Hospital Patients and Workers' Rights!: 2014

"Licensed to Kill: What legal responsibility does a hospital have to keep a dangerous doctor from operating? Under Texas law, none"
2014-05-01 by Saul Elbein [http://www.texasobserver.org/licensed-kill/]:
Click to read Barry Morguloff’s suit against the Baylor Health Care System [http://www.texasobserver.org/wp-content/uploads/2014/04/Morguloff-Complaint.pdf].
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In January 2012, Barry Morguloff, a 45-year-old Dallas man, went to his doctor at Baylor Regional Medical Center of Plano, complaining of back pain. When steroid injections didn’t work, his doctor referred him to the hospital’s new surgeon: Christopher Duntsch.
Morguloff’s surgery, a spinal fusion, didn’t go well. Dr. Randall Kirby, a prominent Dallas surgeon who assisted Duntsch in the surgery, compared Duntsch’s technique to that of a first-year medical student. Duntsch, he later wrote, didn’t seem to have any understanding of spinal anatomy. Morguloff says he woke up with agonizing pain in his left leg; Duntsch prescribed him painkillers and told him the pain would go away. Six months later, a doctor at Presbyterian Hospital of Dallas found that Duntsch had installed the spinal hardware wrong and left bone fragments in the nerves of Morguloff’s back, requiring another round of surgery to remove them.
(Photo: Dr. Christopher Duntsch)

In March, Barry Morguloff—along with three other plaintiffs in related suits—sued the Baylor Health Care System in federal district court in Dallas. The lawyers representing Morguloff, Kenneth Fennell, Mary Efurd and Leroy Passmore are coordinating their cases, arguing that Duntsch was dangerous and Baylor should have stopped him from operating on them. Their stories have the trappings of farce: For example, when Duntsch operated on Passmore, a Collin County medical examiner, in December 2011, the surgery went so badly that the assisting surgeon grabbed Duntsch’s surgical instruments and tried to force him to stop, according to Passmore’s lawsuit. (He failed.) Morguloff’s complaint cites the case of another patient—one of Duntsch’s first at Baylor—who he left unattended in the recovery room while he went to Las Vegas.
According to his attorneys, Morguloff will walk with a cane for the rest of his life. Passmore suffers from constant pain and, according to his suit, can’t “lift objects of any significant weight.” Efurd and Fennell allege in their lawsuits that they sustained severe nerve damage.
The striking thing about Duntsch’s relationship with Baylor Plano is just how tolerant the hospital was of his behavior—according to the lawsuits, he literally had to kill someone to get fired. A month after Morguloff woke up in agony, Duntsch operated on Jerry Summers, his best friend and former roommate. According to Morguloff’s lawsuit, Summers woke up from surgery a quadriplegic; he told Baylor’s ICU staff that Duntsch had been up using drugs all night.
Baylor suspended Duntsch for a month. In his first surgery after his suspension lifted, he nicked the vertebral artery of Kellie Martin, a 55-year-old Garland woman. She bled to death in the ICU.
According to Morguloff’s lawsuit, Baylor didn’t raise a stink about Summers’ paralysis or Martin’s death. It didn’t report Duntsch to the National Practitioner Data Bank, a database managed by the U.S. l Department of Health and Human Services—even though hospitals are required, by law, to inform the NPPD when they suspend a doctor. Instead, according to the lawsuits, the hospital let him go quietly.
Morguloff’s lawsuit includes a letter that Baylor gave Duntsch the day he resigned, asserting that Duntsch had no outstanding investigations or restrictions at Baylor. This allowed Duntsch to go on to get credentials at the Dallas Medical Center, where a woman named Floella Brown would bleed to death after he cut into her vertebral artery. And it allowed him to operate on Efurd and Fennell, the other two plaintiffs. During a spinal fusion on Efurd, a Plano woman, in 2012 at Dallas Medical Center, Duntsch amputated a nerve root and placed her spinal fusion hardware far from her spine, leaving her severely injured. In his surgery on Kenneth Fennell, a Dallas small business owner who worked for a pool repair company, Duntsch nicked Fennell’s femoral nerve; Fennell now claims he has nerve damage and chronic pain.
