• Get ready to read the scariest medical story of 2013

    Friend of the blog Brad Flansbaum sent me this. I read it twice, because it didn’t seem real. “Anatomy of a Tragedy” appeared in the Observer last week. It’s the story of what appears to have been one of the worst neurosurgeons of all time, who killed and maimed an insanely large number of patients in a rather short period of time. It’s also the story of how a system that doesn’t properly regulate its physicians can have no mechanism to protect them. Saul Elbein lays the blame on malpractice reform:

    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.

    The medical malpractice cap and the near-immunity for hospitals snapped two threads from the regulatory web. What remained was the Texas Medical Board.

    But the 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. The protections make some sense. The Legislature doesn’t want the Medical Board taking a doctor’s license—and livelihood—unnecessarily or based on flimsy or frivolous claims. But the result is that unless a doctor is caught dealing drugs or sexually assaulting patients—or is convicted of a felony—it is difficult to get his or her license revoked.

    Go read the whole thing. Prepare yourself, though, cause it’s horrific.

    We spend so much time discussing the malpractice system, and how it needs to be reformed to protect physicians and lower costs, that sometimes we forget why it’s there. Some doctors are bad, full stop. We need a mechanism to protect patients, too.


    • The “costs” of medical malpractice have always been greatly exaggerated, and the “reforms” have encouraged many physicians to lower, and lower significantly, their malpractice insurance coverage (down to the minimum required by the state’s financial responsibility law ($100,000/$300,000) or the minimum required by the hospital(s) in which the physician has privileges). The reforms and lower malpractice insurance limits, when combined with the asset protection techniques popular (and legal) in the state, make recovery against a physician dicey at best. Indeed, most medical malpractice attorneys have moved on to more fertile territory. I spend too much time trying to dissuade physicians from lowering their malpractice insurance limits (that adverse judgment will stay with you forever) and from adopting questionable asset protection techniques (that really is a “gift” to the spouse and you can’t get it back later when you wish to amuse the pretty young tech at the hospital), usually to no avail.

    • Unfortunately, Austin skipped over my chapter on patient safety and it looks like you didn’t read it either.

    • It would not surprise me if the doc in question simply left Texas and went to another state. My law firm many years ago learned how easy it is to do just that. We had sued a doc who had failed to drain a stent and caused a young boy to die. Turned out, he had been sued more than a half-dozen times. We got a recovery but the doc? He simply moved to PA yo establish a practice and for all I know is practicing there. MA did nothing to stop him as far as we knew; so why would PA?

      Med mal is a crazy area. In almost all other professions, ones mistakes don’t kill or maim. Yet, it is really hard to stop a bad doc. And actually it is hard to stop a professional in a licensed field period. It isn’t easy to stop a bad lawyer or plumber or electrician. Why? The power of a money rich profession to have rules/laws enacted to protect itself.

    • Very disturbing. I don’t think the malpractice provisions referenced would have changed much here, at least not on the front end. The changes to the Board’s procedures, however, have seriously hamstrung them in acting. The worst kept secret when med mal “reform” passed was that the trade off would be that the Board would actually start doing its job. They did. A few years later, they “reformed” that too.

      One, maybe only, positive thing in the story was that the physicians working around this asshat actually noticed and gave a damn.

    • Just another example of regulatory capture, a concept that do-gooder regulation fans don’t understand. Any time the state is given power to license teachers, lawyers, plumbers and physicians, the lobbyists of those professions manage to use the regulation to screw the public.

      • Two of the regulatory agencies were eliminated. The remaining one was remade to have less of a regulatory function. Absent any regulatory agencies this guy could keep operating forever.


        • Absent any regulatory agencies this guy could keep operating forever.

          Or maybe surgery would be done by teams and a boss would be overseeing him at all times. Systems to avoid error usually work better than trying to get more perfect people. It is not really predictable

      • Jimbino, do you advocate eliminating state licensure for surgeons? How do you then prevent a return to 2year, for-profit medical schools and unaccredited residencies?

    • I’m sure Adam Smith’s invisible hand, and the private marketplace, would have adequately dealt with this guy.

      Once all his patients died, he would be out of business, right?

    • I have worked with some bad surgeons, but this one takes the cake.Imagine if there was no Medical Board. The guy would still be operating.


    • What makes this even worse is that he was doing back surgery which has not been proven to net out positive among average surgeons.

      This is a case of changes in regulation that go in the opposite direction of what most people who study this say they should go. Since being good at doing surgery is not that closely correlated with being good at school we should make it easier, faster and less arduous to become a practitioner but easier to loos e the right to practice.

      BTW Not e that in many of the other industrialized countries they have loser pays court systems and so lower medical malpractice expenses and yet they produce good medical outcomes (although anecdotally there was the doctor in the UK (Harold Shipman) who killed over 200 of his patents.

      It is also important to keep in mind that this is just one story and we need to look at the overall effects if the reforms before we trash the Texas changes.

    • This seems to refute Milton Friedman’s argument in Capitalism and Freedom that we should do away with all medical licensing because we could just figure out who the bad doctors are, and they’ll go out of business. By his logic, people should have just quit going to Duntsch when they figured out that he wasn’t any good. Of course the problem is that the average lay person doesn’t know who isn’t good.

    • The story is a bit confusing in places. The first botched operation described in the article appears to have been a lumbar fusion on patient Barry Morguloff. The surgeon “nicked the patient’s vertebral artery,” according to the article, resulting in increased back pain and loss of function in the left leg. For the cervical fusion cases, “vertebral artery” makes sense, but not for the lumbar case which otherwise sounds like an ALIF. Maybe it was one of the iliac vessels. Major vascular injury in lumbar spine surgery occurs mostly to veins and rarely to arteries. Arteries can be thrombosed during ALIF but are not usually cut.

      This does not detract from the main point of the article, but it does cause one to backtrack and reread a couple of paragraphs.