Texas attorney general unfairly blamed in alleged killer surgeon case

By Jon Cassidy | Watchdog.org

HOUSTON – An old rule of lawyering has it that when the facts are on your side, you pound the facts, when the law is on your side, you pound the law, and when neither is on your side, you pound the other attorney.

If that other attorney happens to be Greg Abbott, attorney general and Republican gubernatorial candidate, then the Dallas Morning News will be happy to help you pound him.

“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,” is how the newspaper began its report.

Lefty bloggers put even more spin on it:

“If Greg Abbott has his way, there will be no justice for victims of a Dallas neurosurgeon that killed two patients and paralyzed four in a series of botched surgeries,” thanks to a “nearly impossible requirement that patients must prove the hospital intended to harm patients.” That law “severely and arbitrarily restricts the ability of patients to access the civil legal system,” writes Texas Watch.

You can expect the attack ads from his opponent Wendy Davis any day now.

Here’s what Abbott actually did to earn those slings and arrows: He argued the Legislature has the authority under the state constitution to define “malice” as, well, malice — that is, “a specific intent … to cause substantial injury or harm …”

It’s as mild and uncontroversial an argument as you’ll ever see. Lawmakers have the constitutional authority to employ definitions that match a word’s plain English meaning.

Somehow, this gets twisted into a story about Abbott, defender of psychopaths.

Last week, Abbott filed some papers in three lawsuits arising from Christopher Duntsch’s surgical rampage, which took place from July 2011 to June 2013, when the Texas Medical Board took his license away.

The Texas Observer laid out the story last fall, and it’s a real horror show: two dead, four paralyzed, nerves and arteries severed, bones unnecessarily removed, metal hardware meant to be placed on a patient’s spine found inches away during a repair surgery, sunk into the patient’s lower back muscles.

“Physicians who complained about Duntsch to the Texas Medical Board and to the hospitals he worked at described his practice in superlative terms,” the Observer wrote. “They used phrases like ‘the worst surgeon I’ve ever seen.’ One doctor I spoke with, brought in to repair one of Duntsch’s spinal fusion cases, remarked that it seemed Duntsch had learned everything perfectly just so he could do the opposite. Another doctor compared Duntsch to Hannibal Lecter three times in eight minutes.”

Lawsuits filed since have developed more details, including allegations that Duntsch was abusing cocaine, Xanax, OxyContin and other drugs.

Duntsch was effectively “fired” three times in his first year in Dallas, by the Minimally Invasive Spine Institute, Baylor Plano and the Dallas Medical Center, after disastrous operations at all three. Those institutes disagree about how much they told each other about Duntsch’s problems.

The lawyers aren’t going to have much trouble taking Duntsch for what he’s worth, but their problem is he isn’t worth all that much, as he was only practicing for two years before he was stripped of his license.

So they’re suing the hospitals where Duntsch operated. However, it’s been very hard to hold a hospital liable for its credentialing decisions since 1997, when a state Supreme Court case ruled plaintiffs had to prove “malice” to do so.

The Supreme Court used a broad definition of malice that included “gross negligence,” but in 2003, the Legislature wrote some tighter definitions of these legal terms, so that malice was one thing, gross negligence another, and so on.

In other words, you now have to show the hospital meant to harm you when it authorized a doctor to work there — a basically impossible standard to meet.

You can still sue a doctor or a hospital for gross negligence, just not over its credentialing decisions. For example, the plaintiffs have found a letter written by hospital officials they claim helped Duntsch get other jobs, where he allegedly hurt more people. A jury might find that negligent.

If any case tests the wisdom of making it so difficult to sue hospitals for a doctor’s actions, it’s the Duntsch case. The Legislature could consider applying here the same standards for negligence that apply to the rest of us, as a check on the abuses that tend to follow impunity.

There would be a downside to doing so: a surge in malpractice cases, as arguing negligence is as easy as playing “woulda, coulda, shoulda.” Lawmakers might choose to stick to the current principle: Hold the doctor responsible for malpractice, not the hospital.

It’s a judgment call, a matter for elected officials to decide. The trial lawyers here want a federal court to find it unconstitutional for Texas to write its own laws using plain English definitions. They want to break the bank, and they don’t care what else they break.

Abbott is simply doing his job in defending the state’s right to govern itself and write its own laws.

The facts in this case may be utterly one-sided, and you’d expect the plaintiffs to pound them. But journalists have no business pounding Abbott for upholding state law.

Contact Jon Cassidy at jon@watchdog.org or @jpcassidy000. If you would like to send him documents or messages anonymously, download the Tor browser and go to our SecureDrop submission page: http://5bygo7e2rpnrh5vo.onion