When I wrote about Duntsch last August, there were quite a few unanswered questions. Chief among them: Why did he do it? Was he a sociopath? A drug addict? And with his record of patients dying or ending up paralyzed, how was he allowed to keep practicing?
Thanks to the new litigation, we have at least a few answers. According to the lawsuits, Duntsch had drug problems that Baylor should have known about. The lawsuits allege a shocking list of behaviors that, if true, should have been huge red flags for Baylor. They contend he was in treatment for drug abuse during his residency at the University of Tennessee. That he was abusing prescription drugs and skipped out on five drug tests that Baylor Plano asked him to take, without any consequences. That he kept a bottle of vodka under his desk; that a bag of white powder showed up in his private bathroom. That he took off for Las Vegas immediately after a surgery, leaving his patient unattended. But despite this, and despite the numerous warnings about Duntsch from doctors and nurses who had worked with him, Baylor continued to allow Duntsch to operate, and even publicized his practice and encouraged doctors like Morguloff’s to refer their patients to him.
According to the lawsuits, the reason for this was simple: The hospital had advanced Duntsch $600,000 to move from Tennessee to Dallas. “Baylor had spent a lot of money on Duntsch,” attorney Jim Girards wrote in Passmore’s complaint, “and they wanted it back.” If he didn’t work, they didn’t get paid.
But in Texas, it is extremely difficult to use the courts to hold a hospital accountable for allowing a dangerous doctor to operate, thanks to a decade-long campaign, aided by the Texas Supreme Court and the Texas Legislature. Under current law, Baylor Plano can make money off a high-dollar surgeon like Duntsch without being financially accountable for anything that he does.
The four Duntsch patients want to change that. Their only recourse is to challenge the constitutionality of the laws shielding Baylor Plano. If they win, hospitals could once again be responsible for the actions of the doctors they allow to practice. But they’re confronting powerful opponents, not just a lucrative hospital. Texas Attorney General Greg Abbott, who’s made limiting lawsuits a feature of his political career, is facing off against them in court. Barring an upset in court, it’s likely that the hospitals who allowed Duntsch to kill and maim patients will never pay a cent in damages.
Tort reform—an effort to reform liability laws to make it harder for plaintiff to sue—had been a major aim of the Republican Party since the mid-1990s, when cases like Liebeck v. McDonald’s —the infamous “woman sued McDonald’s because her coffee was too hot” case—began to circulate in the media, part of a PR campaign by the tobacco and insurance industries to convince Americans that the country faced an onslaught of frivolous lawsuits.
Never mind that Liebeck required skin grafts, or that McDonald’s had already received more than 700 complaints of injuries from scalding coffee. The frivolous lawsuit line fit into both American distrust of lawyers and the “other people are taking what’s yours” narrative so dear to American conservatism.
After President Bill Clinton vetoed a 1996 tort reform bill that, he said, “tilted the playing field against consumers,” the tort reform campaign shifted to the states. The campaign wasn’t totally baseless—trial lawyers wielded an enormous amount of power in Texas back in the 1980s and 1990s. But the reformers went far beyond a small correction. In Texas, virtually the only defense people have against malpractice by doctors and hospitals is the civil courts. And in the late 1990s, the Texas Legislature and Texas Supreme Court began working in tandem to strip those defenses away.
The first blows came from the courts. In 1996, in two separate cases, the Republican-dominated Texas Supreme Court held that hospital credentialing records were confidential. To practice medicine in a hospital, a doctor has to receive permission, or credentials, from the hospital. The credentialing process can generate documents that provide insights into the hospital’s due diligence and the doctor’s past.
After Supreme Court ruling, plaintiffs trying to prove that a hospital had erred in giving a doctor credentials had to do so without having access to the documents.
