As a Houston, Texas, medical malpractice lawyer, I find that it’s not often that a defendant from one of your cases is the subject of the number one podcast on iTunes. On the other hand, it’s also unique to see a defendant from one of your cases in jail because of operating room conduct.
This week, though, both rarities came true in Christopher Dunstch. Back in 2014, then-Dr. Duntsch was a neurosurgeon. I sued him in Dallas federal court on behalf of my client who was rendered quadriplegic after a Duntsch back surgery.
“Dr. Death” podcast
Today, I read a piece in The New Yorker that reviewed the Wondery crime series “Dr. Death,” which is based on the real-life medical practice and malpractice of Christopher Duntsch. Since the podcast launched on September 4, 2018, it has been downloaded over eight million times.
As told in “Dr. Death,” the Dunstch story begins in a second-person point of view, following the transformation of an innocent patient into the victim of a monstrous malpractice. The host, Laura Beil, said something that rings true to me: “We’re at our most vulnerable when we go to our doctors. We place our trust in the person at the other end of that scalpel.”
How Texas law allows incompetent doctors to keep practicing
One of the podcast episodes explains how one of the hospitals where Dr. Duntsch worked allowed him to leave its medical staff voluntarily, which prevented other hospitals from learning of past concerns with his operating room conduct. Unfortunately, by the time those other hospitals realized what was going on, several patients were either dead or paralyzed.
Federal and Texas laws require hospitals to check the backgrounds of physicians who apply to join their medical staffs. This process is called credentialing. As a former hospital administrator, I know that hospitals also must re-check physician credentials on an annual basis. In addition, when there is a potential quality of care issue, there is a peer review process where a committee of physicians reviews the care provided by the doctor in question.
Nearly everyone I speak with is surprised to learn that the Texas Health & Safety Code keeps the credentialing and peer review processes completely confidential and away from public view.
As a practical matter, this means that consumers selecting a doctor are unable to learn whether a physician has a blighted history of bad outcomes and quality of care concerns. Even in the context of a medical malpractice lawsuit, this information is out of reach of a subpoena.
Additionally, I believe that the law provides hospitals with the temptation to sweep a problem under the rug. This is what, in my opinion, happened with Dr. Duntsch. Instead of initiating a disciplinary action that may invite litigation between the hospital and the doctor, a hospital may invite the physician to resign from the medical staff, in exchange for no adverse action on his or her record.
I believe that the law incentivizes this sort of trade-off by keeping hospital credentialing and peer review actions or inactions privileged in a medical malpractice context. To make matters worse, the Texas Health & Safety Code imposes a burden of malice to prove a claim of credentialing misconduct. Malice requires proof of actual, subjective knowledge. Yet, how can a plaintiff produce evidence of actual, subjective knowledge when all credentialing and peer review documents are privileged? A former Chief Justice of the Texas Supreme Court answered that question. In a dissenting opinion, he explained that it was “virtually impossible” to bring a credentialing claim under Texas law, no matter what the facts. St. Luke’s Episcopal Hospital v. Agbor, 952 S.W.2d 503, 506 (Tex. 1997).
We are here to help
If you or a loved one has been seriously injured or even died because of poor medical, surgical , or hospital care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
All consultations are free, and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.
Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.