The story of Dr. Christopher Duntsch is so alarming as to be almost unfathomable. It’s the sort of story a person could make a compelling horror movie about: A handsome, well-spoken neurosurgeon moves to town, hires a slick marketing team, and begins to assemble a base of patients in need of minimally-invasive spinal surgeries—only to perform such bizarrely incompetent operations that his fellow doctors slowly become convinced that the surgeon is actually intentionally maiming, paralyzing, and killing the innocent patients who have come to him for pain relief.
In the movie version of the story, though, there would—one would expect—be some justice for the survivors of Duntsch’s operations, or for their families. But this is Texas, and thanks to tort reform, such justice is hard to come by. And, if a recent intervention by Attorney General Greg Abbott into federal lawsuits filed by three of the families who suffered on Duntsch’s operating table works out the way the Republican nominee for Governor hopes, it may stay that way.
Saul Elbein at the Texas Observer wrote a fairly definitive account of Duntsch’s practice and the irregularities of his operating style last August. It’s full of horrific details about the specifics of the operations—slicing arteries, packing coagulants around cuts in ways that seriously damage their spinal cords, removing bones “not required by any clinical or anatomical standard,” placing spinal fusion hardware inches away from where it was supposed to go, amputating nerve roots, and making unnecessary screw holes in the wrong places in patients’ spines.
The Observer’s account talks to doctors who practiced alongside Duntsch and who performed surgeries after he’d done his operations in order to try to repair the damage, and these accounts are also shocking:
At first, [Dr. Robert] Henderson [a fellow neurosurgeon at Dallas Medical Center] thought Duntsch might be an impostor. He faxed over a picture of Duntsch to the residency program at the University of Tennessee Health Science Center to see if Duntsch had graduated.
“I couldn’t believe a trained surgeon could do this,” Henderson told me. “He just had no recognition of the proper anatomy. He had no idea what he was doing. At every step of the way, you would have to know the right thing to do so you could do the wrong thing, because he did all the wrong things.”
Another doctor, who had been present when Duntsch had botched one of his first operations while at Baylor Regional Medical Center of Plano, had written a forceful letter outlining what he saw as an intentional pattern of maiming and killing his patients:
Later in June 2013 [Dr. Randall] Kirby sent a sworn statement to the Medical Board in which he laid out all of Duntsch’s patients he knew about and included reports from many of the surgeons who had worked on them. Near the end of his report, Kirby wrote, “The [Medical Board] must stop this sociopath Duntsch immediately or he will continue [to] maim and kill innocent patients.”
In post-surgery and autopsy reports detailing what went wrong in Duntsch’s cases, words like “misadventure” pop up readily. Still, it took a year and a half for anyone in a position to prevent Duntsch from practicing to act. During that time, another two of Duntsch’s patients died from complications involving minimally-invasive operations and four were left paralyzed.
Regulations surrounding medical licenses in Texas are tough to enforce, and the state errs on the side of protecting doctors. That’s not an unreasonable position—health is fragile, even terrific doctors can have results for patients that end badly, frivolous complaints could ruin careers that took decades to build—but what’s hard to accept is what little power anyone has to take action against a doctor like Duntsch, who maimed and killed patients for 18 months, despite complaints to the state medical board from fellow doctors that started very early.
The medical board, though, isn’t the sort of regulatory agency that’s equipped to act quickly or decisively in these situations. As Elbein writes at the Texas Observer:
[T]he Medical Board wasn’t designed to be an aggressive enforcer. It was mostly designed to monitor doctors’ licenses and make sure the state’s medical practitioners are keeping up with professional standards. The board’s mandate, spelled out in the Medical Practice Act, recognizes a doctor’s license as a hard-won, valuable credential. Doctors’ rights are to be protected at every step of the process. The board can’t revoke a license without overwhelming evidence, and investigations can take months, with months or years of costly hearings dragging on afterward.
If the Texas Medical Board isn’t the entity responsible for enforcing standards of care, that falls on the hospitals that grant surgical privileges to the doctors—but, as the lawsuits that surround Duntsch and Baylor Regional Medical Center of Plano make clear, the legislature has given those hospitals little reason to rein in a doctor like Duntsch.
Those lawsuits challenge—in federal court—the constitutionality of Texas House Bill 4, which passed in 2003 and changed the standard required to prove malice in malpractice suits from “gross negligence” in allowing a doctor like Duntsch to continue to practice despite a pattern of patients dying or waking up paralyzed on his operating table, to proving that the hospital actually intended to harm those patients.
That’s a standard that’s “ridiculously high,” the Dallas Business Journal quoted Dallas malpractice lawyer Frank L. Branson as saying—but it’s a standard that Attorney General Greg Abbott is convinced is constitutional, and one that he’s chosen to intervene in to defend in the lawsuits surrounding Duntsch and Baylor Regional.
The Dallas Morning News says that Abbott’s defense of the law could make it much harder for the plaintiffs to win their suits against the hospital:
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.
The Attorney General’s office isn’t obligated to defend laws like these, but it has the option to do so. The tort reform package in HB 4 was a popular law when it passed in 2003, with provisions that made it difficult to sue hospitals and which capped awards for pain and suffering at $250,000. But it also means that, with minimal consequences in the courts for allowing a doctor like Duntsch to continue to practice, there’s little incentive for hospitals to take swift action when a Christopher Dunstch is performing operations that leave patients maimed or dead. According to the Morning News, Baylor made a profit of $65,000 on each of his surgeries.
Ultimately, this will play out in the courts. In the meantime, another of Duntsch’s patients—this time one who woke up after surgery with no feeling in his left leg, after Duntsch’s operation left bone fragments lodged in the nerves of his back—is expected to file suit later in the week.
Update (3/27, 8:35pm): Attorney General Abbott’s sent over a comment on the Dallas Morning News article. It reads:
“The Dallas Morning News’ article is misleading and filled with errors about the State’s involvement in this case. First of all, the State is not defending the hospital or the doctor in this case–or their alleged conduct. Second, as the State’s own court filings make clear, the ‘sole purpose’ of the State’s intervention is to defend the constitutionality of a state tort reform law that is being challenged in the plaintiffs’ lawsuits. Third, despite the plaintiff lawyers’ vitriolic rhetoric, they fail to mention that they did not oppose the State’s intervention in these cases. These material details make clear that the State’s involvement in this case is not being accurately portrayed. The fact of the matter is that the Attorney General’s Office is involved for the sole purpose of defending a state statute from a constitutional challenge. If the hospital or doctor have violated the law, then they will be held accountable and nothing in the State’s court filings oppose the plaintiffs on that front.”