dallas Medical Center. From there, he went to Legacy Surgical Center in Plano, and then went on to University General Hospital. Did each hospital after Baylor know what Dr. Duntsch had done at the previous hospitals? For the reasons I explain below, it is hard to say.

In February 2017, a Dallas County jury convicted Dr. Duntsch of a first-degree felony charge of injury to an elderly person, and he was sentenced to life in prison. The prosecutors announced that Dr. Duntsch is the first doctor in America to be convicted for behavior inside the operating room.

This can happen because of lax Texas law regarding doctors and hospitals

For a long time, many Texas politicians and elected officials have cowered to the powerful and well-funded hospital and medical lobbyists, at the expense of patient safety.

The sad truth is that Texas law does not hold hospitals accountable for the doctors that they allow to practice at their facilities. And, because of that, patient safety is compromised and surgeons like Dr. Duntsch can harm or cause the death of more than 30 patients before being stopped.

Two laws, in particular, have created a system that allows this type of care to fly under the radar until it is too late.

Medical committee proceedings, including why they “hired” a doctor, are secret and privileged

First of all, I should clear up something. Texas hospitals do not really “hire” doctors. That is why I put the word in quotes.

I realize that this is an odd revelation, considering how you see billboards all over Houston advertising how Memorial Hermann or Houston Methodist Hospital has the best doctors. Under the Texas Corporate Practice of Medicine Doctrine, hospitals cannot practice medicine; thus, they cannot truly hire doctors.

Instead, a hospital medical peer review committee “credentials” doctors to work as independent contractors at their facility. Texas law says the following about the proceedings and decisions of a medical peer review committee:  "All proceedings and records of a medical peer review committee are confidential, and all records of, determinations of, and communications to a committee are privileged and are not discoverable, with certain exceptions. . . ."

As if that were not enough, in 1996, the Texas Supreme Court issued an opinion that expanded the interpretation of the statute, holding that the privilege and confidentiality extend to both the medical peer review committee’s original and subsequent credentialing decisions. 

Now let me translate this into plain English.

If you sue a doctor in a medical malpractice lawsuit, you cannot subpoena or obtain any documents from the medical peer review committee related to its original credentialing decision to “hire” and let a doctor onto the hospital’s medical staff.

You also cannot obtain this information by subpoenaing a member of the committee to testify. All that information is kept secret under lock and key, courtesy of the Texas legislature.

The same is true for later committee discussions and decisions by the medical peer review committee to allow a doctor to continue to practice on the hospital’s medical staff. That means if a surgeon has a series of bad outcomes at a hospital that is reviewed by a medical peer review committee, then that information is privileged and secret. And so is the committee’s decision that allows the doctor to continue to practice at the hospital.

Even in the civil case that I handled against Dr. Duntsch, all of the medical peer review committee information and documents that showed why Baylor Regional Medical Center at Plano allowed him to practice medicine in their facility was off-limits in the lawsuit.

This makes it easier to understand why it is very, very hard for patients, families, and advocates to do research on doctors. You cannot find out a doctor or surgeon’s “track record,” even though the hospital has a detailed record of it.

Essentially, the only way you can find out anything is through medical malpractice lawsuits filed in civil courts.

The practically-impossible standard to sue a hospital for its doctor “hiring” and retention decisions

Do you think that the cloak of secrecy granted to medical peer review committees was enough to protect their desire to have open, frank discussions that would not leave the room? The Texas legislature does not think so.

By Texas statute, a plaintiff cannot sue a hospital for its “hiring” or credentialing decision involving a doctor without proving malice. Texas Occupations Code Section 160.010 says:  "A cause of action does not accrue against a member, agent, or employee of a medical peer review committee or against a health care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of medical peer review."

To prove malice, a plaintiff much show “a specific intent by the defendant to cause substantial injury or harm to the claimant.”

Practically speaking, how can a plaintiff ever prove malice when all of the hospital medical peer review proceedings and documents are privileged? This was precisely asked by a plaintiff in a 2005 case that was on appeal to the Texas Supreme Court.

In that case, a Harris County jury found that Kingwood Medical Center’s committee acted with malice in allowing Dr. Merrimon Baker to practice at the hospital. According to the Texas Supreme Court opinion, the evidence presented by the plaintiffs included the following. When Dr. Baker was being initially considered for credentialing, he had been sued 10 times for medical malpractice in the preceding five-year period. Not long after the committee gave him staff privileges, Dr. Baker’s office manager suspected that he was abusing hydrocodone (also called Lortab or Vicodin).

The Texas Supreme Court decided the jury’s decision was wrong, and said that there was no evidence that actually showed malice. In its written decision, the Supreme Court commented, “We do not doubt that such evidence of malice is difficult to come by, by the Legislature has made recovery for improper credentialing of physicians difficult.”

In other words, the Texas legislature believes that it is just too bad for patients and their family members if a hospital credentials a bad doctor butcher surgeon to work at its facility—because that it the law that is on the books. You can sue the surgeon, but it will be practically impossible to hold the hospital accountable for its “hiring” decision of the doctor.

What you can do

The best way to avoid injury and death at the hands of an incompetent doctor is to avoid being his or her patient in the first place. While the official hospital information and documents are privileged and secret under Texas law, the internet makes a lot of information available. Search for online reviews, Facebook posts and comments, news articles, and other websites. Take advantage of this information.

Next, search the Texas Medical Board’s online records on a doctor to gain instant access to the doctor’s birthdate, medical school name and year of graduation, residency and fellowship training, board certification, specialty information, and hospitals where the doctor practices. In addition, the database provides limited information about lawsuit history (only medical malpractice jury verdicts that are final and upheld on any appeal), and recent actions against the doctor by the Texas Medical Board. . The Texas Medical Board also allows patients to make internet complaints concerning doctors, although, in my opinion, the board does a poor job of investigating them or even treating them seriously. 

Another good place for research is the Harris County District Clerk’s website. You have to register and be approved to use it. The site allows you to search current and prior Harris County District Court cases. You can enter in your doctor’s name in the Defendant’s field and see what comes up.

If you have the misfortune of experiencing medical malpractice from a doctor first-hand, call 281-580-8800, for a free consultation with the experienced medical malpractice lawyers at Painter Law Firm.

Robert Painter

Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.

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