Medical Malpractice News and Views

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The Medical Profession’s Dirty Little Secret

Posted by Bill Sandweg.

November 20, 2023

The medical profession in the United States is highly respected and highly compensated.  Members of the profession pride themselves on adhering to a Code of Ethics, in which the needs of the patient are paramount and those of the doctor are secondary.  If doctors adhered to those ethical principles, we would be living in a very different world.  Many of the principles are ignored on a daily basis to the great detriment of the patient.

Latest Medical Code of Ethics News | American Medical Association

The second principle in the AMA’s Code of Medical Ethics, states that the physician will “strive” to report to appropriate authorities any other physician who is “deficient in character or competence . . . .”  The first thing to note is the presence of the weasel word “strive.”  A doctor is not obligated to report incompetent colleagues, only to “strive” to do so.  I can only accept cases in which the malpractice is clear.  In almost every one of those cases, the other doctors who participated in the patient’s care know that there has been malpractice and know who committed it.  I almost never encounter a case in which this knowledge has prompted someone to report the malpracticing doctor to the hospital or to the Medical Board.  Not only don’t they report the doctor who committed the malpractice, unless they need to do so to defend themselves, they won’t even admit under oath that the doctor was guilty of malpractice or somehow caused the patient’s injury.

One of the routine written questions submitted to doctors at the start of a malpractice case is whether they are contending that another doctor was guilty of malpractice which caused the harm to the patient.  At the start of the case, they always dodge this question by saying that they are still investigating the matter and will provide a supplemental answer at a later time.  If I ever settle with one of the doctors, I can count on the others to suddenly realize that he was at fault for the patient’s injury and insist that the jury take his fault into account.

Medical boards and hospital committees are not the only ones kept in the dark when malpractice injures or kills a patient.  No one is usually going to tell the patient or the family either.  It happens, but only rarely.  The Code of Medical Ethics requires a doctor “to be honest in all professional interactions . . . .”  Any fair reading of this ethical provision requires a doctor who either committed malpractice or knows of malpractice by another to be honest with the patient about why he or she was injured.  Instead, mums the word.  No one offers a reason or they engage in some medical mumbo jumbo, the import of which is that sometimes stuff happens despite everyone’s best efforts.

The Code of Medical Ethics also requires doctors to work to change laws which are not in the best interests of the patient.  Not only don’t doctors do this, they actively work to get laws passed which make it more difficult for patients who have been injured by physician malpractice to receive just compensation.

When it comes to medical ethics, the rule is not to rock the boat, but be sure everyone knows that the medical profession has this great Code of Medical Ethics.  The gap between what is practiced and what is preached is enormous.

Posted in disclosure of medical mistakes, Doctors, Lawsuits, Malpractice caps, medical errors, medical ethics, tort reform |

The Defensive Medicine Scam

Posted by Bill Sandweg.

November 13, 2023

One of the complaints doctors often make is that the existence of so many frivolous medical malpractice suits forces them to practice defensive medicine.  By this they mean that the worry of a potential lawsuit makes them order tests or do other precautionary things that are of no benefit to the patient, but which can help them, if they were ever to be sued by the patient.  I say this is BS.

The Myth of “Defensive Medicine” - Sandweg & Ager PC

Our American health system runs primarily on what is called fee for service.  A doctor who performs a service is paid for that service.  If the doctor does not perform a service, the doctor does not get paid.  When a doctor orders a test, the results of that test must be reviewed and analyzed.  It may require another office visit by the patient so the doctor can review the test results with the patient.  The doctor may even do the tests in the office and receive a fee for performing the test.  As everyone can see, ordering a test results in the doctor earning a fee.  The more tests, the more fees.  Is it any wonder doctors order lots and lots of tests?  Is it any wonder that as they rake in the money, they blame the legal system and the lawyers for making them do it?

Doctors do get sued from time to time.  As I pointed out last week, they get sued far less than one would expect, given the amount of malpractice that occurs.  Some doctors go their entire careers without ever being sued.  When they do get sued, doctors win 85% to 90% of the time.  They don’t need to have ordered every test in the book or to have performed unnecessary interventions to protect themselves in the event of a lawsuit.  They do it because it puts money in their pockets.

In lamenting the fact that they are forced by the legal system to practice defensive medicine, doctors never mention that to do so is to violate the code of medical ethics they profess to hold so dear.  One of the most important of the ethical principles is that the patient comes first.  The doctor may not do things which benefit the doctor, if they are not in the best interests of the patient.  To order tests that the patient does not need because the doctor claims to be afraid of getting sued, is a violation of medical ethics.  To perform an unnecessary intervention or procedure on a patient because the doctor claims to be afraid of getting sued, not only exposes the patient to the risk of the procedure, it is a violation of medical ethics.

