Lawyers are a big impediment to disciplining bad doctors

If you are interested in patient safety and medical errors and haven’t read the story in the Texas Observer about a spectacularly incompetent neurosurgeon, you should. It is long but worth it. It will make you cringe.

The story includes many details about operations done poorly and patients suffering paralysis and death at the hands of Dr. Christopher D. Duntsch.

The Texas Medical Board is over-worked, slow to act and apparently toothless when it comes to disciplining doctors. Despite many complaints, it took them more than a year before it temporarily suspended his license on June 26, 2013.

However, the author of the piece, some Dallas area lawyers and at least one blogger are mistaken when they blame the malpractice monetary cap in Texas for contributing to the delay.

Yes, Texas has a cap on non-economic damages. Is that really the problem? Or is it what I and many others have written, that average duration of a malpractice suit is well over 4 years, with many cases lasting much longer than that?

If the only way this doctor could have been stopped was by malpractice litigation, he would still be operating today.

This dreadful situation was created by a number of factors.

As background, note that Dr. Duntsch has a remarkable curriculum vitae in that he graduated from medical school summa cum laude and was inducted into Alpha Omega Alpha, the med school equivalent of Phi Beta Kappa.

In addition to an MD degree, he also received a PhD and did two research fellowships and a minimally invasive spine fellowship. However, according to the website of the American Board of Neurological Surgery, Dr. Duntsch was not board certified.

In the Observer article, a general surgeon who assisted him on his first operation in Texas immediately recognized that Dr. Duntsch did not have good technical skills. The general surgeon said, “His performance was pathetic … He was functioning at a first- or second-year neurosurgical resident level but had no apparent insight into how bad his technique was.”

After another disaster, his operating privileges were suspended for 30 days after which time he was to have been supervised by another neurosurgeon at every procedure.

But the hospital Duntsch worked in, Baylor Plano, did not enforce that sanction and he continued to operate until he finally caused the death of a patient from bleeding.

He resigned from that staff and obtained privileges at Dallas Medical Center, which claimed that Baylor Plano said there were no issues with Duntsch’s performance. Of course, there were issues. And resigning from a medical staff while under restriction of privileges or even under investigation mandated a report, which apparently was not sent, from Baylor Plano to the National Practitioner Data Bank.

At Dallas Medical Center, two of his first three cases ended badly. One patient died, and the other suffered a major complication.

A surgeon who was brought it to re-operate on the patient with the complication could not believe what he found and called the medical board himself. He was told it would take time to process the information and investigate.

Although Dallas Medical Center “fired” Duntsch, he still was operating at two other hospitals. How he obtained privileges at those two was not explained.

At one, a patient woke up with both vocal cords paralyzed after a cervical spine fusion, and at the second one, the OR team had to “physically restrain” Duntsch from continuing a procedure that was going badly.

After another more detailed complaint by the general surgeon who had helped Duntsch with his first case, the medical board finally suspended his license.

There were four chances to have stopped this doctor sooner.

One, as many commenters on Reddit wondered, how was this surgeon allowed to graduate from his residency program? It is unlikely that he suddenly became a terrible surgeon after completing his training, although the medical board did find that he was impaired by drugs or alcohol.

Two, the doctors who knew of the bad cases could have been more vocal in opposing his applications for staff privileges at the area hospitals. They may have held back because of fear that they would be sued for libel or slander.

Three, the hospitals in the Dallas area could have been more diligent in investigating his past record, but neurosurgeons are cash cows so maybe his problems were glossed over.

Four, the Texas Medical Board could have been more proactive in the face of such serious allegations against the doctor.

All four of the above would have been much quicker and more efficient than any malpractice suit. The fact is that while too late to help several patients, the medical board suspension occurred in well under 2 years, still faster than any lawsuit would have been resolved.

This is key: “Every year the board is overseeing many more doctors and bringing in more money. But it doesn’t get to keep much of it: In fiscal year 2013, the board sent almost $40 million to the state’s general revenue fund, of which it got about $11 million back. (Like other state licensing agencies — the pharmacy board, the nurse practitioner board — the medical board operates at a surplus for the state.)”

As is true in many states, medical licensing fees are essentially a tax on doctors. Instead of going for better policing of the profession, the states use the money for other things. The doctors who assist with medical board investigations are unpaid volunteers.

Here’s a very telling passage from the Observer article.

“Why does it take so long to investigate a doctor? The process for resolving complaints is slow and painstaking, set up in statute to guarantee doctors the maximum legal protection.”

And who writes the statutes? The majority of legislators are lawyers, certainly not doctors.

Regarding the investigators, the article says, “They know if they try to discipline a doctor, the burden of proof will be on them. A poorly put-together case can mean months or years of expensive litigation. So the board members tend to act conservatively.”

I would wager that even a well put together case could mean months or years of expensive litigation too.

So the lawyers, who will tell you that they are the champions of patient safety and the salvation of mankind, are also the biggest stumbling block to rapid resolution of the problem of disciplining bad doctors.

By the way, If you Google Dr. Duntsch, you will see that he still has many outstanding ratings from various websites, including 4½ stars of a possible 5 from Healthgrades.

And check out the first couple of minutes of this video from March of this year produced by his public relations people for the “Best Docs Network.”

I feel for the patients and families who were harmed by this surgeon.

Texas is no different than most other states. This could happen again just about anywhere in this country

“Skeptical Scalpel” is a surgeon blogs at his self-titled site, Skeptical Scalpel.

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