Why hospitals keep physicians and providers with lots of bad outcomes

Before I went to law school, I was a hospital administrator. When I think back to those years, I recall meetings. Lots of meetings.

Hospitals have numerous committees. Quality improvement. Accreditation. Peer review. Whatever the name, the overarching purpose of hospital committees is to improve patient safety in some shape or form.

That’s why I found the news about a hospital hiring an independent, external review of its cardiac surgery program so interesting. Why would a licensed, accredited hospital with so many committees filled with hospital administrators and clinical leaders need an outside review?

While I don’t know the whole story about this particular hospital, I think the answer, in general, is that the committee system at most hospitals needs life support—that’s because the committees are pretty much as good as dead anyway.

In this particular case, though, the trigger for an outside review was news breaking that a cardiac surgeon who worked at the hospital had settled 21 medical malpractice cases. By taking the rare step of letting outsiders review how the hospital has been run, I think the hospital leadership took an important first step—essentially admitting failure.

The cardiac surgeon whose medical conduct and performance was at issue was linked to five surgical errors in five weeks that caused patient injury or death. The hospital was accused of protecting the surgeon despite the alarm cluster and trend of bad outcomes.

When I represented one of the victims of Christopher Duntsch, MD, a Dallas, Texas area surgeon dubbed “Dr. Death,” I saw first-hand how the medical peer review and credentialing committees at some Texas hospitals are simply broken.

According to the Dallas Observer, Dr. Duntsch performed 38 surgeries in a two-year period in the Dallas area. Only 3 of those 38 patients came out of the operating room with no complications. Yet, hospital administrators and clinical leaders allowed him to continue to practice, despite being aware of the complications, bad outcomes, and complaints from patients and physicians and healthcare providers.

There are two factors that I believe motivate hospitals to allow incompetent physicians, surgeons, physician assistants, nurse practitioners and certified registered nurse anesthetists (CRNAs) to continue to work in their facilities:

Money. There’s a fiction under Texas law called the corporate practice of medicine doctrine. It stands for the proposition that corporations can’t practice medicine, only physicians can. Oh, what wishful thinking! Here’s the reality: Physicians and surgeons (or others) who perform procedures are huge profit centers for hospitals. They allow hospitals to rake in money for operating room fees and post-operative hospital care. If they terminated a physician’s staff privileges, the patient referrals and cash flow that go with them disappear instantly.

In other words, there’s a built in financial incentive for hospitals to look the other way when it comes to bad doctors and providers.

Legal protections. To make matters worse, in many states, such as Texas, there’s essentially no accountability for a hospital’s decisions to keep a dangerous physician on its medical staff. Myriad privileges prevent the public from ever knowing the due diligence the hospital undertakes—or doesn’t—to ensure physicians and other providers of medical care are competent.

Further, under Texas law, the plaintiff has no cause of action for negligent credentialing, which is the process whereby a hospital decides to let a doctor or provider work on its medical staff.  To pursue a claim on these grounds under Texas law requires a showing of malice, which includes actual knowledge. The Texas Supreme Court has acknowledged that it is likely impossible to prove malice when privileges prevent a plaintiff from obtaining discovery of how a hospital’s credentials committee, peer review committee, or quality improvement committee examined a physician’s qualifications or competence.

This is why conventional and social media make important contributions to patient safety. So does medical malpractice litigation.

When lawsuits started and news about Dr. Death’s complications broke, more and more patients and families came forward. As long as a system of privileges is in place, litigation and public discussion in the media are two of the only ways that patients and families can know whether a botched procedure is an isolated complication or an everyday occurrence for a surgeon or hospital.

If you’ve been seriously injured because of poor hospital, surgical, or medical care in Texas, then contact a top-rated, experienced Texas medical malpractice attorney for a free consultation about your potential case.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.