Complaints by doctors that they are forced by the legal system to practice defensive medicine is just another part of the campaign by the medical profession to persuade the public that they are the good guys and that the legal system is biased against them.  The statistics show that nothing could be further from the truth.  Doctors are highly respected and juries give them every benefit of the doubt, as evidenced by their win rate in court.  They don’t need to practice defensive medicine and they don’t need to blame the legal system for their unethical behavior.

Posted in Defensive Medicine, Doctors, Fee for Service, Lawsuits, medical ethics, Medical Malpractice, trial |

Where Are All The Malpractice Suits?

Posted by Bill Sandweg.

November 06, 2023

Study after study has shown that medical malpractice is a leading cause of deaths and injuries in the United States.  Some estimates place the number of annual deaths attributable to preventable medical errors at over 250,000.  This would make medical malpractice the third leading cause of death in the United States after cancer and heart disease.  Even if malpractice events are occurring at the same rate as in the past, the increase in the population of the United States alone would mean that the total instances of medical malpractice are increasing.  At the same time, the number of medical malpractice lawsuits is dropping and has been for the last thirty years.  What is happening here?

Medical Malpractice Lawsuit Guide 2023 – Forbes Advisor

According to data collected by the National Practitioners Data Bank, a national clearinghouse created by Congress to collect information about malpractice payments, with the exception of a slight upward tick around 2000, the annual number of malpractice payments has been dropping every year since they began keeping records in 1990.  In 2021, there were only about 9,000 malpractice payments made across the United States.  The number in 1991, thirty years earlier, was 19,000.   The reason fewer and fewer malpractice claims are made each year are many and mostly the result of concerted efforts by the medical profession and its malpractice insurance companies.

I have been involved in medical malpractice lawsuits for over 40 years.  I began by representing doctors and hospitals, but have been representing patients for the last 30 years.  Over that period, even as the number of claims has been declining, the doctors have been consistently complaining about being sued for malpractice and claiming that most of the suits were frivolous.  They have used their position in society to get wide publicity for these claims.  They have used their prodigious lobbying power to get state legislatures to pass laws making it more difficult for people to sue them and, when they are caught malpracticing, limiting the amount an injured person can recover.  Pushed along at least in part by their antipathy toward trial lawyers, many Republican politicians have made “tort reform” part of their governing philosophy.  Hospitals tag along with the doctors and receive protections as well.

Along with their malpractice insurance companies, doctors claim from time to time that there is a malpractice insurance crisis that requires even more protections for them in order to prevent a complete collapse of the health care system.  These malpractice insurance crises obviously have nothing to do with an increasing number of malpractice lawsuits and everything to do with the investments the insurance companies make with the premiums they collect.  The “crises” almost always occur just at the time when the stock market is experiencing a retreat.  The insurance companies have to increase the premiums they charge to offset their stock market losses.  The “crisis” recedes when the market starts going up again.  By then, however, the legislatures have usually already given the doctors some additional protection from having to be responsible for the injuries they cause.

All of this has had predictable effects which serve the interests of the doctors, hospitals and insurers and which cause fewer and fewer malpractice claims to be brought.

Doctors and hospitals win 85 to 90% of malpractice cases that go to trial.  This figure holds true pretty much all across the country.  This win rate holds even when the claims of the injured patients are strong.  Jurors cannot hear the words “medical malpractice” without the word “frivolous” lighting up in their brains in neon letters.  If you are going to lose almost all the time, why bother to file a claim in the first place?

The specialized lawyers who represent injured patients in malpractice cases are not stupid.  Medical malpractice cases are among the most time consuming, most complex, and most costly cases in our civil justice system.  I typically invest over $100,000 of legal time in every malpractice case and advance payments to expert witnesses of at least $25,000.  I don’t get paid and don’t get reimbursed for the costs I have advanced unless I either win at trial or the case settles.  No one pays when a case is frivolous.  They will only pay if the case is a strong one with significant injuries.  If I am investing this much time and money, I cannot accept a case in which I don’t think I will be able to recover at least $350,000.

Even when the case is a strong one and the patient badly damaged or killed, the state will always have erected roadblocks to either make it more difficult for the patient to win, or to limit the patient’s recovery, if she does win, or both.  Over half the states in the country impose some form of limits on the amount an injured patient can recover, regardless of how bad the malpractice was or the magnitude of the injury.  Once in place, those caps rarely change.  In 1975, California capped non-economic damages in medical malpractice cases at $250,000.  Despite inflation, that number did not change for 47 years.  Many of the cap statutes also limit what the malpractice attorney can collect, ostensibly to protect the patient.  In fact, these limitations on what the attorney can receive are intended to discourage attorneys from taking malpractice cases.

A competent medical malpractice lawyer must be able to identify those cases which have strong liability and strong damages and reject the rest.  I am forced to turn down over 100 cases for every one I am able to take.  A malpractice lawyer who files three frivolous cases in a row will find himself or herself bankrupt.  For these reasons, the idea that the system is clogged with frivolous cases is ludicrous.

