A new medical malpractice case in El Paso sheds light on how Texas law allows hospitals to permit incompetent, dangerous doctors to continue practicing.
How terrible Texas laws keep hospital-physician arrangements secret
A unique Texas legal concept called the corporate practice of medicine doctrine prohibits non-physicians from practicing medicine. This means that hospitals can’t directly employee doctors. Hospitals are responsible for the mistakes and negligence of their employees, including nurses and techs. They are not responsible for the mistakes and negligence of doctors.
Large hospital systems have distorted the corporate practice of medicine doctrine to something that is not even recognizable. Hospitals have created loopholes where they own and control physician practice groups, which employee and control doctors, but allow hospitals to avoid liability under this antiquated legal doctrine.
Other Texas laws make matters worse.
In an often-cited case styled St. Luke’s Episcopal Hospital v. Agbor, 952 S.W.2d 503 (Tex. 1997), the Texas Supreme Court held that Texas has no cause of action for negligent credentialing. Instead, the court held the plaintiff must show malice. Now we call that cause of action malicious credentialing.
Although hospitals don’t directly employ doctors in Texas, credentialing is the process whereby they indirectly hire doctors, or let them practice medicine on their medical staffs.
Under the malice standard, a plaintiff must show either: (1) a specific intent by the hospital to cause substantial injury to the patient (I’ve never seen facts that would support this option); or (2) behavior that (a) objectively involved an extreme degree of risk considering the probability and magnitude of the potential harm to the patient, and (b) the hospital had actual, subjective awareness of the risk to the patient, but proceeded with conscious indifference.
If that weren’t enough, Texas law has various privileges, including the credentialing privilege, peer review privilege, and hospital committee privilege, which make all documents and records relating to physician credentialing/hiring and review of adverse unavailable to the public or in litigation. Even the Texas Supreme Court recognized that combining the malicious credentialing standard with these privileges essentially makes it impossible to hold the hospital accountable for keeping a dangerous doctor on its medical staff.
What happened in El Paso?
Now, back to the new El Paso case.
As is often the case in medical malpractice matters, the background facts are tragic. It started when two loving parents noticed that their three-year-old daughter began to vomit. The infant was born with hydrocephalus, a medical condition where the brain doesn’t properly drain cerebrospinal fluid (CSF).
When there’s a diagnosis of hydrocephalus at any age, surgery is the treatment. In some cases, a brain surgery called a third ventriculostomy is done to create a way for the spinal fluid drain. In other cases, a shunt is created that drains the extra CSF into the abdomen.
This little girl had a shunt placed in Dallas shortly after birth. This type of shunt requires monitoring and replacement from time to time, so the parents had their daughter followed locally in El Paso by Robert Canales, M.D., who advertised and held himself out as qualified to handle complex pediatric critical care patients. Oddly, though, Dr. Canales’s training is as a pediatric hematologist-oncologist (blood and cancer doctor).
When the little girl started vomiting, the parents took her to see Dr. Canales. According to the plaintiffs’ petition, Dr. Canales didn’t diagnose the little girl’s condition, but told the parents to take her to the emergency room (ER) at El Paso Children’s Hospital.
Upon arriving at the hospital ER, the parents told the nursing staff that their daughter was a patient of Dr. Canales. They were quickly ushered off to a room on the ninth floor of the hospital and told that Dr. Canales would arrive shortly and was the only one that could treat the patient. Unfortunately, according to the plaintiff’s petition, Dr. Canales never showed up that evening. While they waited for hours on end, none of the ER doctors or on-call pediatric critical care physicians evaluated or treated this little patient.
Why? The plaintiffs allege that Dr. Canales had a sweetheart deal with the hospital where the nurses were told not to allow any other doctor to treat Dr. Canales’s patients except himself. The plaintiffs believed that the financially underperforming hospital relied on Dr. Canales to bring in patients and would do essentially anything necessary to keep him happy.
Sadly, the next morning—around 12 hours later after this family arrived at the hospital—the little girl went limp, turned blue, and began to foam from the mouth. The parents pressed the emergency call button and an emergency trauma team came to try to help this pediatric patient. They then transferred her to the pediatric intensive care unit. The parents recalled that Dr. Canales still did not show up at the hospital for almost three more hours.
Despite reassurances from Dr. Canales, the little girl never woke up and the parents were told that she had suffered a stroke. Later, she was declared brain dead. Four days after the vomiting began and they first sought treatment from Dr. Canales, the parents received the worst possible news, their little girl had died.
In the medical malpractice wrongful death lawsuit that followed, the plaintiffs alleged that Dr. Canales has been misdiagnosing and injuring children in El Paso for decades, and that he was unqualified and untrained in the area pediatric intensive care medicine. They further claimed that the hospital put profits ahead of patients and allowed Dr. Canales to continue to practice there despite the clear danger to patients.
According to the lawsuit petition, the hospital violated its own policies by allowing an untrained, improperly credentialed physician to practices in the complex pediatric intensive care setting at the hospital.
Whether in the hospital or courtroom, experience matters. If you or a loved one is been seriously injured by poor medical or hospital care in Texas, then contact a top-rated Houston, Texas medical malpractice lawyer to discuss your potential case.