By the time the Texas Medical Board had revoked his license to practice medicine in 2013, Dr. Christopher Duntsch had already left two patients dead and four others maimed as a result of his botched surgeries. “It’s a completely egregious case,’’ Leigh Hopper, then head of communications for the Texas Medical Board, told The Dallas Morning News in June. “We’ve seen neurosurgeons get in trouble but not one such as this, in terms of the number of medical errors in such a short time.” The real tragedy is that these errors were preventable. Doctors, patients, and lawyers had been telling the state Medical Board about the egregious errors but legislative reforms in the Lone Star State prevented the Board from revoking his license or censuring the neurosurgeon.
The Texas Observer notes, “In Duntsch’s case, we see the weakness of Texas’ unregulated system of health care, a system built to protect doctors and hospitals. And a system in which there’s no way to know for sure if your doctor is dangerous. Up until 2003, medical care in Texas was regulated by a system of checks. Hospital management, the court system and the Texas Medical Board formed a web of regulation that penalized and prevented bad care. But in the past 10 years, a series of conservative reforms have severely limited patients’ options for holding doctors and hospitals accountable for bad care.
In 2003, the Republican-dominated Texas Legislature capped pain-and-suffering damages in medical malpractice lawsuits at $250,000. Even if a plaintiff wins the maximum award, after you pay your lawyer and your experts and go through, potentially, years of trial, not much is left. The Legislature has also made suing hospitals difficult. Texas law states that hospitals are liable for damages caused by doctors in their facilities only if the plaintiff can prove that the hospital acted with “malice”—that is, the hospital knew of extreme risk and ignored it—in credentialing a doctor. But the Legislature hindered plaintiffs’ cases even more by allowing hospitals to, in most cases, keep credentialing information confidential. In effect, plaintiffs have to prove a very tough case without access to the necessary hospital records. This is an almost impossible standard to meet, and it has left hospitals immune to the actions of whatever doctors they bring on. Hospitals can get all of the benefit of an expensive surgeon practicing in their facility and little of the exposure. This has freed hospitals from the fear of litigation, but it’s also removed the financial motivation for policing their own physicians. “Accountability and transparency are the only way patients are to be protected and the public is to have any confidence in the healthcare system.”
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