Add to all this the fact that many victims of malpractice just want to move on.  They don’t want to spend the next three or four years of their lives fighting to prove their case and to be reminded of what they have lost.  This is especially true when the deck is stacked against them and they will never receive what they consider to be a fair amount for their injury.

The result is a system that works poorly for everyone.  Doctors, hospitals and their insurance companies complain about being sued.  They complain that the cases are too complicated to be understood by juries, even though they almost always win in front of a jury.  They complain about how, even if they win, the cases are expensive and time consuming.  Patients complain about how expensive doctors and hospitals make the cases through the use of scorched earth defenses.  Even studies conducted by doctor groups have remarked upon the amount of money spent on defense, even when the patient’s claim was meritorious.

It is certainly no surprise to me that the number of malpractice claims continues to drop.  The system has been rigged and any sane person who recognizes that fact will act accordingly.  Only the most grievously injured patients with the clearest evidence of malpractice will be able to find competent lawyers to represent them.  All the other victims of malpractice just have to suck it up.  There must be a better way.

Posted in arizona certified personal injury lawyers, Doctors, Finding a Medical Malpractice Lawyer, Hospitals, Lawsuits, Malpractice caps, Malpractice costs, medical errors, Medical Malpractice, medical malpractice damages caps, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, plaintiff, tort reform, trial, Valuing Damages in Medical Malpractice Cases |

The Statute of Limitations Can Kill Your Malpractice Case

Posted by Bill Sandweg.

October 30, 2023

Every state has a statute of limitations for civil claims.  The statute, which may actually be a series of statutes, sets deadlines by which a claim must be filed or the right to sue is lost.  There are usually different deadlines for different types of claims.  In Arizona, the statute of limitations for personal injuries, which is the category that includes medical malpractice cases, is two years from the date the claim arose.  For many reasons, this is far less simple than it may sound.

Close up of time expired indicator on a parking meter. - HRWatchdog

It is difficult to overstate the importance of the statute of limitations.  You may have the greatest case in the world, but, if you file it a day late, you will lose.

One of the first potentially difficult questions is when did your malpractice claim arise?  It is pretty easy to determine when an automobile accident occurred that resulted in a broken leg.  It may be far less clear when, during a two week hospitalization, the patient suffered a nerve injury to her leg.

Another difficult issue arises when someone makes a mistake but the harm does not occur immediately.  The rule is that the claim does not arise until there is both a mistake and resulting damage.  Despite the rule, it may be risky to wait to sue more than two years after the mistake was made, even though there was no immediate damage.  You will almost always face a motion to throw your case out of court, so it makes sense to file early to be on the safe side.

There are some exceptions to the two year rule.  Some help the patient and some harm the patient.  One of the first and best exceptions for the patient is that the statutory period does not begin to run until a person using reasonable care would realize that she had been injured by medical negligence.  One example is a sponge left behind during a surgery.  The patient is not usually going to realize immediately that she has been injured.  The abdominal pain she is experiencing may be attributed to pain from the incision.  It may not be until someone takes an x-ray a year or more later that she realizes her pain is due to a sponge left inside her.  In this case, the statutory period would begin to run on the day she learns of the x-ray result.  This is called the “discovery rule” or “discovery exception” to the statute of limitations.  While the rule protects the patient from an unknown injury, there will almost always be a dispute over when a person exercising reasonable care should have realized they had been injured by a medical mistake.  The defense will undoubtedly argue she should have suspected her abdominal pain was due to medical negligence sooner and begun to investigate that possibility.

Perhaps the most important exception to the two year rule which harms patients arises when a defendant is an employee of the state or is the state itself.  The courts have held that some doctors and residents working at certain hospitals or in certain programs are employees or agents of the state.  If your claim is against someone who is an employee or agent of the state, you must serve a Notice of Claim on the employee and a number of other officers within 180 days of the day the claim arose.  If the claim is not accepted, and it almost never is, you must then file within one year of the date the claim arose.  The Arizona Notice of Claim statute, A.R.S. Section 12-821.01, is very specific about what must be in the Notice of Claim and upon whom it must be served.  Many people correctly believe that the Notice of Claim statute was created by the Legislature as a trap for the unwary.  Any technical failure to comply with the Notice of Claim statute will result in the case being dismissed.

As you can undoubtedly see by now, the statute of limitations can be tricky and can kill your case.  For example, you may have no idea that one of the doctors treating you is an employee of the state.  You may not contact a lawyer to see if you have case until more than six months after you discovered you were injured by medical negligence.  By then it may be too late to file a Notice of Claim.