Then in 1997, in St. Luke’s Episcopal Hospital v. Agbor, the court made a decision that led to a further deterioration in the rights of patients. The Agbors sued St. Luke’s after their baby’s arm was permanently crippled during birth. They argued that St. Luke’s never should have given their doctor credentials, given her lack of medical malpractice insurance and the numerous malpractice cases she’d racked up.
During the trial, St. Luke’s lawyers made an innovative argument. Under Texas law, anyone suing a hospital for improper credentialing had to demonstrate that the hospital had acted with malice. Until Agbor, this had been understood to be a standard for doctors: A litigious doctor suing a hospital’s peer review board for denying him or her the right to practice had to prove that the board had done so to harm him deliberately.
St. Luke’s lawyers stood this precedent on its head and argued that it should also apply to patients. The Agbors, they said, had to prove that the hospital had acted maliciously toward them by giving the doctor credentials. The Supreme Court agreed and the Agbors lost.
The ruling hit malpractice lawyers like a thunderbolt. This new standard was “idiotic,” said Paula Sweeney, a Dallas attorney and authority on medical liability. “What the Legislature intended was for hospital staff to be able to get rid of a bad egg if they wanted to do that.”
Together with the new secrecy around credentialing, it became very difficult to successfully sue hospitals for permitting a dangerous doctor. “It was a perfect Catch-22,” Sweeney wrote me in an email. “You have to prove malice but you can’t get any evidence to do it.”
But the ruling didn’t kill the ability to sue hospitals. You had to prove malice, but malice then was a broader category than it is now: It included the legal concept of “gross negligence,” which means knowing something is dangerous and doing it anyway. Mike Lyons, Morguloff’s attorney, defined gross negligence to me as akin to “knowingly allowing a child sex offender to take a job in a pre-school.”
If someone could prove in court that, say, hospital administrators knew that a doctor was addicted to cocaine and that his patients had a tendency to wake up paralyzed, the attorney had a reasonable chance of winning the case even without credentialing documents. But then in 2003 the Legislature closed even that avenue.
In the years leading up to the 2003 session, a coalition of Texas medical interests and insurance companies unveiled a new plan which would, they said, massively increase Texans’ access to medical care. The coalition, which included the Texas Medical Association, the Texas Hospital Association and groups like Texans for Lawsuit Reform, argued that doctors were fleeing the state. Texas, they claimed, had become “the lawsuit capital of the world.”Greedy patients were teaming up with cynical fat-cat trial lawyers to file frivolous big money lawsuits that were chasing away Texas doctors. While relatively few doctors were sued, the argument went, the judgments helped lead to expensive medical malpractice rates. Tort reformers argued that these high rates were chasing away doctors.
If that sounds oversimplified, well, that really was about the level of debate at the time. Some of the reformers’ arguments were simply false: Texas was gaining doctors, not losing them. And while it was true that medical malpractice rates had spiked in the years before the session, the role of lawsuits in the spike is disputed. According to a 2003 Public Citizen report, rates were climbing because insurers had kept them artificially low throughout the 1990s in an industry-wide competition for market share.
But tort reform had a seductive ring to it. I have on my computer a 2002 direct mailer in support of Proposition 12, the ballot measure that enacted sweeping changes to Texas’ civil liability laws. The front has the face of a concerned-looking guy in a lab coat juxtaposed with a fat-faced schmuck smoking a cigar. Below it, in bold text: “Whom would you trust … If your life was on the line?”
Given that choice, the answer was obvious. Proposition 12 overwhelmingly barely passed, with 51 percent of the vote. The measure didn’t end up dropping medical costs or attracting more doctors to Texas. But it did make it dramatically more difficult—and in the case of hospital credentialing, impossible—to successfully sue a hospital.
The best-known provision: the Legislature capped all non-economic damages—pain and suffering and the like—at $250,000. The idea was to keep juries from handing out big awards based on squishy emotional appeals. But because plaintiffs could still get compensated for hard costs, like lost wages, the effect was to kill medical malpractice lawsuits for all but the richest plaintiffs.