Even if your potential medical malpractice case does not involve an employee or agent of the state, the sooner you contact a good medical malpractice lawyer, the better.  Any good malpractice lawyer is going to have to do a number of things to determine if you have a good case or not.  This will involve getting the relevant medical records, interviewing you and your witnesses, retaining potential expert witnesses to review the records, and performing medical and legal research into the issues raised by your case.  All of this takes time and, if you contact the lawyer too close to the expiration of the statute of limitations, she or he may not have enough time to investigate your case and may turn you down for that reason alone.

If you think you may have been the victim of medical malpractice, don’t wait.  Contact a good malpractice attorney promptly and let him or her evaluate your case.  If you wait too long, you may discover that the statute of limitations has barred your claim.

Posted in disclosure of medical mistakes, Doctors, Hospitals, Lawsuits, medical charts, Medical Malpractice, medical malpractice cases, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, plaintiff, retained surgical instruments, Statute of Limitations |

Country Living Can Be Bad For Your Health

Posted by Bill Sandweg.

October 23, 2023

Many Americans have an idealized view of country living.  Peace, quiet, nearby nature, a refuge from the stresses of the big city.  It sounds very inviting.  Many of those things do exist in the country, but there is a reason so many people live in the big city or its suburbs.  One of the advantages of urban or suburban living is access to good quality health care.  This can make a huge difference in your health and that of your family.

Country Living - richmondmagazine.com

Health care is provided primarily by doctors and hospitals.  It takes a substantial amount of money to build and staff a hospital.  The more people who live around a hospital, the more business the hospital will have and the more likely it is that it will be profitable.  Unprofitable hospitals close their doors.  The smaller the population in an area, the further apart the hospitals will be and the further residents may have to travel when they need to be hospitalized or need emergency health care.  In an emergency, every minute counts.

For exactly the same reasons, doctors need to be where they can make enough money to support their families.  The larger the population in the area, the more likely it is that a doctor will have enough patients to have a successful medical practice.  This is particularly true of specialists, who need a larger population base than family medicine doctors.  You want to have access to medical specialists.

Even when the local hospital stays open, it may limit its services.  A growing phenomenon in the United States is the “maternity desert.”  These are areas in which there is no nearby hospital offering labor and delivery services.  Because babies have the annoying habit of demanding to be born at all hours of the day and night, a hospital with a labor and delivery department must have delivery staff and an obstetrician available at all times.  If the number of likely births in an area is too small to support the practice of an obstetrician, the local hospital may have no choice but to close its labor and delivery department.

I see cases from all over Arizona.  Even though there are a lot more people in Phoenix and its neighboring cities than there are in Kingman or other places in rural Arizona, I see a lot of cases from rural counties.  Why is that you might ask?  The answer, as it so often is, is money.  There is simply a lot more of it in the cities than in the rural areas.

Money determines the size of the hospital and the services it can offer.  It also indirectly determines the quality of the doctors practicing in an area.  While there are many good doctors practicing in the rural counties of Arizona, there are also many doctors who could not get jobs at the big hospitals in Maricopa County or Pima County and who were forced to go the the rural counties to find work.

Another effect of smaller populations is that even good doctors will have hard time keeping their skills sharp, if they cannot use those skills very often.  This is particularly true when it comes to surgery.  Study after study has shown that surgeons who do the same procedure over and over for weeks or months at a time get the best results.  The best surgeon in the world will have a hard time matching even an average surgeon, if the best surgeon cannot do the procedure very often and the average surgeon does it every day.

The problem of rusty or seldom used surgical skills is aggravated when the surgery is a complex one requiring great skill and technique.  So, if you are contemplating a serious surgery, give strong consideration to coming to the nearest big city and finding a surgeon who does your operation so often, she can do it in her sleep.

Also keep in mind that there is really no such thing as minor surgery.  I have lost count of the so-called minor surgeries I have seen that have resulted in terrible injuries to the patient.  Minor surgery is the operation they do on your neighbor.  If they are doing it on you, it is major surgery and you want to be sure it is done right.

Finally, there is the problem of what happens when something goes badly wrong during a surgery, as it certainly will from time to time through no fault of the surgeon.  Who is available to come to the operating room on short notice to help fix the problem?  In the big city, a great surgeon may be just outside the door and ready to scrub in and help.  In a rural hospital, they may have to do what they can to stabilize the situation and transport the patient by air to Phoenix where a higher level of care is available.

Country life may be wonderful but it does have some drawbacks, especially when it comes to getting quality medical care.

Posted in Doctors, Fee for Service, General Health, health, Health Care Costs, Hospitals, Surgical Errors |

May You Have A Long And Healthy Life

Posted by Bill Sandweg.

October 16, 2023

This is a wish we likely have for all of our loved ones and friends.  Realistically, some of our loved ones and friends will fall by the wayside due to bad genes.  Some will have a predisposition to cancer or to heart disease.  When I see an otherwise healthy man in his 40’s have a major heart attack, the culprit is almost always a bad family history of early heart disease.  But for those who received an average or better than average assortment of genes, there is much we can do to increase the chances of a long and healthy life.

There is no secret to giving yourself the best chance of a long and health life.  You can’t turn around without seeing the advice and it is always the same advice.  It is always the same advice because we now have so much evidence about what works to make us healthy and what makes us unhealthy.  In retrospect, so much of it comes down to the way our bodies evolved.   Over hundreds of thousands of years, the environment for the human race was pretty much the same.  The further we get away from the conditions which our bodies evolved to meet, the more likely it is we will be unhealthy.

ACTIVITY

For gosh sakes, move.  Get up off that couch.  Our bodies were designed to move.  Our ancestors did not sit around the cave watching television.  If our ancestors did not move, they did not eat.  If our ancestors did not move, they got eaten.  Our bodies are finely tuned machines with thousands of biological processes going on in the background at any given moment.  We can keep the machine running best, if we keep moving.  Study after study has shown that any movement is better than none and that it is never too late to improve your health by beginning to be more active.

Researchers recommend 150 minutes of moderate activity per week, but you don’t need to be that active to enjoy the benefits of greater activity.  As the image below shows, activity is good for the brain, the heart, the lungs, the digestive tract, and the bones, and pretty much everything in between.  Activity can help stave off dementia, the risk of falls, heart attacks, osteoporosis, Type 2 diabetes, and many of the effects of aging.  Get going.

Australian physical activity guidelines - how much exercise should you be doing?

DIET

Our bodies need fuel to operate.  Just as with a nice car, you can’t put just anything into the tank and expect the engine to run at its best.  When we eat, we are eating not just for ourselves, but also for the billions of bacteria, viruses and fungi that live in our digestive tract.  They are happiest and do their jobs of making things we need, such as short-chain fatty acids, best when we feed them lots of fiber and a variety of unprocessed foods.

US News Ranks Mediterranean Diet Best Diet Again - Scripps Health

In the middle of the last century, researchers noticed that people who lived in the Mediterranean basin were living longer, healthier lives than people living elsewhere and started searching for the reason.  What they discovered is that their diet was the answer – what we now call the Mediterranean Diet.  It is very much what our ancestors ate and what our bodies evolved to use as fuel.  Lots of whole grains, beans, oily fish, fruits, and vegetables.  Low on red meat and definitely low on processed and ultra-processed foods.

Even if you don’t adhere strictly to the Mediterranean Diet, as with exercise, every little bit helps.

CONNECTIONS

A famous English poet once wrote, “No man is an island.”  We need other people in our lives to function at our best.  People who don’t have good webs of social contacts are often less healthy and die sooner than those with richer social lives.  Get out there.  Life is better with friends.  Call your friends and family and keep in touch.  Make new social connections.  Try to have a positive attitude.  Forgive others.  Take a moment to smell the roses.

A FEW DON’TS

I think it best to concentrate on the positives, but there are some things that it is best to avoid.  Perhaps the most important is smoking.  Never a good thing.  It damages the body in so many ways.

Don’t drink to excess or engage in binge drinking.  The latest research suggests that the negatives of alcohol outweigh the positives.  That may be but I am still going to have a glass of wine and don’t mind a bit, if you join me.

Don’t skimp on your sleep.  The body and the brain need a good sleep to recharge the batteries and to process the events of the day.  Too little sleep affects your performance and your health.  Take a nap.

The more of this advice you can follow, the better.  I wish you a long and healthy life.

Posted in General Health, health, healthy living, science news, Type 2 Diabetes |

A Complete and Total Failure – Part Three

Posted by Bill Sandweg.

October 09, 2023

The final betrayal of the public, and specifically the victims of Dr. Christopher Duntsch, aka Dr. Death, actually took place years before his surgical rampage through the Dallas area.  In 2003, the Texas legislature, responding to what it claimed was a malpractice crisis, enacted a special law applicable only to medical malpractice cases.  Under the terms of the law, non-economic damages arising out of medical malpractice were capped at $250,000.  Lost your wife and mother of your children to a bad doctor and she wasn’t working outside the home? $250,000 max award.  Lost your baby because the doctor didn’t come to the hospital when your baby got in trouble?  $250,000 max award.  Lost your arm, but you were already on disability when it happened?  $250,000 max award.  Chronic pain every moment for the rest of your life?  $250,000 max award.

Wondery poster

Of course, the Texas legislature trumpeted the cap on malpractice awards as a great victory for the citizens of the Lone Star State.  Malpractice caps would usher in a golden era in which doctors would flock to Texas to enjoy its freedom from frivolous lawsuits.  Costs of insurance for doctors would go down and the savings would be passed on to patients, resulting in lower medical bills.  A win-win for everyone.  That this golden era would be based on depriving victims of their legal rights went unmentioned.  Anyway, these people should be happy to sacrifice their rights for the good of the rest of the citizens of Texas.