“When you cap non-economic damages but not economic damages, your worth is what your paycheck is,” said Alex Winslow of Texas Watch, a nonprofit consumer watchdog. “If you’re a corporate CEO, or a lawyer, and you can calculate high economic damages, you might be able to get a case to court. For the rest of us, who don’t have huge economic damages, we won’t get to go to court. The effect of the law has been such as to close the courts for most victims of medical malpractice.”
And as they made it difficult to get much money from doctors, lawmakers made it impossible to get anything from hospitals. With House Bill 4, the legislation that Prop 12 enacted, the Legislature took the legal tool of “malice” and rendered it useless.
In House Bill 4, the Legislature rewrote the definition of malice to mean “specific intent to harm.” Under the new law, a plaintiff now had to prove that a hospital had given a bad doctor credential in an effort to hurt them, the patient. This is basically a horror movie scenario. And like a horror movie, it’s hard to imagine it actually happening.
“The standard is impossibly high,” Alex Winslow of Texas Watch told me. “Other than the hospital administration turning to the doc and saying, ‘Here’s your next victim, go get them,’ I don’t even know how anyone can meet that standard.”
And, he said, it misses the point: Patients have little way of knowing first-hand about the quality of a hospital’s doctors. They rely on hospitals for that.
“The hospital should have some legal responsibility for making sure doctors seeing patients have a safe track record,” he said, “that they have no history of abuse, they’re not on drugs, they’re meeting basic standards of safety. And law doesn’t require that.”
In 2005, all the pieces came together, as the Texas Supreme Court showed just how high the bar now was for suing a hospital. In a case that gruesomely foreshadowed Duntsch’s, the court completed the work of shielding hospitals entirely from liability.
On July 15, 1998, Ricardo Romero went in for elective back surgery to Columbia Kingwood Medical Center, in northeast Houston. His doctor was Merrimon Baker, a South Carolina resident who had been sued 10 times for malpractice. Baker also had a serious hydrocodone addiction, according to the Supreme Court decision.
No one at the hospital told the Romeros any of this.
The Romeros also weren’t told that Baker had been suspended a month before Romero’s surgery by Cleveland Regional Medical Center, another Houston hospital, for operating on a patient’s wrong leg. Baker had secured a temporary restraining order to keep Cleveland from telling Columbia’s administrators what had caused his suspension, even though one doctor served on both hospitals’ peer review committees. That restraining order expired the day after Romero’s surgery.
That was a day too late. During surgery, Baker perforated Romero’s spine. Over the next 45 minutes Romero lost, according to the Supreme Court decision, “almost all of the blood in his body.” Romero’s heart stopped, and though the doctors resuscitated him he was left brain damaged to the point that he was unable to care for himself.
Dolores Romero, Ricardo’s wife, sued Columbia Regional for letting Baker operate. At trial, a jury awarded the Romeros $28.6 million and punitive damages of $12 million. Columbia appealed.
The Romeros had to prove “malice,” but because Romero’s surgery had happened before the Legislature weakened the statute, the family could still argue that malice included gross negligence. But the appellate court’s decision demonstrated how much patients’ rights had been eroded even since the late 1990s.
The appellate court ruled that Baker did represent an “extreme risk” to his patients. But because Columbia had the right of keeping its credentialing files confidential, there was no way to know that it hadn’t taken actions to protect patients, such as requiring him to take drug tests. “But one thing we do know,” the judge ruled, “we cannot infer anything from this lack of information.”
In other words, the Romeros couldn’t prove Columbia hadn’t done anything to rein Baker in, because Columbia didn’t have to show the documents that would prove whether they did anything. Without looking at the secret documents, who could say the hospital had done anything wrong?
The Texas Supreme Court went even further. Even if Baker was incompetent, Justice Nathan Hecht wrote in the majority opinion, and even if Columbia’s peer review board knew it, “there is no evidence … that questions about Baker’s competence required Columbia to keep him from operating on Romero as he did.” In other words, it was no longer a given that a hospital shouldn’t have allowed a drug-addicted doctor with a history of malpractice cases to operate. One now had to prove it.
It is perhaps worth nothing here that Texas Supreme Court justices are elected, and from 2000 to 2014 Hecht would go on to take $83,500, or about 5 percent of his total, from pro-tort reform interests.
There was a terrifying logic to Hecht’s decision, which blended all the bills and decisions that had come before into a poisonous cocktail of total hospital immunity. Hospital boards now existed in a state of perfect ignorance —they could let doctors operate with impunity. If you kept your eyes on the trees, you didn’t have to notice that the forest was burning.
Where does this leave Dr. Duntsch’s victims? With little choice but to challenge the constitutionality of the malice law upon which the hospital immunity rests. The legal challenge in the Baylor case is the first constitutional challenge since tort reform to the credentialing laws, the first attempt to open hospitals back up to liability for the doctors they allow to practice. But Barry Morguloff and the three other plaintiffs are facing a powerful adversary: Texas Attorney General Greg Abbott, who is the Republican nominee for governor.
Tort reform has been a major feature of Abbott’s political career. In 2002, when Abbott was running for attorney general against Kirk Watson, he made tort reform a central plank of his campaign. In his campaign literature, he referred to Watson as a “plaintiff personal injury trial lawyer,” which is to say, the kind of lawyer people love to hate.
Abbott was well-supported in that campaign, and in all subsequent ones, by groups pushing lawsuit reform. According to Texans for Public Justice, between 1997 and 2014 Abbott took in $2.3 million in contributions from doctors, hospitals and the two PACs set up to push tort reform. About $400,000 came directly from hospitals.
Abbott was well-supported in that campaign, and in all subsequent ones, by groups pushing lawsuit reform. According to Texans for Public Justice, between 1997 and 2014 Abbott took in $2.3 million in contributions from doctors, hospitals and the two PACs set up to push tort reform. About $400,000 came directly from hospitals.
If anything, those numbers understate how much he’s brought in from tort reform interests. In his gubernatorial race, Abbott has brought in $2.8 million from what Texans for Public Justice calls “tort tycoons,” the 34 super-rich Texans who also gave heavily to pro-tort reform groups like Texans for Lawsuit Reform PAC. Since his race for Attorney General in 2001, they’ve given Abbott $10 million. All told, about one out of every five dollars he’s raised in his time in office has come from people and political groups staunchly imposed to strengthening the tort laws.
Abbott’s involvement in the lawsuits puts him in the uncomfortable position of appearing to defend Baylor. The Dallas Morning News, which broke the story of Abbott’s intervention, gave it the headline “Abbott Sides with Baylor hospital in neurosurgeon lawsuit.” The plaintiffs’ lawyers immediately pounced on Abbott.
“Mr. Abbott is making it clear that his priority is to protect hospitals, not the patients they harm,” Kay Van Wey, the lawyer for Kenneth Fennel and Mary Efurds, told The Dallas Morning News.
Jim Girards, Passmore’s attorney and the man who came up with the constitutional challenge strategy, was even more blunt. “I think it’s absolutely insane that he has chosen to defend the hospital that enabled this … sociopathic neurosurgeon to wreak havoc on its patients,” he told The Dallas Morning News. “I hate to think he’s doing it to pander to the medical lobby.”
This made the Abbott camp unhappy. “The Dallas Morning News’ article is misleading and filled with errors about the State’s involvement in this case,” spokesperson Lauren Bean wrote in a statement to me. The attorney general’s office, she explained, wasn’t defending Baylor or Duntsch, it was defending the law. If Duntsch or Baylor were found to have violated the law, they would be held accountable, and nothing that the attorney general’s office had done would change that.
The plaintiffs’ attorneys response: bullshit.