To the surprise of no one who understands how these things work, there was no golden era for the citizens of Texas.  Doctors did not flock to Texas and most definitely the cost of medical care did not go down.  Two groups did enjoy a golden era and continue to do so:  Doctors, whose insurance premiums went down and who pocketed the savings; and malpractice insurance companies, that no longer have to worry about those pesky victims seeking justice for the loss of their loved ones or for the physical injuries done to them.

As it was intended to do, the law capping malpractice awards made it very difficult for patients, who were horrifically injured but who did not have large economic losses, to find lawyers willing to represent them against the doctors who injured them.  Medical malpractice cases are complex and expensive.  They require a lot of lawyer time, for which the lawyer does not get paid unless she wins the case.  The lawyer’s fee is usually a percentage of the recovery so, if the recovery ls limited to $250,000, the lawyer’s fee will similarly be limited.  Malpractice cases almost always involve numerous expert witnesses, who charge upwards of $600 per hour.  It is very hard for an experienced, competent lawyer to accept a malpractice case in which the total recovery is capped at $250,000.  Since most of the victims of Dr. Death were older or disabled or earning only low incomes when they went to see him, they did not have large economic losses.  As a result, they got turned down by the best malpractice lawyers in Texas thanks to the efforts of the Texas legislature.

As you can see, the Texas law giving doctors special protections that no one else in society gets was not based on the lawsuits against them being frivolous.  It doesn’t matter under the law how clear the malpractice was.  It doesn’t matter if the doctor who hurt you was Dr. Duntsch, who apparently could not perform a good surgery to save his life, or some other doctor.  The only thing that matters is that the most seriously injured people get their rights taken away from them so that doctors and their insurance companies can make more money.

The problem of getting justice for the victims of Dr. Duntsch was further complicated by the sheer number of them.  Even if a good attorney was willing to take a victim’s case, what little insurance Dr. Duntsch had could never compensate all of his victims, even after capping their non-economic losses at $250,000.  Any lawyer accepting as clients patients of Dr. Duntsch was going to have to participate in the division of a very small pie.  One lawyer took 14 of his patients as clients, mostly out of a sense of duty rather than because of the economics of the representation.  Ultimately, 19 of Duntsch’s patients received some form of settlement.  The settlements were confidential and small.

So there you have it.  The patients of Dr. Duntsch were betrayed by the medical system and by the Texas legislature.  The medical system made sure it protected itself first, even if that meant putting the public in danger and despite all of its prattle to the contrary.  The Texas legislature, which received substantial contributions from individual doctors and from their insurance companies, made sure their donors were preferred over the rest of the citizens of Texas.

And worst of all, nothing has changed.

Posted in disclosure of medical mistakes, Doctors, Finding a Medical Malpractice Lawyer, Health Care Costs, Hospitals, Lawsuits, Malpractice caps, Malpractice costs, Medical Costs, medical errors, medical ethics, Medical Malpractice, medical malpractice damages caps, medical mistakes, Medical Negligence, plaintiff, Secrecy, tort reform |

A Complete and Total Failure – Part Two

Posted by Bill Sandweg.

October 02, 2023

This is the second part of my discussion of the system failures that allowed Dr. Christopher Duntsch to become a Dallas area neurosurgeon and to damage patient after patient.

Wondery poster

Having resigned his staff privileges with his first hospital after negotiating an agreement for that hospital to say nothing negative about him, Dr. Duntsch was ready to begin again at a new Dallas hospital.  He was given temporary surgical privileges at his new hospital while it reviewed his references and processed his application for full surgical privileges.  It did not take long, however, for his incredible incompetence and huge ego to cause operating room disasters at the new hospital too.

One of the first patients he operated on at his new hospital bled heavily during the surgery, so much so that Dr. Duntsch complained to the nurses that he could not see what he was doing.  In a properly conducted surgery of the type being performed by Dr. Duntsch, there should never be that much blood.  The patient was taken to the ICU the next morning after she became unconscious.  In the ICU, it was discovered that pressure was building inside her brain.  She was transferred to another hospital, but never regained consciousness and died.  A neurosurgeon examining her case for the family concluded she became brain dead because Dr. Duntsch had blocked an artery to her brain with a screw and had been operating in the wrong area from the start.

While that patient was deteriorating in the ICU, Dr. Duntsch began another surgery.  The patient woke up after the surgery in tremendous pain and could not turn over or wiggle her toes.  The hospital brought in another spine surgeon to examine her.  He could not believe what he saw.  Dr. Duntsch had punctured the patient’s spinal canal in three places, had put a screw into nerves that controlled the legs and the bladder, and had cut away other important nerves.  The mistakes were so egregious that the surgeon wondered if perhaps Dr. Duntsch was an imposter only pretending to be a doctor.