“[Abbott] has the ability to get involved in a case like this,” Girards told me, “but he doesn’t have the obligation. He chose not to get involved with other cases with significant constitutional issues. It gives a clear impression that he is jumping into this case to pander to the people giving him money.”
If the federal court rules that the plaintiffs suing Baylor are wrong, there will be no way to hold hospitals accountable for the doctors they hire. Hospital administrations will retain all the incentives to hire doctors—prestige, a cut of the money from their surgeries—with no consequences for keeping a Dr. Duntsch in the operating room.

"Abbott sides with Baylor hospital in neurosurgeon lawsuit"
2014-03-25 by Doug Swanson [www.dallasnews.com/news/community-news/plano/headlines/20140325-abbott-sides-with-baylor-hospital-in-neurosurgeon-lawsuit.ece]
(photo: Greg Abbot)

The Baylor Regional Medical Center at Plano, accused of protecting a neurosurgeon who allegedly killed and maimed patients, gained an ally this week in Texas Attorney General Greg Abbott.
Abbott filed motions to intervene in three separate federal court suits brought against Baylor Plano by former patients of Dr. Christopher Duntsch. They have alleged that Baylor knew Duntsch was a dangerous physician but did not stop him from performing back surgery.
The suits challenge the constitutionality of a state law that requires the plaintiffs to prove that Baylor acted with actual intent to harm patients. Abbott seeks court permission to defend the statute.
If Abbott’s position is upheld, the patients would have a much harder time winning a suit against Baylor. One of the plaintiffs’ attorneys, James Girards of Dallas, criticized the attorney general’s motion.
“I think it’s absolutely insane that he has chosen to defend the hospital that enabled this … sociopathic neurosurgeon to wreak havoc on its patients,” Girards said. “I hate to think he’s doing it to pander to the medical lobby.”
Kay Van Wey, a Dallas lawyer who filed two of the suits, also attacked the attorney general. “Mr. Abbott is making it clear that his priority is to protect hospitals, not the patients they harm,” she said.
On Tuesday, Baylor lawyer John Scully said: “We disagree with the plaintiffs’ claims about the statute at issue.”
Abbott, who is running for governor, is not required by law to defend the statute but has the legal right to do so. A spokeswoman said Tuesday the attorney general would not comment on the matter.
Duntsch performed a number of “minimally invasive” spine surgeries at Baylor Plano in 2012. He was later accused of botching many of the procedures.
Now living in Colorado, Duntsch has argued that he was the victim of misunderstandings, rival surgeons and personal injury lawyers. “Ninety-nine percent of everything that has been said about me is completely false,” he told The Dallas Morning News last month.
The Texas Medical Board suspended Duntsch’s license last summer and revoked it in December.
The Texas Department of State Health Services, which regulates hospitals, has begun an investigation into Baylor’s physician supervision and credentialing.
Baylor has previously denied any wrongdoing.
The three federal suits accuse Baylor Plano of putting revenue ahead of patient safety. Duntsch told The News that Baylor made an average net profit of $65,000 on every spinal procedure he performed.
Two of his patients, Kenneth Fennell and Lee Passmore, say they were harmed during surgery at Baylor Plano. A third patient, Mary Efurd, claims she suffered severe nerve damage during surgery by Duntsch at Dallas Medical Center.
Efurd’s suit notes that Baylor sent Dallas Medical “a letter of recommendation for Duntsch” which “allowed [him] to operate on even more unsuspecting victims.”
A fourth federal suit, on behalf of former Duntsch patient Barry Morguloff, is expected to be filed this week.
“We are mounting the same constitutional challenge,” said Morguloff’s lawyer, Michael Lyons of Dallas. Regarding Abbott’s motion, he said: “They want to do everything they can to keep the average citizen from having access to the courts.”
The law that the suits have challenged was part of the Texas Legislature’s 2003 lawsuit changes. Among the many provisions was the removal of the term “gross negligence” from the definition of legal malice.
Now plaintiffs in civil actions must prove that a hospital had “specific intent … to cause substantial injury.”

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