By the end of the week, the new hospital informed Dr. Duntsch that his temporary privileges were revoked and that he would never operate there again.  As with the first hospital, no report of this was made to the Data Bank.  Dr. Duntsch was allowed to resign and move on to another hospital with no stain on his record.  He would injure more patients before he was stopped.

Things were beginning to happen, however.  Dr. Duntsch was reported to the Texas Medical Board, which, even though it had the power to summarily suspend his license, only opened a routine investigation.  It would be ten months before a summary suspension order was made and that was only after news of Dr. Duntsch’s surgical disasters was all over the Dallas news.  As is often the case, the medical board cared more about the “rights” of the Dr. Duntsch than it did about the safety of the public.

Without hospital privileges, Dr. Duntsch began operating on patients at a Dallas surgery center, a place where the surgeries are usually less complex than those performed at hospitals.  That didn’t save his patients, however.  One of the patients upon whom he operated at the surgery center had to be transferred to a full-service hospital after Dr. Duntsch severed an artery in her neck and cut her vocal cords.

Remarkably, Dr. Duntsch was able to obtain surgical privileges at another Dallas hospital, one which, surprise, surprise, was in a poorer section of town.  He only stopped operating when the Texas Medical Board temporarily suspended his license.  It was another six months before the suspension was made permanent.

In the meantime, some of the surgeons who had been trying to clean up Dr. Duntsch’s surgical disasters were able to persuade the Dallas District Attorney’s office to consider the possibility of criminal charges, something which almost never happens to a doctor.  It took over two years before Dr. Duntsch was arrested.  It was another two years before his trial began.  He was tried on a single count of elder abuse involving one of his patients, but the judge allowed the prosecutors to bring up all of the other patients he had injured.  He was convicted and is now serving a life sentence.

During his surgical career in Dallas, Dr. Duntsch had operated on 37 patients.  33 of them were injured by errors he made during their surgeries.  That is almost a 90% failure rate.  Many of these patients did what I routinely advocate before letting a surgeon touch you.  They looked up Dr. Duntsch’s credentials on the internet.  They looked to see if he had been disciplined by the Texas Medical Board.  What they found was a surgeon with excellent training, a clean record at the medical board, and many glowing reviews by people who claimed to have been his patients.  As you can see from the figures concerning his surgical failures, the patients who might be complimentary of Dr. Duntsch would have a hard time filling a phone booth.  Many of the reviews on line were fake.

While Dr. Duntsch is the one in prison, he is not the only one who is responsible for the damage he caused.  The doctors and hospital administrators, who had both the opportunity and the duty to report him and to stop him, put their own self-interest above that of the public.  Many of them made money off the surgeries performed by Dr. Duntsch.  These people absolutely failed in their duty to protect the public by keeping bad doctors off the street and out of the operating room.  Not one of them has ever been punished for this breach of trust.  And the worst of it is that nothing has changed.

If another Dr. Duntsch came along tomorrow, there is no reason to believe that the people who allowed Duntsch to go on his way to the next hospital would act any differently.  There is no reason to believe that the members of the public would have the ability to identify and protect themselves from a mistake prone doctor.  Fortunately, there are not many doctors as incompetent as Dr. Duntsch.  There are, however, a lot of incompetent doctors out there injuring patients and getting away with it.  That is the real shame of this whole tawdry episode.

Next week:  The final insult to the patients injured by Dr. Death.

 

Posted in disclosure of medical mistakes, Doctors, Hospital Negligence, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical mistakes, never events, plaintiff, Secrecy, Surgical Errors, tort reform |

A Complete and Total Failure – Part One

Posted by Bill Sandweg.

September 25, 2023

I recently finished listening to a podcast about a Texas neurosurgeon, who was so incompetent and injured so many people that he is now serving a life term for elder abuse and assault as a result of a surgery gone wrong.  The doctor was Dr. Christopher Duntsch and the podcast was called Dr. Death.  It was both mesmerizing and horrifying.  I have never heard of a surgeon who seriously injured so many people in such a short period of time.  The question, which is explored in the podcast but never really answered, is how could this person have ever gotten in this position and stayed there long enough to do the damage he did.  In this post and the one to follow, I want to discuss the entities that failed the public so badly and without which this tragedy could not have reached the magnitude it did.  In the third post, I will discuss the final betrayal of the patients of Dr. Death.

Wondery poster

Before Dr. Duntsch began his first job at a prestigious hospital in a well-to-do section of Dallas, he graduated from college, went to medical school, where he obtained both an MD degree and a PhD, took a neurosurgery residency, and then participated in a fellowship to get further training in spine surgery.   His academic credentials were impressive and he received glowing reviews from the doctors at his residency and his fellowship.  Given how quickly he demonstrated complete incompetence at his first job, you have to ask, “What were they thinking in giving him these glowing recommendations?”

The first failure of the system, which is supposed to protect us, was that it allowed Dr. Duntsch to complete a neurosurgery residency.  Based on later events, it is clear he was completely unqualified and that should have been obvious to the people he trained under.  It also appears that, because he spent a lot of time in the lab, he did very few surgeries during his residency.  Instead of the thousand or so surgeries performed by the typical neurosurgery resident, he did only about 100.  This is a stunningly low number.  He should have been required to do more surgery.  Had he done more surgery, perhaps he would have learned more.  Had he done more surgery, perhaps his lack of competence and temperament would have become so obvious that the system could not have covered for him.  On top of lack of surgical experience and incompetence, he was suspected of using cocaine and sent to a rehabilitation facility for a few months before being allowed to return to the residency program.  How is a person who is suspected of being under the influence of cocaine while operating get allowed back into a neurosurgery residency program?  As it was, when prospective employers called about Dr. Duntsch, the people at the residency program never mentioned any problems, even after they had to have known how incompetent and potentially impaired he was.

The second failure took place at the hospital where he got his first job.  Almost immediately, he began to experience horrific surgical outcomes.  The first patient he operated on was left with chronic pain when he operated on the wrong part of his back.  When he took the patient back to surgery to address the chronic pain, he left him partially paralyzed.  Soon after that, he operated on one of his best friends and turned him into a quadriplegic.  Another of his patients bled to death as a result of his not recognizing that he had severed an artery.  The hospital quickly realized he was a problem and revoked his privileges to perform surgery there.  It sent him off to find another job as a spine surgeon.  In order to avoid a potential lawsuit with him, the hospital agreed that, if ever questioned about his time there, it would simply say that there were no issues with him.  Although required by law to do so, the hospital did not report Dr. Duntsch to the National Practitioners Data Bank.  Had it done so, Dr. Duntsch may have found it difficult to find other employment as a spine surgeon.

By now a pattern was emerging that would continue and would allow Dr. Duntsch to hurt more people.  Everyone who came into contact with Dr. Duntsch was looking out for themselves first.  If protecting themselves from criticism, or a lawsuit, or public exposure meant letting Dr. Duntsch move on without consequences, so be it.

Next week, Dr. Duntsch moves on again and again before finally being stopped.

Posted in disclosure of medical mistakes, Doctors, Hospital Negligence, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, never events, Secrecy, Surgical Errors, tort reform |

Many Doctors Are Hurting

Posted by Bill Sandweg.

September 18, 2023

Probably most of the people who choose to become doctors or nurses do so because they want to help others.  For the doctors and nurses who have this as their reason for being, these are difficult times indeed.  More and more they are being forced to treat patients in a way that maximizes profits regardless of whether that treatment may be in the patient’s best interest or not.  This clash between the ideals of the health care professional and what they are being required to do by their employers is causing great emotional distress and driving many of the most idealistic from the profession.

Physician Burnout Costs The U.S. Health Care System Billions Each Year : Shots - Health News : NPR

Moral injury is the term applied when a person does something that conflicts with their moral compass.  The term has its origin in warfare where people sometimes find themselves doing things that repulse them and horrify them.  More and more often, it is being applied to doctors and nurses who cannot reconcile their obligation to their patients with the requirements laid down by their employers.

A growing swath of the health care industry has been taken over by private equity, which demands returns on its investment.  Private equity has been buying up doctor’s practices, clinics, hospitals, and home health companies.  Today over 70% of doctors are salaried employees, who must answer to administrators and executives.  That is a shocking number and the consequences to the health care system are profound.

Doctors increasingly see themselves, not as advocates for their patients, but as cogs in a larger machine that eats patients up and one end and spits them out at the other.  They see that it is no longer whether they have helped their patients that is important but how many patients did they see, how many tests did they order, and how many value units did they create.  Most of these doctors don’t mind working hard to serve their patients, but that is not what is happening today.

Our health care system, which was never a model of fairness and equity, is becoming less fair and more inequitable with every passing day.  If you have money, you usually have health insurance.  If you have health insurance, you are a potential cash cow that private equity can milk.

Doctors who complain are being treated like low level employees at Starbucks who complain.  They are being shown the door or disciplined in some way.  Some emergency room physicians who have raised concerns have found themselves looking at reduced hours or no work at all.  The result is that some doctors and nurses are looking to unionize to protect themselves.

In the years after World War II, the American Medical Association fought hard against the idea of universal health care.  Their stated reason was to preserve physician independence.  As the old adage goes, “Be careful what you wish for.”  Much to the detriment of society as a whole, we do not have universal health care and most doctors have lost their independence anyway as their employers ramp up their demands for profits.  Something needs to change.

Posted in Doctors, Fee for Service, Health Care Costs, Health Insurers, Hospitals, Medical Costs, medical ethics, Nurses |